2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2012

Elaine Stites v. Alan Ritchey

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1275

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Elaine Stites v. Alan Ritchey" (2012). 2012 Decisions. Paper 1555.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1555
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-1275

_____________

ELAINE STITES; LAUREN BALL; BARBARA BUCHMAN,

 Appellants

v.

ALAN RITCHEY, INC.

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 2-09-cv-00392)

District Judge: Honorable Eduardo C. Robreno

____________

Argued: December 6, 2011

____________

Before: HARDIMAN, BARRY and VAN ANTWERPEN, Circuit Judges

(Opinion Filed: January 23, 2012)

____________

Jeremy M. Cerutti, Esq. (Argued)

Ari R. Karpf, Esq.

Karpf & Karpf

3331 Street Road

Suite 128, Two Greenwood Square

Bensalem, PA 19020

Counsel for Appellants
2

David M. Walsh, Esq. (Argued)

Jackson Lewis

220 Headquarters Plaza

East Tower, 7th Floor

Morristown, NJ 07960

Counsel for Appellee

____________

OPINION

____________

BARRY, Circuit Judge

Elaine Stites, Barbara Buchman, and Lauren Ball appeal the District Court’s grant 

of summary judgment on their reverse race discrimination and retaliation claims brought 

under 42 U.S.C. § 1981, Title VII, and the Pennsylvania Human Rights Act. We will 

affirm, essentially for the reasons stated by the District Court in its thorough opinion.

I.

Because we write for the parties, we recount only the essential facts, and we do so 

in the light most favorable to Appellants. Appellants, who are Caucasian, were employed 

as inspectors by Alan Ritchey, Inc. (“ARI”), a company that, prior to closing all of its 

mail transport facilities, serviced mail transport equipment (“MTE”) pursuant to a 

contract with the United States Postal Service (“USPS”). Inspectors were required to sort 

through bins of MTE to check for damaged or defective products. To track how 

efficiently individual inspectors performed their work, ARI utilized a software program 

that calculated an individual inspector’s efficiency rating based on the number of items 
3

serviced by that inspector in a given time period. 

In 2006, in response to a steady decline in the volume of MTE arriving at its 

facility for servicing, ARI initiated a Reduction in Force (“RIF”), which resulted in the 

layoff of six employees, including Ball. In early 2007, as its revenues continued to 

plummet, ARI conducted a second RIF, this time laying off fifteen employees, including 

Buchman. In September 2007, Stites was terminated in accordance with ARI policy after 

failing to meet the minimum required weekly efficiency rating for the fourth time that 

year. In both RIFs, ARI conducted a “Reduction in Workforce Analysis,” which ranked 

employees based on the efficiency ratings, and eliminated those employees with the 

lowest ratings, regardless of their race. Each time, this methodology resulted in the 

termination of Asian and non-Asian employees; similarly, both Asian and non-Asian 

employees were retained in each RIF. Likewise, three weeks after Stites’ termination for 

low efficiency ratings, an Asian inspector was terminated for the identical reason. 

On January 27, 2009, Appellants filed suit accusing ARI of reverse race 

discrimination and retaliation. On January 10, 2011, the District Court granted ARI’s 

motion for summary judgment. This appeal followed. 

II.1

A. Discrimination

 

1 The District Court had jurisdiction over Appellants’ claims pursuant to 28 U.S.C. §§ 

1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary 

review over a grant of summary judgment and consider the facts in a light most favorable 

to Appellants. Jones v. United Parcel Serv., 214 F.3d 402, 405 (3d Cir. 2000).
4

Appellants claim that their terminations resulted from reverse race discrimination. 

In analyzing such claims, we employ the familiar burden shifting analysis set forth by the 

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Because the 

parties do not dispute that Appellants have established a prima facie case of 

discrimination or that ARI has articulated a nondiscriminatory reason for terminating 

them—namely, that it applied objective, performance-based efficiency ratings—our 

analysis turns solely on whether Appellants have overcome the “difficult burden” of 

proving pretext. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). We hold that they 

have not. 

To establish pretext, Appellants must “point to some evidence . . . from which a 

fact finder could reasonably either (1) disbelieve the employer’s articulated legitimate 

reasons; or (2) believe that an invidious discriminatory reason was more likely than not a 

motivating . . . cause of the employer’s action.” Iadimarco v. Runyon, 190 F.3d 151, 165-

66 (3d Cir. 1999). Here, Appellants admit that they do not—and cannot—dispute the 

accuracy of ARI’s employee efficiency scores. Nor do they dispute that ARI laid off only 

those employees with the lowest efficiency scores or that these layoffs affected both 

Asian and non-Asian employees. And finally, although Appellants allege that Asian 

employees were given easier work, thereby “making it impossible for non-Asians to score 

as well as Asians,” they admit that several non-Asian inspectors maintained efficiency 

scores better than many—if not most—of the Asian inspectors. We therefore hold that 
5

Appellants have not shown such “contradictions in the employer’s proffered legitimate 

reasons for its action that a reasonable factfinder could rationally find them unworthy of 

credence.” Id. at 166 (citation omitted). Accordingly, summary judgment was appropriate.

B. Retaliation

Appellants also allege that ARI retaliated against them for complaining about the 

alleged preferential treatment of Asian workers. To prevail on a retaliation claim, a 

plaintiff must prove that “(1) she engaged in protected activity, (2) the employer took a 

materially adverse action against her, and (3) there was a causal connection between the 

protected activity and the employer’s action.” LeBoon v. Lancaster Jewish Cmty. Ctr. 

Ass’n, 503 F.3d 217, 231 (3d Cir. 2007). Here, the only evidence presented by Appellants 

to show a “causal connection” is the claimed temporal proximity between their 

complaints and their terminations. Although temporal proximity alone may be sufficient 

to create an inference of causality in some cases, it must be “unusually suggestive” to do 

so. Id. at 232. The record here, however, shows that Appellants complained numerous 

times over the course of several years of employment at ARI. Thus, far from being 

“unusually suggestive,” any proximity between Appellants’ final complaints and their 

terminations is merely coincidental. Consequently, summary judgment for ARI again was 

appropriate.

III.

For the foregoing reasons, we will affirm the judgment of the District Court. 
1

HARDIMAN, Circuit Judge, concurring in part and dissenting in part,

I agree with my colleagues that Appellants’ retaliation claims fail at summary 

judgment. I disagree, however, that Appellants’ discrimination claims fail for want of 

pretext under Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

Before they were laid off, Appellants complained to management that Asian 

unloaders favored Asian inspectors in the distribution of work. Supervisor Arlene 

Yorgey validated these complaints, stating: “yes, I do know that . . . you’re not getting 

the work because it’s going down . . . to the . . . Asian girls.” Under our precedents, an 

employer’s reliance on objective criteria tainted by discrimination or inequality evidences 

pretext. See, e.g., Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319–21 (3d 

Cir. 2000); Bray v. Marriott Hotels, 110 F.3d 986, 994–95 (3d Cir. 1997). In addition,

ARI expressed racial bias1and hired employees immediately before and after the 2006 

and 2007 RIFs.

2

 Finally, the fact that some Caucasians survived ARI’s layoffs and some 

Asians did not is not dispositive, see, e.g., Goosby, 228 F.3d at 321; Iadimarco v. 

Runyon, 190 F.3d 151, 165 (3d Cir. 1999), particularly where, as here, ARI eliminated all 

but six or seven Caucasian processing employees in just two years.

For these reasons, I would give Appellants their day in court.

 

1 Appellants and former co-workers testified that two supervisors said Asians 

work better, work faster, complain less, and do not call in sick as often as Caucasians.

2 ARI hired three inspectors two months after the 2006 RIF, converted four 

temporary employees to full-time status just three days before the 2007 RIF, and hired 

processing employees in the months following the 2007 RIF.