IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William R. Hoy, :

Appellant :

: No. 1005 C.D. 2015

v. :

: Argued: September 15, 2016

Borough of Cochranton :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE McCULLOUGH FILED: October 18, 2016

William Hoy (Hoy) appeals from the March 9, 2015 order of the Court 

of Common Pleas of Crawford County (trial court) granting summary judgment in 

favor of the Borough of Cochranton (Borough) on his claims of gender and age 

discrimination. We affirm. 

Facts/Procedural History

The background of this case, viewed in the light most favorable to Hoy 

as the non-moving party, may be summarized as follows. Hoy is a retired 

Pennsylvania State Trooper with twenty-five years of experience. At first, Hoy 

worked as a Patrol Trooper and was thereafter promoted to Corporal in 1993, the 

latest position of which he worked during the last fourteen years of his employment. 
2

On a temporary basis, Hoy also served as acting Sergeant when a Sergeant retired. 

Hoy’s work experience with the Pennsylvania State Police includes responding to 

incidents of a serious nature; supervising patrol officers; evaluating patrol troopers’ 

performance; and maintaining positive public relations with municipal police in the 

Meadville and surrounding area. (Reproduced Record (R.R.) at 204a-13a.)

The Borough’s then Police Chief, Michael Phillips, announced at a 

Borough Council meeting on May 14, 2012, that he would retire, effective July 6, 

2012. At this meeting, former Police Chief Phillips recommended that his 

subordinate, Sergeant Heather Beachy, be promoted to Chief of Police. The Borough 

Council declined this recommendation at that time, and approved a motion to 

advertise the vacancy, and an advertisement appeared in a local newspaper on May 

17, 2012. Hoy applied for the position via letter and resume dated May 14, 2012, and 

became MPOETC (Municipal Police Officers’ Education & Training Commission) 

certified after the position was advertised. Hoy, a male, was fifty-nine years old 

when he applied for the position of Police Chief. (R.R. at 224a-29a, 279a-81a.)

Beachy, a thirty-three-year-old female at the time of the application 

process, attended Mercyhurst Police Academy for six months, graduating on July 15, 

2005, and then worked as a part-time police officer for the Borough, sixteen hours per 

week, until she became a full-time officer and Sergeant on July 1, 2009. Beachy’s 

job duties as a police officer included street patrol, traffic stops, and handling various 

domestic disturbance calls. Since 2009, Beachy and former Police Chief Phillips 

were the only full-time officers working for the Borough. As Sergeant, Beachy 

supervised two to four other part-time officers and observed former Police Chief 

Phillips perform his particular job duties. Beachy also served temporarily as the 

acting Chief of Police when former Police Chief Phillips was out on medical leave. 
3

Once he decided that he was going to retire, former Police Chief Phillips trained 

Beachy with administrative tasks, budgeting, crime reports, and other matters 

associated with the role of Chief of Police. (R.R. at 268a-91a, 317a-18a; Trial court 

op. at 7.) 

On June 19, 2012, during an executive session, the Borough Council 

narrowed the list to four candidates. Of the four, only Beachy and Hoy were 

residents of the Borough, and the other two were eliminated from consideration on 

that basis. On July 2, 2012, the Borough Council held a meeting open to the public 

and a motion was made to promote Beachy to the position of Police Chief; the motion 

was passed by unanimous vote. During the selection process, the Borough Council 

did not conduct any interviews. The Borough Council subsequently sent a rejection 

letter dated (or misdated) June 27, 2012 to all the unsuccessful applicants, which, 

including Hoy, consisted of twenty-six males. (R.R. at 382a-97a; Trial court op. at 1-

2.) 

On September 4, 2013, Hoy filed the instant suit against the Borough, 

alleging gender and age discrimination in the hiring of Beachy as Police Chief, in 

violation of the Pennsylvania Human Relations Act (PHRA).1

Thereafter, the parties conducted discovery, gathering documentary 

evidence and memorializing testimonial statements. William Shorts, President of the 

Borough Council, testified that he was aware of Hoy’s credentials, but was adverse to 

hiring Hoy because he did not like Hoy’s demeanor and felt that Hoy was not friendly 

or had any budgeting experience. Other Council members stated that they were 

generally familiar with Hoy because he resided in the Borough since 1996, had been 

 

1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963. 
4

a football coach at the local high school for at least thirteen years, attended Council 

meetings, and visited the Borough’s office. They further offered uncontradicted 

testimony that the decision to hire Beachy was not made until the July 2, 2012 

meeting and that the rejection letters reflecting a date of June 27, 2012, contained a 

typographic error. (R.R. at 135a-36a, 214a, 244a, 289a-92a.)

Bart Waite, the Mayor of the Borough, stated that he and the Borough’s 

Council decided not to interview Hoy because they did not think he was the best 

person for the position. Waite stated that he never told a news reporter that it would 

be beneficial to the community to have a female as the Chief of Police, but noted that 

the article stated that Beachy was the first female to assume that position within 

Crawford County. According to Waite, he was not aware that Beachy was the first 

female Chief of Police in the county until he read the article. Waite added that he did 

not think Hoy would be good at orchestrating community relations based upon his 

knowledge of complaints involving Hoy in his role as the high school football coach. 

(R.R. at 304a-11a, 393a; see Trial court op. at 5 n.4.)

The Borough’s witnesses also explained that the Borough received 

several unsolicited recommendations from residents of the Borough in favor of hiring 

Beachy, while Hoy did not have any. (R.R. at 92a, 128a, 131a.) Ultimately, the 

Borough Council stated that it voted to hire Beachy for nine reasons; specifically, 

because she: (1) performed admirably in her role as Sergeant; (2) was active in the 

community with regard to school and neighborhood watch programs; (3) had a 

positive attitude; (4) received several unsolicited recommendations from Borough 

citizens; (5) had experience handling police business in a small borough, particularly 

enforcing the Borough’s local ordinances; (6) had experience handling the Borough’s 

Police Department’s budget; (7) was known to be dependable and exceeded the 
5

expectations of the Borough Council; (8) was mentored by former Chief of Police 

Phillips, who recommended that she replace him upon his retirement; and (9) had 

successfully filled in as the acting Chief of Police when former Chief of Police 

Phillips was out on medical leave. (R.R. at 112a, 152a-53a; Trial court op. at 7.) 

In addition, the Borough submitted a document detailing the general 

statement of duties, typical examples of work, and desirable qualifications for the 

Chief of Police position. In his deposition, Hoy testified that he met all of the 

requirements for the position as outlined in this document. However, Hoy also 

testified that he never prepared a budget for a police department; did not have 

experience working with a mayor and/or council of a small borough; did not 

specifically deal with MPOETC regulations while working for the Pennsylvania State 

Police; and never had to patrol or visit the Borough for police-related business. 

Nevertheless, Hoy proffered testimony from Borough residents who stated, in 

general, that Hoy enjoys a good reputation in the community and expressed their 

belief that he was more qualified for the position of Chief of Police than Beachy. 

(R.R. at 94a-97a, 174a-75a, 234a-35a, 255a, 366a-69a.) 

At the close of discovery, on August 7, 2014, the Borough filed a motion 

for summary judgment, contending that Hoy failed to adduce sufficient evidence to 

make out a case for gender and/or age discrimination. By memorandum and order 

dated March 9, 2015, the trial court granted the Borough’s motion.

In its memorandum, the trial court first concluded that under the burdenshifting paradigm for employment discrimination cases, Hoy failed to carry his initial 

burden of establishing a prima facie case. In reaching this conclusion, the trial court 

determined that, when compared, Hoy and Beachy were not “similarly situated 

persons.” (Trial court op. at 4.) The trial court determined that, unlike Hoy, Beachy 
6

was an internal candidate that was already employed by the Borough and previously 

served as its acting Chief of Police. Id. at 3-6. 

Next, the trial court concluded that even if Hoy established a prima facie 

case of discrimination, the Borough offered nine legitimate, nondiscriminatory 

reasons for selecting Beachy over Hoy. In doing so, the trial court stated:

Promoting from within a department rather than hiring from 

outside is certainly lawful. The [Borough] Council’s 

decision to advertise the position and plumb the universe of 

qualified candidates, rather than simply adopting [former] 

Chief Phillip’s recommendation, should not open the 

Borough to charges of discrimination by any rejected 

applicant whose gender, age, race, etc., differed from 

Beachy’s.

* * *

The only hiring reason which Hoy maintains lacks credulity 

is Beachy having been already employed by the Borough 

and having acted during Chief Phillip’s leave of absence as 

police chief, which he contends is “highly inconsistent” 

with advertising the position. On the contrary, the 

[Borough] may have advertised for the sake of appearances, 

thereby hiding its lawful predisposition to promote Sergeant 

Beachy . . . . [Hoy] challenges each other reason with only 

his qualifications for the job, from which, he asserts, 

discriminatory motivation can be inferred. Equal or even 

superior qualifications do not suffice as evidence of pretext 

. . . . Not interviewing applicants to determine their 

qualifications may have been imprudent or ill-advised, but 

is not evidence of an intent to discriminate against Hoy on 

the basis of his age or gender. 

(Trial court op. at 6-7.)
7

Hoy filed a notice of appeal,2and the trial court ordered him to file a 

Pa.R.A.P. 1925(b) statement. After Hoy filed his statement, the trial court relied 

upon its memorandum and order dated March 9, 2015, to satisfy its obligations under 

Pa.R.A.P. 1925(a) and justify its grant of summary judgment in favor of the Borough. 

Discussion

Employment Discrimination Law

Here, Hoy asserted claims for gender and age discrimination under the 

PHRA. Importantly, claims brought under the PHRA are analyzed under the same 

standards as their federal counterparts and, therefore, Pennsylvania courts use federal 

interpretations of the federal anti-discrimination statutes to guide and inform our 

interpretations of the PHRA. Kroptavich v. Pennsylvania Power and Light Company, 

795 A.2d 1048, 1055 (Pa. Super. 2002); see Sarullo v. United States Postal Service, 

352 F.3d 789, 797-98 (3d Cir. 2003). In failure-to-hire employment discrimination 

cases on the basis of sex or age, Pennsylvania courts employ a three-part burden 

shifting analysis developed by the United States Supreme Court. Spanish Council of 

York, Inc. v. Pennsylvania Human Relations Commission, 879 A.2d 391, 397 (Pa. 

Cmwlth. 2005). 

Under this analytical model, a complainant is first required to establish a 

prima facie case of discrimination. The Pennsylvania Supreme Court in General 

Electric Corp. v. Pennsylvania Human Relations Commission, 365 A.2d 649 (Pa. 

1976), adopted the United States Supreme Court’s analysis in McDonnell-Douglas 

Corporation v. Green, 411 U.S. 792 (1973), for establishing a prima facie case, 

 

2 Hoy’s notice of appeal was filed with the Superior Court, which, by per curiam order dated 

April 13, 2015, transferred the appeal to this Court. 
8

which requires a complainant to demonstrate the following: (1) the complainant 

belongs to a protected class; (2) he applied for a job for which the employer was 

seeking applicants; (3) despite his qualifications, he was not hired; and (4) after the 

rejection, the position remained open and the employer continued to seek applicants 

from persons of complainant’s qualifications. McDonnell-Douglas, 411 U.S. at 802; 

General Electric Corp., 365 A.2d at 655-56. Notably, this prima facie test is 

adaptable to accommodate differences in the nature of the discrimination alleged. 

Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human Relations 

Commission, 532 A.2d 315, 317 (Pa. 1987). “The form it takes, however, must be 

appropriate to its function, which is to eliminate[] the most common 

nondiscriminatory reasons for the employer’s action.” Id. at 318 (citation omitted). 

Ultimately, the burden on the complainant of presenting a prima facie case is 

“minimal.” Kroptavich, 795 A.2d at 1055. 

If the complainant establishes a prima facie case, a presumption of 

discrimination arises, and the burden of production shifts to the employer to articulate 

a legitimate, nondiscriminatory reason for the challenged employment decision. 

Spanish Council of York, 879 A.2d at 397. However, 

[t]he employer’s burden in this second part is one of 

production, not persuasion, and thus involves no credibility 

assessment. If the employer articulates a legitimate 

business explanation, then the presumption of 

discriminatory intent created by the employee’s [prima 

facie] case is rebutted and the presumption simply drops out 

of the picture.

Kroptavich, 795 A.2d at 1055 (internal citations and quotations omitted). 

Assuming the employer satisfies its burden of production at the second 

stage, the third and final part of the analytical framework gives the complainant the 

opportunity to show that the legitimate reasons proffered by the employer were 
9

pretexts for what, in reality, was a discriminatory motivation. Id. If this complainant 

satisfies this burden, the complainant will survive summary judgment and, at trial, 

must convince the factfinder that not only was the employer’s proffered reason false, 

but that the real reason was impermissible discrimination. Willis v. UPMC 

Children’s Hospital of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015); see Kroptavich, 

795 A.2d at 1055. 

 

Stage One: Prima Facie Case

On appeal,3 Hoy contends that the trial court committed legal error in 

determining that he failed to state a prima facie case of discrimination on the basis 

that he and Beachy were not similarly situated. (See Trial court op. at 3-6.) 

According to Hoy, the fourth element of a prima facie case of age or sex employment 

discrimination can be satisfied by simply showing that he was not hired under 

circumstances that raise an inference of discriminatory action.

In response, the Borough asserts that the trial court properly held that 

Hoy had failed to make out a prima facie case because he was unable to satisfy the 

fourth element of the prima facie test: that is, he is not similarly situated to Beachy 

because Beachy was an internal candidate and Hoy was not.

 

3

“Our standard of review of the grant of summary judgment is de novo and our scope of 

review is plenary.” Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). Summary judgment is 

appropriate only in those cases where the record clearly demonstrates that there is no genuine issue 

of material fact and that the moving party is entitled to judgment as a matter of law. Atcovitz v. 

Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-22 (Pa. 2002) (internal citations omitted). In 

assessing a grant of summary judgment, an appellate court must view the record in the light most 

favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of 

material fact against the moving party. Id. 
10

In a failure-to-hire case on the basis of sex, the United States Court of 

Appeals for the Third Circuit, as well as other circuits, have concluded that the fourth 

element of a prima facie case does not impose a similarly situated requirement or the 

introduction of what is commonly referred to as comparator evidence. Sarullo, 352 

F.3d at 798 n.7 (“The defendants suggest that the fourth element requires a showing 

that ‘other similarly situated employees outside [the complainant’s] protected class 

were more favorably treated under similar circumstances.’ . . . [T]hat is not the 

current law in this or the majority of the circuits. . . . We require only that the plaintiff 

show that the employer continued to seek out individuals with similar qualifications 

after refusing to rehire the plaintiff under circumstances that raise an inference of 

unlawful discrimination.”); see, e.g., Kendrick v. Penske Transportation Services, 

Inc., 220 F.3d 1220, 1229 (10th Cir. 2000) (“[C]omparison to a person outside of the 

protected class in the fourth prong of the prima facie case is unnecessary to create an 

inference of discriminatory discharge.”).

4

 Instead, proof that a person outside of the 

protected class was similarly situated, possessing nearly identical characteristics or 

qualifications, although capable of contributing to the development of a prima facie 

case, is most appropriately considered after the employer proffers a 

nondiscriminatory reason for its action. See Marzano v. Computer Science Corp., 

Inc., 91 F.3d 497, 510-11 (3d Cir. 1996) (“All employees can be characterized as 

unique in some ways and as sharing common ground with ‘similarly situated 

employees’ in some other ways, depending on the attributes on which one focuses, 

 

4

In the context where the employer takes disciplinary action against an employee, some 

courts require that the complainant establish, as part of the prima facie burden, that the employer 

treated similarly situated employees outside of the class more favorably. See Kampmier v. Emeritus 

Corp., 472 F.3d 930, 939 (7th Cir. 2007). Because this is a failure-to-hire case, and not a situation 

when an existing employee is reprimanded or discharged, we need not consider whether it is 

absolutely necessary for a complainant to adduce such evidence in the latter types of cases.
11

and the degree of specificity with which one considers that employee’s qualifications, 

skills, tasks and level of performance . . . arguments as to the employee’s uniqueness 

should be considered in conjunction with, and as part of, the employer’s rebuttal —

not at the prima facie stage.”); Conward v. Cambridge School Committee, 171 F.3d 

12, 19-20 (1st Cir. 1999) (“[T]he time to consider comparative evidence in a 

disparate treatment case is at the third step of the burden-shifting ritual, when the 

need arises to test the pretextuality vel non of the employer’s articulated reason for 

having acted adversely to the plaintiff’s interests.”). 

In an age discrimination case, the United States Court of Appeals for the 

Third Circuit has held that the fourth element of a prima facie case is satisfied where

the complainant can point “to a sufficient age difference between himself and his 

replacement such that a fact-finder can reasonably conclude that the employment 

decision was made on the basis of age.” Sempier v. Johnson & Higgins, 45 F.3d 724, 

729 (3d Cir. 1995). The court in Sempier further explained: “Nor is there any 

particular age difference that must be shown. Different courts have held, for instance, 

that a five year difference can be sufficient, but that a one year difference cannot.” 

Id. at 729 (citations omitted). Applying these principles, the court concluded that a 

fourteen year difference in age “is clearly sufficient to satisfy the fourth prong of a 

prima facie case by raising an inference of age discrimination.” Id. at 730; see 

Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir. 1985) (holding that a 

“plaintiff may establish the fourth element of the . . . test for a prima facie case by 

showing that s/he was replaced by a person sufficiently younger to permit an 

inference of age discrimination” and concluding that the plaintiff’s replacement by an 

employee more than twenty years younger was sufficient to satisfy this test). Apart 
12

from showing age differential, the fourth element of a prima facie case does not 

require that the complainant and the hired employee be similarly situated. 

Therefore, based upon this case law, we conclude that the trial court 

erred as a matter of law in requiring Hoy to demonstrate that he and Beachy were 

similarly situated – in the sense that both were internal candidates from within the 

Borough’s police force – as a necessary predicate in order to make out a prima facie 

case. 

Hoy also argues that, irrespective of whether he was required to establish 

that he and Beachy were similarly situated, he met his burden at the prima facie 

stage. The United States Supreme Court has cautioned that the prima facie

requirement for making out a discrimination claim “is not onerous” and poses “a 

burden easily met.” Texas Department of Community Affairs v. Burdine, 450 U.S. 

248, 253 (1981); see Marzano, 91 F.3d at 508 (describing the burden of presenting a 

prima facie case as “relatively simple” and “easily made out”) (citations omitted). 

For purposes of this appeal, we assume, without expressly deciding, that Hoy met the 

initial burden of demonstrating a prima facie case. The record establishes that Hoy, 

at first blush, was objectively qualified for the position of Chief of Police and the 

Borough decided to a hire a substantially younger (approximately twenty-six years 

younger) female instead. To us, these facts appear to be enough to sustain the burden 

of proving a prima facie case. See, e.g., Equal Employment Opportunity Commission 

v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1193-94 (10th Cir. 2000); Evans 

v. Technologies Applications, 80 F.3d 954, 959-60 (4th Cir. 1996); see also Sempier, 

45 F.3d at 729-30. 

 Regardless of the trial court’s legal error in requiring a showing that the 

complainant and hired employee were similarly situated at the prima facie stage, the 
13

use of comparator evidence and the concept of similarly situated employees often 

converge at both the prima facie and pretextual stages. See Coleman v. Donahoe, 

667 F.3d 835, 846 (7th Cir. 2012). Consequently, the trial court’s legal error does not 

automatically dictate reversal; rather, in order for a trial court’s erroneous 

determination to be reversible, it must be harmful or prejudicial to the complaining 

party. Garner v. Pennsylvania Human Relations Commission, 16 A.3d 1189, 1200 

(Pa. Cmwlth. 2011). 

Stages 2 and 3: Legitimate, Nondiscriminatory Reason and Evidence of Pretext

In this case, the parties do not dispute that the Borough satisfied its 

rebuttal burden of proffering legitimate, nondiscriminatory reasons for not hiring 

Hoy. (Hoy’s brief at 30; the Borough’s brief at 32.) As a result, the burden shifted 

back to Hoy to demonstrate that the Borough’s reasons were a pretext for a 

discriminatory motive. Here, the trial court held, in the alternative, that even if Hoy 

established a prima facie case, he did not adduce sufficient evidence of pretext. 

(Trial court op. at 6-7.) If the trial court is correct, then its legal error described 

above is a harmless technicality and will not serve as a ground for reversal. See

Henley v. Zoning Hearing Board of West Fallowfield Township, 625 A.2d 132, 134 

n.4 (Pa. Cmwlth. 1993) (“Even if this Court agrees that [the complaining party] met 

this initial burden, because we hold that the five other requirements were not met, 

such error is harmless.”). The defining issue, therefore, becomes whether Hoy 

adduced sufficient evidence of pretext to withstand summary judgment. 

In this regard, Hoy asserts that the Borough’s reasons were pretextual in 

a collage of arguments, first pointing out that all of the twenty-six applicants, 

including himself, were male, and that the only female in the mix, Beachy, was hired. 
14

He then attempts to attack the Borough’s reasons by comparing his experience and 

qualifications with that of Beachy’s, contending that he worked for twenty-five years 

with the Pennsylvania State Police and supervised nine to ten officers, while 

Beachy’s background “pales in comparison.” (Hoy’s brief at 33.) 

In a similar vein, Hoy posits that he: “has as much, if not more, 

community involvement” than Beachy; never was interviewed and, therefore, did not 

have the chance to prove that he has a “positive attitude” like Beachy; is “fully 

capable of following a budget;” “is dependable” and submitted letters of 

recommendation from his superior officers; and adduced evidence “that the 

reputation of the police department with the community declined after Beachy’s 

appointment.” Id. at 33-41. Continuing onward, Hoy asserts that the Borough’s 

justifications for hiring an internal applicant are inconsistent with the fact that the 

Borough advertised for the position of Chief of Police. For these reasons, Hoy claims 

that genuine issues of material fact exist as to whether the Borough’s reasons for not 

hiring him were a pretext for age and/or gender discrimination.

Conversely, the Borough argues that Hoy’s proposed evidence is 

woefully inadequate to prove pretext. The Borough submits that, unlike Beachy, Hoy 

had never worked for the Borough; did not receive recommendations from the 

Borough’s citizens; did not have experience handling police business in a small town; 

never served as acting Chief of Police of the Borough; and did not receive an 

endorsement from the prior Chief of Police. 

In addition, the Borough asserts that even if Hoy possessed equal or 

somewhat superior qualifications, this does not prove pretext because an examination 

of qualifications is only relevant as to whether the Borough made the “right” hiring 

decision and does not tend to establish a discriminatory motive. According to the 
15

Borough, it is not within the discretion of the courts to re-write an employer’s hiring 

policy and courts are ill-equipped to assume the role of a hiring committee. 

Under the law, there are two ways in which a complainant can 

demonstrate that the employer’s legitimate, nondiscriminatory reasons were 

pretextual; that is, a mask for discrimination. Willis, 808 F.3d at 644.

The first way to show pretext is for the complainant to point to evidence 

that would allow a factfinder to disbelieve the employer’s reason for the adverse 

employment action. Id. at 644 (citation omitted). In order to raise sufficient 

disbelief, the complainant must point to “weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s proffered 

legitimate reasons [such] that a reasonable factfinder could rationally find them 

unworthy of credence and hence infer that the proffered nondiscriminatory reason did 

not actually motivate the employer’s action.” Kroptavich, 795 A.2d at 1059 

(citations omitted). With respect to the employer’s business reasons for not hiring a 

complainant, the question is not whether the employer made the best, or even a 

sound, business decision; instead, it is whether the real reason for the employment 

decision is discrimination. Keller v. ORIX Credit Alliance, 130 F.3d 1101, 1109 (3d 

Cir. 1997).

The second way a complainant can establish pretext is to point to 

evidence that would allow a factfinder to believe that an invidious discriminatory 

reason was “more likely than not a motivating or determinative cause” of the 

employer’s action. Willis, 808 F.3d at 645. As the Court in Willis explained, 

pointing to evidence demonstrating any of the following satisfies this second way to 

prove pretext: (1) the employer previously discriminated against the complainant; (2) 

the employer discriminated against others within the complainant’s protected class; or 
16

(3) the employer has treated similarly situated individuals or “comparators” more 

favorably. Id. at 645 (citations omitted). With respect to the third means by which to 

establish pretext, although “similarly situated” does not mean that the complainant 

and comparators must be “identically situated,” a complainant must demonstrate that 

his alleged comparators are “alike in all relevant respects.” Startzell v. City of 

Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008).

In conducting this pretext analysis, though, the United States Supreme 

Court has emphasized that “a reason cannot be proved to be a pretext for 

discrimination unless it is shown both that the reason was false, and that 

discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 

515 (1993) (emphasis in original, citation and internal quotation marks omitted).

At the outset, we note that Hoy does not contend that the Borough 

previously discriminated against him or has a history of discriminating against others 

who were males or over the age of forty. Significantly, the fact that the Borough 

preferred to hire an internal candidate who had received the recommendation of the 

previous Chief of Police is a legitimate and compelling reason not to hire Hoy, who 

was an external candidate with no such recommendation. See Perkins v. Doyon 

Universal Services, 151 P.3d 413, 417 (Alaska 2006) (“Preferring internal candidates 

is a legitimate and non-discriminatory reason for [the employer’s] action with respect 

to this position.”); Summers v. Harvard University, 397 F.Supp. 2d 166, 173 (D. 

Mass. 2005). These same facts also establish that Beachy, Hoy, and the remaining 

male applicants are not similarly situated persons (or sufficient comparators) for 

purposes of proving pretext. See also Royster v. Laurel Highlands School District, 

994 F.Supp. 2d 701, 714 (W.D. Pa. 2014) (concluding that the internal and external 
17

candidates were not similarly situated individuals for purposes of establishing 

pretext). 

Contrary to Hoy’s argument, the Borough’s preference toward an 

internal applicant is in no way undermined by the fact that it advertised the position 

to outside candidates. Indeed, the only sustainable inference that can flow from the 

Borough’s decision to advertise the position is that the Borough sought to find 

candidates that were potentially more suitable than Beachy but its pursuit proved to 

be unsuccessful. Therefore, Hoy has not produced sufficient evidence under the 

second Willis standard for proving pretext, and, unless he can establish demonstrable 

weaknesses, implausibilities, inconsistencies, or contradictions in the Borough’s 

proffered legitimate reasons (the first Willis standard for proving pretext), the trial 

court properly entered summary judgment in favor of the Borough. 

As evidenced from Hoy’s arguments reproduced above, the gravamen of 

his point can be summed up from an excerpt from his brief: “Hoy’s experience as a 

[twenty-five-year] state police veteran trumps [Beachy’s] small town police work 

experience.” (Hoy’s brief at 34.) Although Hoy asserts that he is “more qualified 

and had more experience in police work” than Beachy, he admits that “both were 

objectively qualified to perform the Chief of Police position.” (Id. at 27.) 

“To discredit the employer’s proffered reason, however, the 

[complainant] cannot simply show that the employer’s decision was wrong or 

mistaken, since the factual dispute at issue is whether discriminatory animus 

motivated the employer, not whether the employer is wise, shrewd, prudent, or 

competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). This proposition 

stems from the concept that courts “will not second guess business decisions made by 

employers, in the absence of some evidence of impermissible motives.” Lucas v. 
18

Dover Corp., 857 F.2d 1397, 1403-04 (10th Cir. 1988). In determining whether to 

hire a candidate, an employer can rely not only on objective facts, but also on 

subjective reasons and/or characteristics that it believes renders a particular candidate 

most suitable for the position. Chapman v. AI Transport, 229 F.3d 1012, 1033-34 

(11th Cir. 2000) (en banc). As the United States Supreme Court has stated: “[T]he 

employer has discretion to choose among equally qualified candidates, provided the 

decision is not based upon unlawful criteria. The fact that a court may think that the 

employer misjudged the qualifications of the applicants does not in itself expose him 

to . . . liability.” Burdine, 450 U.S. at 259. To be sure, a complainant “may not 

establish that an employer’s proffered reason is pre-textual merely by questioning the 

wisdom of the employer’s reasons, at least not where . . . the reason is one that might 

motivate a reasonable employer.” Combs v. Plantation Patterns, 106 F.3d 1519, 

1543 (11th Cir. 1997).

Although evidence showing that an employer hired a less qualified 

applicant over the complainant may be probative of whether the employer’s proffered 

reason for not promoting the plaintiff was pretextual, a complainant cannot establish 

pretext simply by showing that she is more qualified than the person hired. Cofield v. 

Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001). 

In Deines v. Texas Department of Protective & Regulatory Services, 164 

F.3d 277 (5th Cir. 1999), the United States Court of Appeals for the Fifth Circuit 

affirmed the district court’s instruction to the jury stating that “disparities in 

qualifications are not enough in and of themselves to demonstrate discriminatory 

intent unless those disparities are so apparent as virtually to jump off the page and 

slap you in the face.” Id. at 280. The court explained that the phrase:

“jump off the page and slap [you] in the face” . . . should be 

understood to mean that disparities in qualifications must be 
19

of such weight and significance that no reasonable person, 

in the exercise of impartial judgment, could have chosen the 

candidate selected over the plaintiff for the job in question. 

This evidentiary standard does not alter the plaintiff’s 

evidentiary burden to prove the fact of intentional 

discrimination by a preponderance of the evidence. Instead, 

the standard only describes the character of this particular 

type of evidence that will be probative of that ultimate fact.

Id. at 280-81. The court concluded that: “It is hardly a basis for the jury to find 

mendacity on the part of the employer when its judgments on qualifications are 

somewhere within the realm of reason. There is then, for the purposes of proving 

pretext, a difference in simply ‘second-guessing’ an employer’s judgment and finding 

proof of mendacity.” Id. at 282.

In Simms v. Oklahoma ex rel. Department of Mental Health and 

Substance Abuse Services, 165 F.3d 1321 (10th Cir. 1999), the United States Court of 

Appeals for the Tenth Circuit articulated a similar evidentiary burden for proving 

pretext. The court explained that: 

an employee’s own opinions about his . . . qualifications [do 

not] give rise to a material factual dispute . . . . When two 

candidates are equally qualified in that they both possess 

the objective qualifications for the position and neither is 

clearly better qualified, it is within the employer’s 

discretion to choose among them so long as the decision is 

not based on unlawful criteria.

Id. at 1329-30 (internal quotations and citations omitted). The court emphasized that 

its “role is to prevent unlawful hiring practices, not to act as a ‘super personnel 

department’ that second-guesses employers’ business judgments.” Id. at 1330. 

Here, in his brief, Hoy concedes that both he and Beachy were 

objectively qualified for the position. (Hoy’s brief at 27.) This Court has held that 

“[a] party’s statements in its brief . . . are treated as a judicial admission.” 

Bartholomew v. State Ethics Commission, 795 A.2d 1073, 1078 (Pa. Cmwlth. 2002) 
20

(citation omitted). Judicial admissions are formal concessions “which have the effect 

of withdrawing a fact from issue and dispensing it without the need for proof of the 

fact.” Id. At the end of the day, Hoy’s factual concession is fatal to his arguments on 

appeal and, under the law enunciated above, conclusively establish that he cannot 

prove pretext. 

Moreover, the evidence of record demonstrates that Beachy was 

uniquely qualified for the position and at least as qualified as Hoy. This is especially 

true considering that Beachy had worked for the Borough’s police department and 

temporarily served as Chief of Police, while, in comparison, Hoy had no experience 

working as an officer in a small borough setting. As a result, we do not believe “that 

a reasonable jury could conclude that [Hoy] was markedly more qualified” than 

Beachy to such an extreme and profound extent that it could legitimately infer that 

the Borough consciously selected a less-qualified and unworthy candidate “unless 

some other strong consideration, such as discrimination, enter[ed] into the picture.” 

Aka v. Washington Hospital Center, 156 F.3d 1284, 1294 & 1299-1300 (D.C. Cir.

1998) (en banc). Even if this Court disagreed with the Borough’s determination that 

Beachy was the superior candidate for the position of Chief of Police, we simply 

cannot conclude, based upon the current record, that the Borough’s proffered 

justifications for preferring Beachy over Hoy were so unworthy of credence as to 

support a finding of discriminatory intent.5, 6 The trial court, accordingly, reached the 

correct result in granting summary judgment in favor of the Borough.

 

5 Hoy further contends that the Borough “touted the fact that Beachy was the first female 

Chief of Police for the Borough according to an article that appeared in the Meadville newspaper.” 

(Hoy’s brief at 28.) To the contrary, there is nothing in the article to suggest that the Borough made 

any gender-biased comments in the article; indeed, Waite testified that he was not aware that 

Beachy was the first female Chief of Police in the county until he read the article. (R.R. at 309a.) 

Moreover, the only portion of the article cited by Hoy and contained in the reproduced record is the 

(Footnote continued on next page...)
21

Conclusion

For the above-stated reasons, we conclude that the trial court committed 

legal error in determining that Hoy, as a necessary predicate to establishing a prima 

facie case, failed to show that he and Beachy were similarly situated. However, this 

error was harmless and had no effect on the trial court’s ultimate disposition of this 

case. As more fully explained in our memorandum opinion, Hoy’s admission in his 

brief defeats his claims as a matter of law and his evidence is legally insufficient to 

establish that the Borough’s legitimate, nondiscriminatory reasons for hiring Beachy 

were a pretext for discrimination. Therefore, the trial court properly determined that 

the Borough was entitled to summary judgment as a matter of law. 

Accordingly, we affirm the trial court’s March 9, 2015 order. 

________________________________

PATRICIA A. McCULLOUGH, Judge

 

(continued...)

cover page of the newspaper, which contains the caption “Historic hire,” a picture of Beachy, and 

the following statement: “Beachy is new chief of the [Borough’s] Police Department and the first 

woman chief of police in Crawford County.” (R.R. at 393a.) Even if this statement is true and 

could somehow be attributed to the Borough, it does not support an inference of discriminatory 

intent. If it could, then any company would be subjected to discrimination liability on the sole basis 

that it hired its first black, female, Irish, etc. individual at a certain position. 

6 Hoy also references the fact that the Borough’s rejection letters were dated June 27, 2012, 

and although acknowledging that the uncontroverted evidence establishes that this was a 

typographical error, he seems to suggest that the Borough Council hired Beachy at the June 19, 

2012 executive session rather than at the July 2, 2012 Council meeting that was open to the public. 

Assuming such an inference can be drawn from the evidence, we fail to see how it has any 

probative force in proving pretext where the candidates were narrowed down to Beachy and Hoy at 

the June 19, 2012 executive session. (R.R. at 294a-95a.) Regardless of when Beachy was officially 

hired over Hoy, the decision was made and the issue in this case is whether the Borough engaged in 

impermissible discrimination when it chose to hire Beachy instead of Hoy. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

William R. Hoy, :

Appellant :

: No. 1005 C.D. 2015

v. :

:

Borough of Cochranton :

ORDER

AND NOW, this 18th day of October, 2016, the March 9, 2015 order 

of the Court of Common Pleas of Crawford County is hereby affirmed. 

________________________________

PATRICIA A. McCULLOUGH, Judge