2014 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2014/111NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 12

- 3647

____________ AMY DECAROLIS,

Appellant

v. PRESBYTERIAN MEDICAL CENTER OF THE UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM, D/B/ A Penn Presbyterian Medical Center

____________ On Appeal from the United States District Court for the Eastern District of Pennsylvania ( E.D. Pa. No. 2

- 11

- cv - 01422 ) D ist rict Judge: Hon orable Legrome D

. Davis Submitted Pursuant to Third Circuit LAR 34.1(a)

September 23 , 2013 Before: CHAGARES, VANASKIE, and SHWARTZ, Circuit Judges

.

(Filed : January 27, 2014 )

____________ OPINION

____________ CHAGARES, Circuit Judge

. Plaintiff Amy DeCarolis appeals the District Court’s grant of summary judgment in favor of the defendant, Presbyterian Medical Center of the University of Pennsylvania Health System (“Presbyterian”). DeCarolis worked as a nurse at Presbyterian until May 2009, when her employment was ter minated. She filed a complaint alleging that her2

termination o ccurred because of her race, in violation of Title VII and Pennsylvania state law. For the reasons that follow, we will affirm the judgment of the District Court.
I. Because we write for the parties, we recount only those facts essential to our dispo sition. DeCarolis began to work at Presbyterian as a nurse in August 2001. In September 2008, she submitted a letter of resignation that identified October 30, 2008, as her last day of work and indicated that she had accepted a position in the Pulmonary
P ractices D epartment at the University of Pennsylvania Health System. DeCarolis was then offered another nursing position in Presbyterian’s Urology Department. She accepted that position and turned down the Pulmonary job. A hiring freeze prevented DeCar olis from starting in the Urology Department. Though DeCarolis and her existing supervisors took some interim measures, the hiring freeze continued and the position in the Urology Department never materialized. After DeCarolis had been unemployed for
app roximately one month, she returned to the hospital to discuss a potential position in a new unit. While there, she ran into Myra Cain

- Houston, who suggested that she return to her former unit with Cain

- Houston as her supervisor. DeCarolis agreed and retu rned to work in that unit in early 2009 as a mobility pool nurse. The incident that triggered DeCarolis’s eventual termination from that position occurred in May 2009. While at work, DeCarolis opened an email from her father that contained statements c ritical of President Obama’s recent election. The email included a letter from a CFO who needed to lay off employees because “our taxes and government fees will increase [ i ] n a BIG way.” Appendix (“ App. ”) 464. The email continued:3 So , this is what I did . I strolled thru [sic] our parking lot and found 8 Obama bumper stickers on our employees’ cars and have decided that these Folks will be the first to be laid off. I can’t think of a more fair way to approach this problem. These folks wanted change; I gave it to them. App. 464

- 65 . Several of DeCarolis’s coworkers saw this email, including an individual named Romayne Hopkins. 1 Hopkins was offended by the email and reported to Cain

Houston, their supervisor, that DeCarolis had circulated a racially o ffensive email. DeCarolis then met with Cain

- Houston and later Kia Logan, a Human Resources Manager who investigated the incident. Portions of DeCarolis’s meeting with Logan generated her complaint. According to DeCarolis, Logan read the email and sugg ested that “President Obama gets picked on because of the things, no t the

— not the things that he’ s doing f or our country, but because he’ s black.” App. 194. Logan denies making such a comment. Logan later met with Hopkins, who again recounted her vers ion of events, as well as another employee who found the email inappropriate, and another who explained that DeCarolis did not endorse the things her father sent her. Logan, Cain

- Houston, and Wanda Wa t lington, who was Cain

- Houston’s supervisor, then met to determine the appropriate cour se of disciplinary action

. 2 They de cided to terminate DeCarolis because her circulation of the email was “inappropriate and unprofessional.” App. 432. Though the hospital had a progressive discipline policy, that policy did not apply to DeCarolis, who was a per diem employee at that time.

1 Additional details regarding the circulation of the email are disputed but im material.
2 Both parties agree that these individuals were present at the meeting. The relevant witnesses had differing recollections as to who else attended.4

DeCarolis brought the current action against Presbyterian in February 2011. A subsequent amended complaint sought relief under Title VII and the Pennsylvania Human Relations Act (“P HRA”) , 43 Pa. Cons. Stat. §§ 951

- 63 and alleged racial discrimination with respect to the termination of DeCarolis’s employment and breach of contract. Presbyterian moved for summary judgment and the District Court granted the motion. DeCarolis filed thi s timely appeal.
II. 3 We exercise plenary review over a district court’s grant of summary judgment and will apply the same standard as the District Court. Burton v. Teleflex Inc. , 707 F.3d 417, 425 (3d Cir. 2013 ). The District Court “ shall grant s ummary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law .” Fed. R. Civ. P. 56(a). A dispute or issue “ is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non

moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law .” Kaucher v. Cnty. of Bucks , 455 F.3d 418, 423 (3d Cir. 2006). We will view the record in the light most favorable to the non

- moving party. Id. We consider first DeCarolis’s claim of “ reverse ” racial discrimination. Under Title VII, it is unlawful “ to fail or refuse to hire or to discharge any individual, or

3 The District Court had jurisdiction over DeCarolis’s Title VII claim pursuant to 28 U. S.C. § 1331 and supplemental jurisdiction over DeCarolis’s state law claim pursuant to 28 U.S.C. § 1367. This Court has jurisdiction over DeCarolis’s appeal pursuant to 28 U.S.C. § 1291.5

otherwise to discrimina te against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individua l’ s race, color, religi on, sex, or national origin.” 42 U.S.C. § 2000e

- 2 (a) ; see also Desert Palace, Inc. v. Costa , 539 U. S. 90, 92

- 93 (2003). We will examine each theory that DeCarolis contends could support a Title VII claim of unlawful di scrimination based on race: a mixed

motive theory and a disparate treatment theory.
A. A Title VII plaintiff who asserts a mixed

- moti ve theory of employment discrimination, contends that “both legitimate and illegitimate reasons” motivated the employment decision. Id. at 213; see also 42 U.S.C. § 2000e

- 2(m) (“[A]n unlawful employment practice is established when the complaining party d emonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice .”). A plaintiff who proceeds on a mixed

- motive theory must “ present sufficient evide nce for a reasonable jury to conclude, by a prepo nderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practic e.” Makky v. Chertoff , 541 F.3d 205, 214 (3d Cir. 2008) (quotation marks omitt ed) . Once a defendant presents “sufficient ‘direct’ evidence of retaliatory animus . . . the burden of production
and risk of nonpersuasion shift to the defendant, which must show that, even if retaliation was a motivating factor in the adverse employment decision, it would have made the same employment decision in the absence of retaliatory animus.” Walden v. Georgia

Pacific Corp. , 126 F.3d 506, 512

- 13 (3d Cir. 1997).6

The evidence that a plaintiff must present “ must be such that it demonstrates that th e decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision .” Id. at 513 (quotation marks omitted); see also Anderson v. Wachovia Mortg. Corp. , 621 F.3d 261, 269 (3d Cir. 2010) (explaining that the direct evidence requirement creates a “high hurdle” for plaintiffs). Statements by individuals involved in the termination process may constitute direct evidence of discriminatory animus. See Fakete v. Aetna, Inc. , 308 F.3d 335, 338

- 39 (3d Cir. 2002).
In Fak ete , this Court held that “statements of a person involved in the decisionmaking process” could provide direct evidence of discrimination, if that evidence “leads not only to a ready logical inference of bias, but also to a rational presumption that the pe r son expressing bias acted on it when he made the challenged employment decision.” Id. (quotation marks omitted). We adjudicated a claim in Fakete brought under the ADEA, which uses the same framework, originally announced in Price Waterhous e v. Hopkins , 490 U.S. 228 (1989), as Title VII unlawful termination cases. In Fakete , the supervisor directly addressed the impermissible factor (age), commenting that he was “‘ lo oking for younger single people that will work unlimited hours .’” 308 F.3d at 336. The supervisor then clearly set forth the implications of that statement, explaining that, as a consequence, “ Fakete ‘ wouldn’ t be happy [at Aetna] in the future. ’” Id. at 339 (alteration in original). Here, DeCarolis, who is white, asserts that she has se t forth sufficient direct evidence of discrimination to survive sum mary judgment on a mixed

- motive theory. In support of that contention, DeCarolis directs the Court to Logan’s comment about7

President Obama. We agree with the District Court’s well

- reason ed conclusion that the comment does not constitute direct evidence of discrimination:

[T]he statement in question does not imply that DeCarolis is a less desirable employee because of her race. Rather, the comment expresses Logan’s viewpoint on criticism of Obama. It was a direct response to the language of the email and is most fairly characterized as a criticism of racism. At most, a reasonable jury may infer that Logan wrongly characterized all white people as judging Obama for the color of his skin a nd therefore may infer bias. However, the statement fails the second prong of the Fakete analysis because it does not lead to a rational presumption that this bias motivated the employment decision. DeC arolis undisputedly circulated an email that discuss ed Obama and racially offended at least one colleague. Logan made the statement in response to seeing the email, during a conversation in which DeCarolis admitted to circulating the email. Thus, at most, a reasonable jury could find that Logan acted agai nst DeCarolis because her actions suggested that she wrongly judged Obama on the basis of his skin color and/or was racially insensitive or racist

— not that Logan acted against DeCarolis because she was white. . . . [T]hough the statement mentions race, because it focuses on racism and was made in response to DeCarolis’s act of circulating the email, it does not demonstrate that discrimination against white people was more likely than not the motivating factor in the decision to terminate the plaintiff.
App. 12

- 13 (emphasis added). DeCarolis has thus failed to provide evidence that her supervisors “relied on [her] race” when deciding to terminate her. Anderson , 621 F.3d at 270

. The situation here is similar to Hanners v. Trent , 674 F.3d 683, 693

- 94 ( 7th Cir. 2012). In Hanners , the plaintiff sent an email that described types of stereotype, fictitious “Barbie dolls” that had various ethnic, economic, and racial characteristics. Certain8

individuals reported that they found aspects of the email to be o ffensive and the plaintiff was fired. The plaintiff relied upon conversations about the content of the email to support his claim that his termination was due to his race. The Hanners court noted that the defendants' discussions about the ethnic and raci al overtones of the email did not prove that his termination was due to his race rather than nature of his conduct ( sending the inappropriate email). Similarly, Presbyterian decisionmakers and other employees were upset by the content of the e

- mail DeCaro lis circulated, this discord led to her termination, and there is no evidence to suggest that the focus of their comments or actions was related to DeCarolis’s race as opposed to her conduct. We will therefore affirm the District Court’s grant of summary judgment to Presbyterian on this basis.
B. DeCarolis argues in the alternative that even if she did not present sufficient “direct evidence” of discrimination to establish a Ti tle VII claim on a mixed

- motive theory, she can nonetheless succeed on a disp arate treatment theory of discrimination. In the absence of direct evidence of discrimination or retaliation, a plaintiff may prove her claim according to the burden

- shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). 4 Under McDonnell Douglas , the plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination or retaliation. Id. at 802. If the plaintiff succeeds, the burden of production shifts to the

4 This burden

- shifting framework applies to cases of racial disc rimination regardless of the race of the plaintiff. Iadimarco v. Runyon , 190 F.3d 151, 160

- 61 (3d Cir. 1999).9

employer to articulate a legitima te, nondiscriminatory reason for its decision. Id. Once the employer meets its “relatively light burden,” the burden of production returns to the plaintiff, who must show by a preponderance of the evidence that the employer’ s proffered reason is pretextu al. Fuentes v. Perskie , 32 F.3d 759, 763 (3d Cir. 1994). Accordingly, once an employer has proffered a legitimate, nondiscriminatory reason, the plaintiff “generally must submit evidence which: ( 1) casts sufficient doubt upon each of the legitimate reas ons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or ( 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employme nt action.” Id. at 762. Because the ultimate issue is whether “discriminatory animus” motivated the employer, it is not enough to show that the employer made a “wrong or mistaken” decision. Id. at 765 (citations omitted). Rather, the plaintiff must unc over “weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions” in the employer’ s explanation that would allow a reasonable factfinder to believe that the employer did not truly act for the asserted reason. Id. In support of her cla im, DeCarolis relies on the deposition testimony of Hopkins, the employee that reported DeCarolis’s circulation of the email. Hopkins stated that, in her view, individuals who do not support President Obama do not support him because he is black. However , Hopkins’s views shed no light on the views of those individuals responsible for DeCarolis’s termination, who have given a reason for DeCarolis’s termination that does not suggest impermissible racial considerations. DeCarolis thus fails to show evidence of racial animus. Even assuming, as the District Court did, that10

DeCarolis could establish a prima facie case of discrimination, Presbyterian has articulated a legitimate non

- discriminatory reason for its actions: DeCarolis was terminated for circulatin g inappropriate material at work. DeCarolis has not pointed to evidence from which a reasonable factfinder could conclude that this reason w as fabricated or that discrimination was likely t he motivating factor of DeCarol is’s termination

. A ccordingly, bec ause we conclude that DeCarolis failed to demonstrate that Presbyterian’s legitimate non

- discriminatory reason for her termination was not a pretext for discrimination, we will affirm on this basis as well. C. DeCarolis also sought relief pursuant to th e PHRA

. Because the District Court rightly concluded that “ ‘ [c]laims under the PHRA are interpreted coextensively with Title VII claims, ’ ” App. 25 (quoting Atkinson v. Lafayette Coll. , 460 F.3d 447, 454 n.6 (3d Cir. 2006)), we will uphold the District Cou rt’ s grant of summary judgment on DeCarolis’s PHRA claim for the reasons set forth above

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