2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-7-2001

Duffy v. Paper Magic Grp Inc

Precedential or Non-Precedential:

Docket 00-2818

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Recommended Citation

"Duffy v. Paper Magic Grp Inc" (2001). 2001 Decisions. Paper 205.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/205
Filed 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 the 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., against her 

former employer, Paper Magic, Inc. Duffy argues that she 

was constructively discharged as a result of a continuing 

pattern of discrimination by Paper Magic. She appeals from 

the District Court's summary judgment in favor of the 

defendant. We will affirm. 

I. 

Duffy began working for Paper Magic in 1986 as a 

Customer Service Representative. She was promoted to 

Senior Customer Service Representative in January 1987, 

and to Assistant Customer Service Manager in July 1989. 

As Assistant Customer Service Manager, her 

responsibilities included overseeing the order processing 

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 than 

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 Service 

Representative, even though her duties remained the same. 

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In 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 alleges 

that after Pica arrived, one of her supervisors refused to 

cooperate with her, continually harassed her, and refuted 

any of her suggestions to improve or correct matters 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 of her 

supervisors explained that she and Pica were getting 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, made Pica the 

new Customer Service/Order Processing Manager. Duffy 

contends that she expressed interest in this position but 

her supervisor discouraged her because of her age, and of 

the long hours the position would ostensibly require. 

In addition, Duffy alleges that she was prevented from 

participating in the hiring process for the Order Processing 

Department, despite her supervisory position. She claims 

that Pica handled all interviews, and rebuffed her input. 

She further contends that, unlike the Customer Service 

side of the department, Order Processing had to wait 

months before getting approval to hire new staff. As a 

result, Duffy worked overtime hours, but unlike other 

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 seminar for 

supervisors. She further maintains that she was the only 

supervisor in the company who was given a weekly"report 

card" on her job performance by the School Marketing 

Department. She was also removed from all committees, 

including the computer committee and the total quality 

management committee. Additionally, she contends that 

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 cooperation from 

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others for work-related projects. She states that she 

complained about such conduct but nothing changed. As a 

result of these working conditions, Duffy's health 

deteriorated, requiring that she consult with a physician. 

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." Another 

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 weakness in 

the areas of supervisory, managerial, and organizational 

skills. For example, in 1996, she was rated "high average" 

for her work but "low average, at best" for her supervisory 

skills. However, Duffy's salary was not reduced as a result 

of her evaluation nor were her responsibilities modified. She 

received an increase in salary for each year between 1986 

and 1996 and her salary doubled in the ten years that 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 Equal 

Employment Opportunity Commission. She also filed an 

administrative complaint with the Pennsylvania Human 

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 basis for 

equitable tolling of the time limitations. 

Later, Duffy filed this action against Paper Magic, alleging 

claims under the Age Discrimination in Employment Act, 

29 U.S.C. S 621 et seq., the Americans with Disabilities Act, 

42 U.S.C. S 12101 et seq., the Worker Adjustment and 

Retraining Notification Act ("WARN"), 29 U.S.C. S 2101 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 her PHRA 

and wrongful discharge claims. The District Court then 

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partially granted Paper Magic's motion, and dismissed 

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 impairment 

under the ADA. The court dismissed Duffy's WARN claim 

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 within the 

purview of the ADEA and entered summary judgment in

favor of Paper Magic. 

Duffy filed a notice of appeal, challenging only the entry 

of summary judgment in favor of Paper Magic on her claim 

of age discrimination. We exercise plenary review the 

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, compensation, 

term, conditions, or privileges of employment on the basis 

of their age. See 29 U.S.C. S 623(a)(1). Age discrimination 

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 based 

on indirect evidence, a plaintiff may establish a prima facie 

case of age discrimination under the ADEA by 

demonstrating that she: (1) was a member of a protected 

class, i.e., that she was over forty, (2) is qualified for the 

position, (3) suffered an adverse employment decision, (4) 

and was ultimately replaced by a person sufficiently 

younger to permit an inference of age discrimination. See 

id. at 973.1 To survive a motion for summary judgment, the 

_________________________________________________________________ 

1. A prima facie case creates an inference of unlawful discrimination. The 

burden of production then shifts to the employer who can dispel the 

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evidence must be " `sufficient to convince a reasonable 

factfinder to find all of the elements of [the] prima facie 

case.' " Id. (quoting Keller v. Orix Credit Alliance, Inc., 130 

F.3d 1101, 1108 (3d Cir. 1997) (en banc)). Here, the 

District Court found that Duffy had failed to show a prima 

facie case because she did not produce evidence sufficient 

to convince a reasonable fact finder that she had 

established any adverse employment action. We agree. 

Duffy asserts that she established a prima facie case 

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 id. at 974. 

Specifically, a court must determine "whether a reasonable 

jury could find that the [employer] permitted conditions so 

unpleasant or difficult that a reasonable person would 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 management 

delayed in providing needed assistance; 3) her supervisors 

made negative remarks about her age; 4) she was excluded 

from a training seminar for managers; 5) she was removed 

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 though 

she was the Supervisor; 7) other employees and 

_________________________________________________________________ 

inference by articulating a legitimate, nondiscriminatory reason for its 

actions. See Connors, 160 F.3d at 974 n.2. If the employer meets this 

burden, the employee must then prove by a preponderance 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 and the employer has 

no burden to proffer a reason for any action. Spangle v. Valley Forge 

Sewer Auth., 839 F.2d 171, 174 (3d Cir. 1988). 

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departments failed to cooperate with her; 8) she was the 

only supervisor in the company who was given a weekly 

"report card" by the School Marketing Department; 9) 

Human Resources reprimanded her for failing to participate 

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 sufficient 

evidence that she was constructively discharged or 

otherwise suffered an adverse employment action. The 

Court reasoned that Duffy's testimony focused almost 

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 constructive 

discharge. Specifically, Paper Magic never threatened to fire 

Duffy, encouraged her to resign from her position, or 

involuntarily transferred her to a less desirable position. 

Moreover, she received satisfactory job evaluations

throughout her employment. And finally, there was no 

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 recovery. 

See id. (noting that the plaintiff "cannot rely on many of the 

factors commonly cited by employees who claim to have 

been constructively discharged") (emphasis added). The 

absence of the factors in Clowes is not necessarily

dispositive. Nonetheless, we agree with the District Court 

that Duffy was not constructively discharged. 

We have held that constructive discharge may occur 

"when the employer is aware that the employee has been 

subjected to a continuous pattern of harassment and the 

employer does nothing to stop it." Aman v. Cort Furniture 

Rental Corp., 85 F.3d 1074, 1084-85 (3d Cir. 1996). In 

Aman, the plaintiff was continuously subjected to raciallybased insults and false accusations of favoritism, 

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wrongdoing, 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 that she 

needed to perform her job; and her employer threatened to 

"get rid of her." 85 F.3d at 1077-80. When the employee 

retained an attorney and submitted a formal complaint of 

discrimination, she was subjected to additional false 

accusations of incompetence and the abusive conduct of 

her co-workers intensified. See id. at 1085. On these facts, 

we held that the employer was not entitled to summary 

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 raise the 

issue of constructive discharge.2 Specifically, the plaintiffemployee filed an affidavit stating, inter alia , that: she was 

the only woman in a management position; she was 

excluded from management meetings; the general manager 

of the restaurant boasted that the plaintiff `would not be 

there long'; management told other employees that the 

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 accused her of 

stealing, drinking, and fraternizing with employees; and on 

one evening, she discovered wine bottles in her locker to 

make it appear as if she were stealing. See id. at 1228. 

Additionally, a co-worker submitted an affidavit praising 

the plaintiff 's work and reputation and stating that 

management disliked women. In a complaint filed with the 

EEOC, the plaintiff alleged that she was not permitted to 

order supplies although a male manager was able to do so, 

and that she was replaced by a male friend of the chef. The 

plaintiff resigned, stating that her decision was precipitated 

by the accusations of stealing. 

_________________________________________________________________ 

2. We also emphasized that a single, non-trivial incident 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 liability . . . ." Id. 

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We reversed the District Court and held that the record 

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

from which a fact-finder could infer that conditions at the 

restaurant were so intolerable that a maitre'd of reasonable 

sensitivity would be forced to resign," and that the 

plaintiff 's affidavit alone was sufficient to defeat 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 rather 

than an isolated incident, the situation does not reach the 

threshold of "intolerable conditions." Although certainly 

stressful and frustrating, the alleged conduct would not 

compel a reasonable person to resign. For example, in 

contrast to the changing duties of the plaintiffs in Aman, 

Duffy's tasks remained the same while she was the 

Supervisor of Order Processing. She was never assigned 

degrading or menial tasks and she consistently received 

pay increases during her employment. Duffy does allege 

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 required her 

to work longer hours until help arrived. This made her job 

more stressful, but not unbearable. See Connors , 160 F.3d 

at 975 ("[E]mployees are not guaranteed stress-free

environments and [ ] discrimination laws`cannot be 

transformed into a palliative for every workplace grievance, 

real or imagined, by the simple expedient of quitting."). 

And, as Duffy admits, Paper Magic did eventually provide 

assistance to her department. 

Like the staff shortages, Duffy's exclusion from 

committees, hiring decisions, a single staff meeting, 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 circumstances 

were too onerous to bear, no reasonable trier of fact could 

conclude that exclusion from committee membership or 

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lack of hiring authority renders working conditions

objectively intolerable. See Gray, 957 F.2d at 1083 ("The 

law does not permit an employee's subjective perceptions to 

govern a claim of constructive discharge."). 

Moreover, Duffy's weekly "report card" and lack of 

overtime pay do not warrant resignation. Although the 

"report card" constituted close supervision, Duffy does not 

allege that it placed greater requirements on her than 

others or imposed unreasonably exacting standards of her 

job performance. It merely provided her with feedback and 

information. Thus, it does not amount to overzealous 

supervision that supports an inference of intolerable 

working conditions. With respect to the lack of overtime 

pay, it is undisputed that Duffy was an exempt supervisory 

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. These health 

problems support an inference that Duffy's environment 

was stressful. However, as noted above, a stressful

environment does not amount to constructive discharge. 

Duffy's contentions that her supervisors, because of her 

age, made disparaging remarks and failed to give her 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 older and 

wasn't remembering things as she got older." She also 

contends that another supervisor reminded her that she 

was getting older and suggested that she look for another 

job with fewer hours. She alleges that these comments were 

made several times over the course of her employment with 

Paper Magic.3 Although these comments were 

inappropriate, they were not sufficiently derogatory 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 intolerable 

working conditions. 

_________________________________________________________________ 

3. Duffy also alleges demeaning remarks about her weight but they are 

not relevant to her age discrimination claim. 

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Regarding her "missed" promotion, Duffy's deposition 

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 reports that 

her supervisor told her that "she was getting older now" 

and that she "should just do her regular job." We recognize 

that being "passed over" for a promotion based on age 

rather than merit would be highly frustrating and upsetting 

to a reasonable employee. However, because Duffy has not 

produced evidence that she was qualified for the position of 

Customer Service/Order Processing Department Manager, 

her missed promotion cannot support her constructive 

discharge claim. See Spangle, 839 F.2d at 173-74 

(dismissing constructive discharge claim where employee's 

prima facie case was insufficient because he was not 

qualified for supervisory position). Duffy's job appraisals 

indicate weakness in the areas of supervisory, managerial, 

and organizational skills. For example, Duffy was counseled 

on several occasions to improve her supervisory skills. In 

her 1994 appraisal, her supervisor wrote: "It is felt that 

Bernie at times is part of the problem not the solution. 

Bernie must become a supervisor and separate herself from 

friends and the company grapevine." Duffy's 1995 

performance evaluation included similar comments 

concerning her supervisory and management skills:"No 

problems with quality of work--only question is quality of 

supervision part of job." The 1995 report concludes: 

"Bernie, as an individual worker, is high average or above, 

but when considering performance as m[anager] of 

dep[artment], the rating is low average, at best, and below 

average at times when she is upset or in disagreement with 

m[anagement]." In 1996, her overall performance was rated 

average, but she was again rated "low average, at best" for 

her supervisory skills. Without proof of her qualification 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 age 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 she was 

not constructively discharged. When pressed to explain why 

she elected to resign, Duffy responded that her decision 

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

college and her resultant financial ability to leave. She 

stated: 

 Well, I thought about it, and I just couldn't take it no 

 more. I wasn't getting cooperation from anybody. 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 claim 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 successful 

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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