DOWDELL v. COMMUNITY COLLEGE OF PHILADELPHIA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 6/9/17. 6/9/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
COMMUNITY COLLEGE OF
NITZA I. QUIÑONES ALEJANDRO, J.
June 9, 2017
Plaintiff Brarailty Dowdell (“Plaintiff”) filed an employment discrimination action based
on race and gender against Defendant Community College of Philadelphia (“Defendant”), his
current employer, pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42
U.S.C. § 1981 (“§ 1981”). Presently before this Court is Defendant’s motion for summary
judgment to which Plaintiff filed an opposition, Defendant filed a reply, and Plaintiff filed a surreply. [ECF 21, 22, 23, 26, respectively]. The issues presented in the motion for summary
judgment have been fully briefed by the parties and are ripe for disposition. For the reasons
stated herein, the motion for summary judgment is granted.
In his complaint, which was filed on December 24, 2015, Plaintiff alleges that Defendant
discriminated against him on the basis of his race and gender when Defendant failed to hire him
for a full-time faculty position in Defendant’s English Department. [ECF 1]. 1 Specifically,
Plaintiff asserts Title VII claims for: intersectional race and gender discrimination (Count One);
race discrimination (Count Three); and gender discrimination (Count Four); and a race and
gender discrimination claim under § 1981 (Count Two).
As is required at the summary judgment stage, this Court will consider all relevant facts
in this matter in the light most favorable to the non-moving party, i.e., Plaintiff. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The facts relevant to Plaintiff’s tenure with
Defendant are summarized as follows: 2
Plaintiff, an African American male, is currently employed
by Defendant on a part-time basis in the Learning Lab tutoring
students. (Pl.’s Br., [ECF 22-2], at 1) (citing Tr. of Pl.’s June 20,
2016 Deposition [ECF 22-3] at 6, 10-12, 19-20). Prior to joining
Defendant, Plaintiff received a Bachelor of Arts degree in English
from Fisk University and a Master’s of Science degree in Film
with a concentration in screenwriting from Boston University.
(Id.). Plaintiff’s thesis was a screenplay for Train Ride, which
became his first feature film. 3 (Id. at 1-2) In 1999, after Plaintiff
had graduated, Boston University changed its graduate Film degree
to a Master’s of Fine Arts degree; and, in 2015, it added a
Screenwriting sub-discipline, not previously offered. (Id. at 2).
In 2003, Plaintiff began his employment with Defendant as
an adjunct professor in the English Department. (Id.). Plaintiff
remained in this position for three or four years, before working as
a tutor in Defendant’s Learning Lab in 2006, tutoring students
Plaintiff styled his claims as “failure to hire” claims. However, because Plaintiff was already
employed by Defendant, these claims are more appropriately considered to be failure to promote or select
claims. Because Defendant does not take issue with the naming of Plaintiff’s claims, and because the
legal analysis is the same for failure to hire and failure to promote claims, this Court will, for the purposes
of this Memorandum Opinion, identify Plaintiff’s claims as failure to hire claims.
The facts are taken from the parties’ respective briefs. To the extent facts are disputed, such
disputes are noted and, if material, construed in Plaintiff’s favor. Facts asserted by a party, supported by
the record, which are uncontested, whether directly or by implication, by the other party, are taken to be
true. See Fed. R. Civ. P. 56(c).
See http://www.imdb.com/title/tt0161003 (last visited on June 9, 2017).
primarily in English courses. (Id.). In 2012 or 2013, Plaintiff
taught a Scriptwriting course, considered a course in the English
Department. (Id.). Plaintiff notes that Defendant has advertised
Plaintiff on Facebook, poster board, and Defendant’s February
2014 Report for Reaccreditation, and has also recognized him as
“Accomplished Faculty.” (Id. at 2-3).
In 2005, Plaintiff applied for a full-time faculty position in
the English Department. (Id. at 3). 4 Plaintiff interviewed with Dr.
Judith Gay, Vice President of Academic Affairs, and Dr. Sharon
Thompson, Dean of Liberal Arts and Associate Vice President of
Academic Affairs. (Id.). Dr. Gay is an African American woman,
and Dr. Thompson is a Caucasian woman. (Id.). At the time, Dr.
John Howe was the English Department Chair and Doug Swauger
was the Hiring Committee Chair. (Id.). Of the 207 applicants for
the full-time position, forty were interviewed, and of those
interviewed, eighteen were recommended to the English
Department Chair, and eight were hired, none of whom were
African American men. (Id.). No reason was given for Plaintiff’s
In December 2014, Defendant posted a full-time faculty
position for an English Generalist professor for the Fall 2015
semester in Defendant’s English Department. (Def.’s Br. at 2;
[ECF 21-2]). The posting indicated that a “Master’s or Ph.D.
degree in English, Composition, or closely-related field [is]
required. The MFA degree will also be considered.” [ECF 21-2 at
2]. For an English Generalist position, “closely-related fields” are
involve advanced study in language, literature,
developmental English or reading. Closely related
fields are: Rhetoric, Composition, Reading,
American Studies, Literature, Humanities, Classics,
Communications, the M.F.A in Creative Writing
and certain other M.F.A and master’s degrees
depending on inclusion of literary study and
whether the applicant has a credible undergraduate
degree in English.
The normal expectation for closely-related degrees
is that either the degree is earned in a humanities
department from a graduate school of Arts and
Plaintiff’s discrimination claims are not based on Defendant’s failure to hire him as an English
Generalist in 2005. This information is provided for context.
Sciences, with methods of study approximating
those used in the study of English, or that the degree
is earned in an education department, with the focus
on developmental English studies not administrative
duties. The closely-related field must include a
significant attention to the English language, its
structure, history or the works of art produced in
English. Degrees which lack these elements are
[ECF 22-13 at Ex. S at 2].
On December 14, 2014, Plaintiff applied for the full-time
English Generalist vacancy position announcement, (Pl.’s App.,
[ECF 21-6], at 1), despite not having a Master’s or Ph.D. degree in
English or Composition, an advanced degree in Rhetoric,
Composition, Reading, American Studies, Literature, Humanities,
Classics, or Communications, or a Master’s of Fine Arts. On his
application, Plaintiff identified his Master’s of Science in Film as a
“Master’s” in “Screenwriting/Film.” (Pl.’s App. at 3).
Defendant received 376 applications for the announced
English Generalist position. (Def.’s Br. at 4). The hiring process
consisted of the following: the Human Resource Department
performed an initial review of the materials received based on the
applicant’s self-reporting to determine who met the minimum
required qualifications. (Id. at 4-5). As to Plaintiff’s application,
the Human Resources Department concluded that he “[m]ay meet
minimum qualifications.” (Id. at 5; Pl.’s Br. at 5); [ECF 21-10 at
6]. The list of screened candidates was reviewed by the Director
of Diversity and Equity to ensure that minority applicants were
represented, and then forwarded to the Hiring Committee to select
candidates for a first round of interviews. (Def.’s Br. at 5). The
Hiring Committee reviewed the forwarded applications and
selected the candidates to interview. (Id.). Three members of the
Hiring Committee recommended Plaintiff for advancement, four
voted “maybe,” and one member noted that Plaintiff may have a
“degree issue.” [ECF 21-11 at 9; ECF 21-12 at 4].
The Hiring Committee recommended thirteen candidates
for a second interview before Girija Nagaswami, the English
Department Chair, and Joseph Kenyon, the Assistant Chair. [ECF
21-13 at 3]. Of those referred, six candidates were considered
“First Tier,” because they received unanimous support from the
Hiring Committee, and seven were considered “Second Tier,”
because they lacked unanimous support. (Def.’s Br. at 6); [ECF
21-11 at 9; ECF 21-13 at 3]. Of the thirteen candidates selected for
the second interview, Plaintiff was ranked twelfth. [ECF 21-13 at
After the second round of interviews was completed, Ms.
Nagaswami sent Drs. Gay and Thompson a memorandum
indicating that ten of the thirteen candidates, including Plaintiff, in
Ms. Nagaswami’s opinion, were qualified for the position. [ECF
21-14 at 2]. In an October 20, 2016 declaration submitted with
Defendant’s motion, Ms. Nagaswami indicates that the Spring of
2015 was her first experience interviewing candidates as Chair of
the English Department, and at the time she recommended Plaintiff
to proceed to the third round of interviews with Drs. Gay and
Thompson, she had not reviewed Plaintiff’s graduate level
coursework. [ECF 21-15 ¶ 4-5]. After discussing Plaintiff’s
academic transcript with Drs. Gay and Thompson and reviewing
the relevant descriptions of the courses Plaintiff had taken, Ms.
Nagaswami concluded that Plaintiff did not meet the minimum
qualifications, namely, he did not have either a Master’s degree in
English, a M.F.A degree, or a degree in a closely-related field. (Id.
Deans are encouraged to check candidate’s academic
transcripts to ensure that the candidates recommended for further
interviews meet the minimum requirements. [Tr. of Dr. Gay
August 12, 2016 Deposition, [ECF 21-4], at 16-17, 72]. Before
conducting Plaintiff’s third interview, Drs. Gay and Thompson
reviewed his academic transcript and discovered that Plaintiff did
not have a Master’s degree in Film and Screenwriting, as
represented in his application, but instead had a Master’s of
Science degree in Film. (Pl.’s App. at 4) [ECF 21-17 at 2]. 5 Based
on their findings, Plaintiff would only be qualified for the English
Generalist position if he had a degree in a closely-related field.
[ECF 21-2 at 2].
Prior to delving further into Plaintiff’s academic transcript
to determine if he met the minimum qualifications, Drs. Gay and
Thompson proceeded with his scheduled interview. [Tr. of Dr.
Thompson August 26, 2016 Deposition, [ECF 21-5], at 89:15-23].
To ensure fairness in the process, Drs. Gay and Thompson used a
set list of questions for all candidates during the third round of
Defendant asserts that Plaintiff’s application stated he had a “Master’s of Arts” degree in “Film
and Screenwriting.” (Def.’s Br. at 7). A review of Plaintiff’s application reveals that he claimed he has a
“Master’s” in “Screenwriting/Film.” (Pl.’s App. at 4).
interviews. (Id. at 95:16-24); [ECF 21-18 at 2]. Using these
questions, Drs. Gay and Thompson asked Plaintiff about his
grading system, theories on assessments in student learning, and
his familiarity with developments in the English discipline, all of
which Plaintiff struggled to describe and explain. [Tr. of Dr.
Thompson August 26, 2016 Deposition, [ECF 21-5], at 99:4100:6]. The questions did not include any inquiries on Plaintiff’s
Following Plaintiff’s interview, Drs. Gay and Thompson
both reviewed Plaintiff’s academic transcript to determine if he
had completed more than eighteen credits of graduate level work in
English, literature, developmental English, or reading. (Id. at 15:316); [Tr. of Dr. Gay August 12, 2016 Deposition, [ECF 21-4], at
54]. 6 Dr. Gay downloaded the current course descriptions at
Boston University to see if the course numbers and/or course
names that were similar to the courses Plaintiff took twenty years
earlier potentially involved the study of English, literature,
developmental English, or reading. [Tr. of Dr. Gay August 12,
2016 Deposition, [ECF 21-4], at 37-39]. Dr. Gay testified that she
“thought if [she] could find the course numbers and some evidence
that there was work that might be considered comparable to what
[the] English composition description – job description was, that
[Defendant] should count that and then [she] might have a basis for
moving [Plaintiff] forward.” (Id. at 31). Ultimately, Dr. Gay
concluded that Plaintiff did not have more than eighteen credits at
graduate level work in English, literature, developmental English,
or reading. (Id. at 39). Both Drs. Gay and Thompson concluded
that Plaintiff did not have a degree in a closely-related field, did
not meet the minimum requirements for the position, and could not
be recommended for the English Generalist position. (Id. at 5-6);
[Tr. of Dr. Thompson August 26, 2016 Deposition, [ECF 21-5], at
Of the applicants interviewed by Drs. Gay and Thompson,
only two were not recommended for hire: Plaintiff and Alexandra
Fields, a Caucasian woman, who also did not have a Master’s
Dr. Gay testified at her deposition that the requirement that the candidate have more than eighteen
credits was based on Defendant requiring eighteen graduate credits for part-time faculty. [Tr. of Dr. Gay
August 12, 2016 Deposition, [ECF 21-4], at 31]. She also testified that she interpreted the requirement
that a “closely-related field must include a significant attention to the English language” to, at a
minimum, mean more than eighteen graduate credits. (Id. at 31-33).
degree in English or in a closely-related field. [ECF 21-9 ¶ 12]. 7
The educational credentials and racial backgrounds of the seven
candidates recommended for hire are as follows: two were African
American women, one had a Ph.D. in English, and the other had a
M.F.A. in Creative Writing (a closely-related field); two were
Caucasian men, 8 one had a Master’s of Arts in English and the
other had a Master’s of Fine Arts in Nonfiction Writing; two were
Caucasian women, both with a Master’s of Arts in English and one
also with a Ph.D. in English; and one was a
Caucasian/Asian/Pacific Islander woman with a Ph.D. and
Master’s of Arts in English.
Federal Rule of Civil Procedure (“Rule”) 56 governs the summary judgment motion
practice. Fed. R. Civ. P. 56.
Specifically, this rule provides that summary judgment is
appropriate “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.” Id. A fact is “material” if proof of its
existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine”
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. Under Rule 56, the court must view the evidence in the light most
favorable to the non-moving party. Galena v. Leone, 638 F.3d 186, 196 (3d Cir. 2011).
Rule 56(c) provides that the movant bears the initial burden of informing the court of the
basis for the motion and identifying those portions of the record which the movant “believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). This burden can be met by showing that the nonmoving party has “fail[ed] to
Ms. Fields has a Bachelor of Arts in English and a Master’s of Education from Harvard. [ECF
21-9 ¶ 12].
Defendant identifies this candidate as a Caucasian man. (Def.’s Br. at 10). Plaintiff identifies
this candidate as: “Caucasian identifies as Male.” (Pl.’s Br. at 4).
make a showing sufficient to establish the existence of an element essential to that party’s case.”
Id. at 322.
After the moving party has met its initial burden, summary judgment is appropriate if the
nonmoving party fails to rebut the moving party’s claim by “citing to particular parts of materials
in the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other materials” that show a
genuine issue of material fact or by “showing that the materials cited do not establish the absence
or presence of a genuine dispute.” See Rule 56(c)(1)(A-B). The nonmoving party must “do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving
party may not rely on “bare assertions, conclusory allegations or suspicions,” Fireman’s Ins. Co.
of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the
Celotex, 477 U.S. at 324.
Rather, the nonmoving party must “go beyond the
pleadings” and either by affidavits, depositions, answers to interrogatories, or admissions on file,
“designate ‘specific facts showing that there is a genuine issue for trial.’” Id.
As stated, Plaintiff contends that Defendant unlawfully discriminated against him in
violation of Title VII and § 1981 when Defendant denied Plaintiff the English Generalist position
because of his race, gender, or the combination of the two. 9 Defendant moves for summary
In addition to his race and gender discrimination claims, Plaintiff raises a claim entitled “Failure
to Hire – Combined/Intersectional/Race and Gender Discrimination,” (Compl. at 9), in which he alleges
that he was discriminated against not solely because he is African American or solely because he is a
man, but because he is an African American man. (Id. ¶ 59-64, 75). While the Third Circuit Court of
Appeals has not yet addressed intersectional discrimination claims, in a case where the plaintiff alleged he
was discriminated against because he was a man of Italian ancestry, the Eastern District of Pennsylvania
judgment on each of Plaintiff’s claims on the grounds that Plaintiff has not and cannot establish:
(1) a prima facie case of discrimination based on race, gender, or a combination of two; and (2)
that Defendant’s articulated, legitimate and non-discriminatory reasons for not hiring Plaintiff for
the English Generalist position were a pretext for discrimination. These arguments will be
The elements of a Title VII employment discrimination claim are generally identical to
those for a § 1981 10 employment discrimination claim, and both are analyzed pursuant to the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). See Walker v. Centocor Ortho Biotech, Inc., 558 F. App’x 216, 218 (3d Cir. 2014);
Chandler v. Univ. of Pa., 927 F. Supp.2d 175, 179 (E.D. Pa. 2013) (noting that the legal standard
applicable to employment discrimination claims asserted under §1981 and claims brought under
Title VII are “equivalent”); Fitzgerald v. Nat’l R.R. Passenger Corp., 2016 WL 3854055, at *3
held that a “Title VII claim may be premised on alleged discrimination based on a combination of
impermissible factors.” Fucci v. Graduate Hosp., 969 F. Supp. 310, 316 n.9 (E.D. Pa. 1997) (internal
citations omitted). Other courts have likewise found intersectional claims to be cognizable under Title
VII. See Shazor v. Prof’l Transit Mgmt., Ltd., 744 F.3d 948, 958 (6th Cir. 2014) (“[B]oth
classifications—race and sex—are protected by Title VII. These characteristics do not exist in isolation.
African American women are subjected to unique stereotypes that neither African American men nor
white women must endure. And Title VII does not permit plaintiffs to fall between two stools when their
claim rests on multiple protected grounds”) (internal citations omitted); Jefferies v. Harris Cty. Cmty.
Action Ass’n, 615 F.2d 1025, 1032 (5th Cir. 1980) (finding a claim that someone was discriminated
against for being an African American woman was separately cognizable from claims of solely race or
gender discrimination, noting that the “use of the word ‘or’ [in Title VII] evidences Congress’ intent to
prohibit employment discrimination based on any or all of the listed characteristics.”); Lam v. Univ. of
Hawai’i, 40 F.3d 1551, 1562 (9th Cir. 1994) (“[W]hen a plaintiff is claiming race and sex bias, it is
necessary to determine whether the employer discriminates on the basis of that combination of factors,
not just whether it discriminates against people of the same race or of the same sex.”). Here, because this
Court concludes that Plaintiff has failed to establish a prima facie case of discrimination and/or that
Defendant’s reasons for not hiring Plaintiff were pretextual in nature, this Court need not determine
whether an intersectional race/gender discrimination claim is cognizable under Title VII.
In relevant part, § 1981 provides: “[a]ll persons within the jurisdiction of the United States shall
have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws and
proceedings for the security of person and property as is enjoyed by white citizens . . . .” 42 U.S.C. §
(E.D. Pa. July 13, 2016). Under the McDonnell Douglas framework, a plaintiff must first make a
prima facie case of discrimination by producing evidence to show that the plaintiff: (1) is a
member of a protected class; (2) is qualified for the job which he sought to attain; (3) suffered an
adverse employment action; and (4) that the action occurred under circumstances that could give
rise to an inference of discrimination. Walker, 558 F. App’x at 218. Defendant concedes that
Plaintiff satisfies the first and third elements on his race discrimination and intersectional
(Def.’s Br. at 14 n.5, 18 n.10).
Regarding Plaintiff’s gender
discrimination claim, because this claim is premised upon his being male, it is considered to be a
“reverse discrimination” claim. Andersen v. Mack Trucks, Inc., 118 F. Supp. 3d 723, 744 (E.D.
“In cases involving reverse discrimination, the Third Circuit has articulated a
modified burden shifting analysis that differs from the usual test for gender discrimination
enunciated by the Supreme Court in McDonnell Douglas.” Id. (citing Iadimarco v. Runyon, 190
F.3d 151 (3d Cir.1999)). “Under Iadimarco, the plaintiff must establish a prima facie case by
presenting sufficient evidence to allow a fact finder to conclude that the defendant treated some
people less favorably than others based on gender.” Id.
Once a plaintiff establishes a prima facie case of discrimination, the burden shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason” for the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. If the defendant satisfies this phase, the burden
shifts back to the plaintiff to prove that the legitimate reason(s) offered by the defendant are
merely a pretext for discrimination. Fuentes v. Perskie, 32 F.3d 759, 804-05 (3d Cir. 1994). To
make a showing of pretext, the plaintiff must provide 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 or determinative cause
of the employer’s action.” Id. at 764. To meet this burden, the plaintiff must “present evidence
contradicting the core facts put forth by the employer, as the legitimate reasons for its decision.”
Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). The plaintiff must “demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence.” Fuentes, 32 F.3d at 765. Fuentes further requires the plaintiff to present
evidence that suggests that the unlawful discrimination alleged was more likely than not a
motivating or determining factor in the defendant’s adverse employment actions. That is, the
plaintiff must do more than show that the defendant’s proffered reasons were wrong or mistaken;
the plaintiff must demonstrate that the defendant acted with discriminatory animus. Abramson v.
William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). The plaintiff can meet this
burden by pointing to evidence “that the employer has previously discriminated against [him],
that the employer has discriminated against other persons within the plaintiff’s protected class or
within another class, or that the employer has treated more favorably similarly situated persons
not within the protected class.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir. 1998). In
situations of similarly situated non-class members, a plaintiff must show with some specificity
that the comparators were more favorably treated. Id. at 646.
Plaintiff Fails to Make Prima Facie Case
Defendant argues that Plaintiff has failed to make a prima facie case of either race,
gender, or combined race/gender discrimination because he cannot establish that he met the
minimum qualifications for the English Generalist position. This Court agrees.
It is undisputed that the educational qualifications requirement for the English Generalist
position included a Master’s (or possibly Master’s of Fine Arts) degree or Ph.D., in either: (1)
English; (2) Composition; or (3) a closely-related field. [ECF 21-2 at 2]. It is also undisputed
that Plaintiff does not have a Master’s or Ph.D. degree in English or Composition. Thus, the
central dispute over Plaintiff’s qualifications is whether, when viewing the evidence in the light
most favorable to him, Plaintiff’s Master’s of Science in Film degree with a concentration in
screenwriting is a degree in a “closely-related field.” 11 A closely-related field “must include a
significant attention to the English language, its structure, history or the works of art produced in
English. Degrees which lack these elements are unacceptable.” 12 [ECF 22-13 at Ex. S at 2].
The definition of closely-related degrees does not provide a definition or context for the
phrase “significant attention.”
However, since 2005, Defendant has required part-time
Plaintiff appears to argue, inter alia, that he has a “degree in screenwriting” and that such a
degree constitutes a degree in a closely-related field. (Pl.’s Br. at 12). To support this argument, Plaintiff
notes that Dr. Gay agrees that a degree in screenwriting fits the closely-related field description. (Tr. of
Dr. Gay August 12, 2016 Deposition, [ECF 22-5], at 24:15-18). Plaintiff further argues that Defendant
has “recognized Plaintiff Dowdell as having that degree,” (Pl.’s Br. at 12), citing a September 2, 2003
letter from Dr. Howe to Dr. Gay that recommended Plaintiff to teach two English courses, noting that he
has a “M.S. from Boston University in Film/Screenwriting.” [ECF 22-13 at Ex. W at 2]. The fact that
Dr. Howe, in a single letter to Dr. Gay in 2003 identified Plaintiff’s Master’s degree as being one in
“Film/Screenwriting” does not change the undisputed fact that Plaintiff does not have a degree in
screenwriting. Plaintiff admits that he has a “Master’s of Science in Film with a concentration in
screenwriting.” (Pl.’s Br. at 1). It is this degree that must constitute a degree in a closely-related field in
order for Plaintiff to meet the stated qualifications of the English Generalist position.
Plaintiff also argues that his Film degree is closely-related because it is a Humanities degree, one
of the enumerated degrees listed as closely-related. (Pl.’s Br. at 13). Plaintiff cites to Wikipedia to
support his contention that a Film degree constitutes a closely-related Humanities degree. (Id.) (citing
https://en.wikipedia.org/wiki/Humanities). Setting aside the potential problems with relying on Wikipedia
to support a factual proposition, see Doe 1 v. Michigan Dep’t of Corr., 2014 WL 2207136, at *7 n.3 (E.D.
Mich. May 28, 2014) (collecting cases), Wikipedia references Film as a part of the Humanities academic
discipline in a list of the Performing Arts, which includes “acrobatics, busking, comedy, dance, film,
magic, music, opera, juggling, marching arts, such as brass bands, and theatre.”
https://en.wikipedia.org/wiki/Humanities. Thus, if Plaintiff’s argument that any degree in the Humanities
sufficed to satisfy the closely-related degree requirement is accepted, then, according to Wikipedia, a
Master’s degree in magic or juggling would also satisfy this requirement. No reasonable factfinder could
reach such a conclusion. Further, Plaintiff’s argument that because his Film degree is a Humanities
degree qualifies him for the English Generalist position ignores the additional explanation of closelyrelated degrees requiring “significant attention to the English language, its structure, history or the works
of art produced in English.”
professors to possess at least eighteen graduate level credits in their discipline. [Tr. of Dr. Gay
August 12, 2016 Deposition, [ECF 21-4], at 31-33]. With this criteria in mind, Drs. Gay and
Thompson reviewed Plaintiff’s academic transcript to determine his qualifications and whether
he had, at a minimum, more than eighteen credits of graduate level work in English, literature,
developmental English, or reading.
Deposition, [ECF 21-5], at 15:3-16].
(Id. at 54); [Tr. of Dr. Thompson August 26, 2016
Ultimately Drs. Gay and Thompson concluded that
Plaintiff was not qualified for the position since he did not have more than eighteen credits of
graduate level work in English, literature, developmental English, or reading, nor did he have a
degree in a closely-related field. [Tr. of Dr. Gay August 12, 2016 Deposition, [ECF 21-4], at 56, 39], [Tr. of Dr. Thompson August 26, 2016 Deposition, [ECF 21-5], at 8].
Plaintiff does not appear to take issue with Drs. Gay and Thompson’s use of a “more than
eighteen credits” threshold to determine whether he had a closely-related degree. 13 Instead,
Plaintiff argues that the review of his academic transcript to determine whether specific courses
qualified as English, literature, developmental English, or reading courses, is subjective and,
therefore, should not be considered during the prima facie case analysis but instead should be
considered during the pretextual part of the McDonnell Douglas analysis. [Pl.s’ Br. at 13-16].
Plaintiff, however, has failed to realize that it is his burden to show that he is qualified for the
position and/or to rebut Defendant’s evidence that he is not qualified. See Rule 56(c)(1)(A-B);
Fuentes, 32 F.3d at 764-65. Plaintiff has not cited “to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials” which would rebut
In light of the fact that part-time positions require at least eighteen graduate credits in the relevant
discipline, it appears that simply requiring more than eighteen, such as nineteen graduate credits, in order
to be qualified to assume a full-time position, is more than reasonable.
Defendant’s factual assertions and, therefore, show a genuine issue of material fact or otherwise
“establish the absence or presence of a genuine dispute.” See Rule 56(c)(1)(A-B). While Drs.
Gay and Thompson’s review of Plaintiff’s specific graduate courses may have been subjective,
to defeat the motion for summary judgment, Plaintiff has the burden to rebut their conclusion
regarding the lack of relevant graduate credits, and he has failed to do so. Instead, Plaintiff
merely states that he “was asked and identified during the deposition the graduate degree credits
with a focus in the English language.” [Pl.’s Br. at 9] (citing Tr. of Pl.’s June 20, 2016
Deposition, [ECF 22-3], at 33-35).
Setting aside the possible distinction between whether
courses that “focus” on the English language are the equivalent of courses that include
“significant attention to the English language, its structure, history or the works of art produced
in English,” Plaintiff does not identify which courses, or how many credits, in his opinion,
should have been considered and counted by Drs. Gay and Thompson. 14 In essence, Plaintiff
argues bare assertions and conclusory allegations to support his contention that he is qualified for
the English Generalist position because he has a closely-related degree. This is insufficient to
satisfy his summary judgment burden to rebut Defendant’s argument and supporting facts which
establish a lack of a degree in a closely related field. 15 As a result, Plaintiff cannot establish that
Notably, in his response, Plaintiff did not include pages 33-35 of his deposition, which prevents
this Court from determining if, during his deposition, he identified more than sufficient credits which
should have been counted. Defendant included page 33 of Plaintiff’s deposition transcript, but this single
page does not provide this Court with sufficient information to determine if Plaintiff identified the
requisite number of credits.
As noted supra, Plaintiff argues that because Drs. Gay and Thompson’s determination of which
courses should and should not count is subjective, their determination should not be considered during the
prima facie case stage and instead should be reserved for when the Court considers whether Defendant’s
articulated reasons were pretextual. [Pl.s’ Br. at 13-16]. Plaintiff is correct that, generally, “while
objective job qualifications should be considered in evaluating the plaintiff’s prima facie case, the
question of whether an employee possesses a subjective quality, such as leadership or management skill,
is better left to the later stage of the McDonnell Douglas analysis.” Weldon v. Kraft, Inc., 896 F.2d 793,
798 (3d Cir. 1990) (noting that “subjective evaluations are more susceptible of abuse and more likely to
a genuine dispute of material fact exists over whether he is qualified for the position under the
second prong to establish a prima facie case under the McDonnell Douglas framework. 16 As
such, Plaintiff’s discrimination allegations are unsupported.
While this Court need not address the remaining McDonnell Douglas factors, in the
interest of judicial economy, it will address the additional showing Plaintiff must establish. For
clarity of analysis and for this purpose only, this Court will assume that Plaintiff has established,
which he has not, that he is qualified for the English Generalist position.
As to the fourth prong to establish a prima facie case under the McDonnell Douglas
framework, Plaintiff asserts that the adverse employment action occurred under circumstances
that could give rise to an inference of discrimination, and/or that similarly situated persons who
are not members of Plaintiff’s protected class were treated more favorably. To establish an
inference of discrimination, a plaintiff must produce “evidence adequate to create an inference
that an employment decision was based on a[n] [illegal] discriminatory criterion.” Kier v. F.
Lackland & Sons, LLC, 72 F. Supp. 3d 597, 608 (E.D. Pa. 2014) (quoting Pivirotto v. Innovative
Sys., Inc., 191 F.3d 344, 355 (3d Cir. 1999)). “An inference of race-based discrimination cannot
arise simply from an employee’s subjective belief that his or her race somehow influenced the
challenged employment action.” Id. at 609. One method by which a plaintiff can establish an
inference of discrimination is by demonstrating that he was treated less favorably than a similarly
mask pretext.”) (internal quotations omitted). This argument, however, is a red herring, as Plaintiff has
failed to present factual support, or even to argue, that, in his own subjective opinion, he has more than
eighteen requisite graduate credits to support that he is qualified for the English Generalist position.
Plaintiff also asserts that the fact that he made it to the final stages of the hiring process in both
2005 and 2015 show that he was deemed qualified by Defendant. [Pl.’s Br. at 14-15]. That he was
“deemed qualified” enough to reach Drs. Gay and Thompson was based on his self-reporting of his
qualification and was not based on an independent review of whether he had a degree in a closely-related
field, a review that Drs. Gay and Thompson later performed. That he made it through the first two rounds
of interviews does not mean he was ultimately qualified for the English Generalist position.
situated employee outside of the protected class. Yan Yan v. Fox Chase Cancer Ctr., 2014 WL
4639400, at *8 (E.D. Pa. Sept. 18, 2014).
To support the existence of an inference of discrimination, Plaintiff relies on the fact that
Drs. Gay and Thompson are outside his protected group, to wit: Dr. Gay is an African American
woman, and, thus, outside Plaintiff’s gender, and Dr. Thompson is a Caucasian woman, outside
of Plaintiff’s gender and race. [Pl.s’ Br. at 16]. However, the mere fact that Drs. Gay and
Thompson are outside of Plaintiff’s race and/or gender class, does not, in itself, establish an
inference of discriminatory intent. See Iadimarco, 190 F.3d at 163 (“[T]he race of the selecting
officials is not a sufficient circumstance to establish a prima facie case of discrimination by
itself. Although the race and/or gender of the individual(s) responsible for a hiring decision is
certainly relevant, it is insufficient to establish a prima facie case of discrimination without
Plaintiff further relies on alleged remarks made and actions taken by Drs. Gay and
Thompson that Plaintiff contends suggest discriminatory intent.
[Pl.s’ Br. at 16-17].
Specifically, Plaintiff presents evidence that, in 2007, Dr. Gay, when asked by another African
American professor why she did not protect African American faculty, replied that she did not
feel the African American faculty backed her. [Pl.s’ Br. at 6] (citing Tr. of Ardencie HallKarambe April 20, 2016 Deposition [ECF 22-11 at Ex. P] at 92). Plaintiff also presents evidence
that, in 2001, Dr. Thompson allegedly smiled at a “racially insensitive joke” 17 told by Dr. Howe,
the then Chair of the English Department, after which she spoke with Professor Paul Wright, the
According to Mr. Wright, in 2001 around Dr. Martin Luther King Jr. Day, Dr. Howe told a story
about the day his elementary school teacher was preparing his school for racial integration and where Dr.
Howe faked a Southern accent and pretended to be the teacher and said “tomorrow children the little
negro children are coming to share the school with us.” [Tr. of Paul Wright April 15, 2016 Deposition
[ECF 22-9 at Ex. N] at 61].
only African American present for the joke, and asked him if he was “all right” but was insincere
about her inquiry. (Id. at 6-7) (citing Tr. of Paul Wright April 15, 2016 Deposition [ECF 22-9 at
Ex. N] at 61-63]. 18
While this Court does not condone racially charged jokes, Plaintiff’s argument that these
two incidents are sufficient to establish an inference of discrimination is misplaced. Even
assuming that these events occurred as Plaintiff describes them, 19 these events are stray or
remote remarks and/or actions, one of which occurred almost fifteen years and the other eight
years before the hiring decision involving Plaintiff and, further, were not made in the context of
any decision whether to recommend Plaintiff for the English Generalist position. “Stray remarks
by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given
great weight, particularly if they were made temporally remote from the date of decision.” Ezold
v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992). The fact of Dr.
Thompson smiling during an off color joke and/or Dr. Gay voicing an opinion that the African
American faculty does not support her, 20 events which occurred years before the hiring decision
at issue, do not, under any reasonable consideration, give rise to an inference of discriminatory
Plaintiff also alleges that Dr. Thompson was later involved in accusations against Mr. Wright
concerning an alleged $1,200 he wrongfully received from the English Department, and during this
investigation Dr. Thompson accused Defendant’s Affirmative Action/Diversity Director Simon Brown of
gender discrimination. It is unclear how these events translate into any suggestion of discriminatory
animus by Dr. Thompson.
Dr. Gay denies stating that she did not feel that that African American faculty backed her. [Tr. of
Dr. Gay August 12, 2016 Deposition, [ECF 23-1], at 176-77].
Plaintiff suggests that Dr. Gay, as an African American, had a duty to make sure that African
American men were hired. [Tr. of Pl.’s June 20, 2016 Deposition [ECF 21-1] at 70, 73]. No such legal
duty exists, and no discriminatory animus can be ascribed to Dr. Gay for her failure to comply with this
Plaintiff further cites to statistical evidence of the hiring practices of the English
Department in support of the alleged inference of discriminatory intent. Specifically, Plaintiff
asserts that as of 2015, the English Department had 124 members, five of which are African
American men. [Pl.s’ Br. at 8] (citing [ECF 22-13 at Ex. V]). Plaintiff further asserts that from
2006 to 2015, the English Department hired, under Drs. Gay and Thompson, fifty Caucasian
individuals (twenty-one men and twenty-nine women), eleven African American individuals
(one man and ten women), and two Hispanic individuals (one man and one woman). (Id.).
Plaintiff concludes that these statistics show a dearth of hiring of African American men and
establishes an inference of discriminatory intent.
Undisputedly, “[s]tatistical evidence of an employer’s pattern and practice with respect to
minority employment may be relevant” to showing discrimination. See Ezold, 983 F.2d at 542.
However, “raw numerical comparisons . . . not accompanied by any analysis of either the
qualified applicant pool or the flow of qualified candidates over a relevant time period,” is not
probative of discrimination.
Defendant rebuts Plaintiff’s discrimination inference and
provides context regarding Plaintiff’s statistical arguments, which Plaintiff does not refute in any
Specifically, Defendant contends that between 2006 and 2015, the English
Department received 3,138 applications for English Generalist positions, of which 58 or 1.82%
were from African American men. 21 [Def.’s Br. at 28] (citing [ECF 21-23 and 21-8]). Based on
Plaintiff’s numbers, the five African American men currently working as full-time faculty in the
English Department comprise 4.03% of the full-time faculty. Between 2006 and 2015, only two
African American men’s names were forwarded to Drs. Gay and Thompson to interview for the
In its motion, Defendant asserts that African American men made up 1.69% of the applicant pool.
[Def.’s Br. at 29]. This may stem from their miscalculation that the 3 African American male applicants
in 2007 out of a total of 141 applicants constituted 1.45% of that year’s pool whereas it actually
constitutes 2.13%. (See id. at 28).
full-time English Generalist position, one of whom was Plaintiff and another male who was hired
and remains employed by Defendant. [Def.’s Br. at 27 n. 16] (citing [ECF 21-23]). It is clear
that, in context, Plaintiff’s contention that only five out of 124 full-time faculty members are
African American men supports an inference of discrimination, is baseless, and Plaintiff’s
statistical evidence is not probative of Defendant’s alleged discriminatory intent. See Ezold, 983
F.2d at 543. 22
Plaintiff likewise fails to establish that similarly situated persons who are not members of
his protected class were treated more favorably. Yan Yan, 2014 WL 4639400, at *8; Walker, 558
F. App’x at 218. As previously stated, of the thirteen applicants interviewed by Drs. Gay and
Thompson for the English Generalist position, only two were not recommended for hire: Plaintiff
and Alexandra Fields, neither of whom had a Master’s degree in English or a closely-related
field. The remaining eleven applicants had either a Master’s and/or Ph.D degrees in English or a
closely-related field. Thus, the only similarly situated candidate who was not in Plaintiff’s
protected class, Ms. Fields, was not treated more favorably than he was.
Plaintiff does not dispute that Ms. Fields was not treated more favorably. Instead, he
argues that in 2010, Drs. Gay and Thompson hired J.B., 23 who is Caucasian, despite having a
Master’s degree in Education, the same graduate degree Ms. Fields possesses and, thereby, J.B.,
does not possess a degree in a closely-related field or more than eighteen graduate credits that
Plaintiff’s final argument concerning an inference of discrimination, that Defendant advertised
and used Plaintiff’s accomplishments before failing to hire him establishes such an inference, is entirely
without legal support. Defendant’s advertisement of Plaintiff’s accomplishments does not establish that
Plaintiff was discriminated against when Defendant failed to hire him.
Plaintiff identifies this individual by the initials “EGB,” and states that he is a “Caucasian female
who identifies as male.” [Pl.’s Br. at 10]. “EGB” were the initials that appear on J.B.’s graduate
transcript. This Court will refer to this individual as J.B.
paid significant attention to the English language. [Pl.s’ Br. at 10, 19]. 24 In other words,
Plaintiff argues that J.B. is similarly situated to Plaintiff because she does not have a closelyrelated degree and yet she was treated more favorably.
Defendant contests the mischaracterization of J.B.’s graduate degree and argues that
J.B.’s degree is a Master’s of Science in Education, with a major in Reading, Writing, and
Literacy. 25 (Def.’s Br. at 11) (citing [ECF 22-13 at Ex. U] at 2) His course studies included
numerous courses in English and Literature, such as, inter alia, Adult Literacy, Reaching
Reading and Study at Colleges & Universities, and Literature for Children and Adolescents.
[ECF 22-13 at Ex. U at 2]. Defendant contends that J.B.’s graduate transcript identifies more
than eighteen credits of graduate level work in English, literature, developmental English, or
reading, 26 and, as a result, J.B. has a closely-related degree and was qualified for the English
Generalist position for which he was hired.
Defendant’s argument is supported by the factual record. A review of the supporting
documents establishes that J.B. completed more than eighteen graduate credits in English,
literature, developmental English, or reading and, thus, his Master’s degree is one in a closely
related field. Plaintiff’s conclusory assertion that because J.B.’s Master’s degree is in Education
it cannot be considered to be a closely-related degree is entirely unsupported. That J.B.’s
Master’s degree is in Education does not, in and of itself, determine whether J.B. has a degree in
Plaintiff also notes that J.B. does not have a Bachelor’s degree in English. [Pl.’s Br. at 19].
Because the job posting listing the minimum qualifications does not identify any specific Bachelor’s
degree an applicant must possess, but, rather, focuses entirely on Master’s degrees or Ph.Ds, J.B.’s
undergraduate degree is not relevant to whether J.B. was qualified for the English Generalist position.
Ms. Fields’ graduate coursework focused on teaching and urban education. [ECF 22-15].
The University of Pennsylvania does not assign “credits” to its classes but rather “credit units,”
each of which is the equivalent four-semester-hour course. [ECF 23-5 at 2].
a closely-related field. Instead, it was Drs. Gay and Thompson’s review of this transcript and the
course description which revealed that the courses paid “significant attention to the English
language, its structure, history or the works of art produced in English,” the same standard that
was applied to Plaintiff and Ms. Fields that contributed to the closely-related field determination.
Because the undisputed facts support that J.B. had a Master’s degree in a closely-related field,
Plaintiff has failed to establish that J.B. was similarly situated to Plaintiff. As a result, no
discriminatory intent can be assumed based upon Defendant’s hiring of J.B. as an English
Generalist, and Plaintiff has failed to establish that any similarly situated individuals who are not
part of Plaintiff’s protected classes were treated more favorably.
Based on the totality of the evidence considered, Plaintiff has not established the fourth
prong to establish a prima facie case under the McDonnell Douglas framework, namely that
there is a genuine dispute of material fact such that a reasonable factfinder could conclude that
the adverse employment action occurred under circumstances that could give rise to an inference
of discrimination 27or that similarly situated persons who are not members of Plaintiff’s protected
classes were treated more favorably. Accordingly, because Plaintiff relies primarily on “bare
assertions, conclusory allegations or suspicions,” and does not provide factual support to show
that he is qualified for the English Generalist position, that the failure to hire him was done under
circumstances that could give rise to an inference of discrimination, or that similarly situated
persons who are not members of Plaintiff’s protected class were treated more favorably,
Regarding Plaintiff’s separate race and gender discrimination claims, the fact that several men
and several African Americans were approved by Drs. Gay and Thompson and hired in 2015 for the
English Generalist position Plaintiff applied for “undercuts Plaintiffs claim that the decisions were
motivated by racial [or gender-based] animus.” See Fitzgerald, 2016 WL 3854055, at *5; see also Ansell
v. Green Acres Contracting Co., 347 F.3d 515, 524 (3d Cir. 2003) (“an employer’s favorable treatment of
other members of a protected class can create an inference that the employer lacks discriminatory
Defendant is entitled to summary judgment on Plaintiff’s race, gender, and intersectional claims
under Title VII and his race and gender discrimination claims under § 1981.
Plaintiff Failed to Show Pretext
Plaintiff has also failed to demonstrate that there is a genuine dispute of material fact as
to whether Defendant’s proffered legitimate, non-discriminatory reasons for not hiring him as a
full-time English Generalist were pretext for discrimination. As noted above, once a plaintiff
sets forth a prima facie case of discrimination, the burden shifts to the employer to set forth a
legitimate non-discriminatory reason for the challenged adverse employment actions.
burden of an employer to articulate a legitimate non-discriminatory reason for its employment
action is “relatively light.” Fuentes, 32 F.3d at 763. Indeed, “[t]he employer satisfies its burden
of production by introducing evidence which, taken as true, would permit the conclusion that
there was a non-discriminatory reason for the unfavorable employment decision.” Id. at 763.
Here, Defendant set forth the following legitimate, non-discriminatory reasons for its
decision to not hire Plaintiff as a full-time English Generalist; to wit: Plaintiff was not qualified
because he lacked the requisite graduate degree or a degree in a closely related field and did not
interview well, as he was unable to explain, inter alia, how he would meet the basic standards of
a full-time English Generalist. [Def.’s Br. at 24]. Defendant argues that Plaintiff cannot show
that the articulated reasons for its decision were pretextual. (Id. at 25-32).
To overcome Defendant’s stated reasons for its adverse employment action, Plaintiff
must present evidence that could either lead a reasonable factfinder to: (1) disbelieve
Defendant’s articulated legitimate reasons for not hiring Plaintiff; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of
Defendant’s actions. Fuentes, 32 F.3d at 764. Plaintiff must point to evidence which would
“allow a factfinder reasonably to infer that each of the employer’s proffered nondiscriminatory
reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is a pretext).” Id. (emphasis in original).
“While this standard places a difficult burden on the plaintiff, ‘[i]t arises from an inherent tension
between the goal of all discrimination law and our society’s commitment to free decision making
by the private sector in economic affairs.’” Id. (citations omitted). It is not enough that the
employer’s decision was wrong or mistaken; rather, a plaintiff must demonstrate that “the
employer’s articulated reason was . . . so plainly wrong that it cannot have been the employer’s
real reason.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999) (internal quotations
Thus, the inquiry is not “whether the employer is wise, shrewd, prudent or
competent;” but rather, “whether discriminatory animus motivated the employer.” Fuentes, 32
F.3d at 765. “[M]ore than a denial of promotion as a result of a dispute over qualifications must
be shown to prove pretext.” Steele v. Pelmor Labs. Inc., 642 F. App’x 129, 135 (3d Cir. 2016)
(quoting Bennun v. Rutgers State Univ., 941 F.2d 154, 170 (3d Cir. 1991)). Instead, a plaintiff
must show “that the qualifications of the person actually promoted were so much lower than
those of h[is] competitors that a reasonable factfinder could disbelieve the claim that the
employer was honestly seeking the best qualified candidate.” Id. (quoting Bray v. Marriott
Hotels, 110 F.3d 986, 999 (3d Cir. 1997) (Alito, J., dissenting). “In the absence of such a
significant degree of difference in qualifications that may arouse a suspicion of discrimination,
we defer to the employer’s hiring decisions, as Title VII ‘was not intended to diminish traditional
management prerogatives.’” Id. (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
259 (1981)). Because “the prima facie case and pretext inquiries often overlap,” a court may
consider the same evidence at both stages of the McDonnell Douglas analysis. Doe v. C.A.R.S.
Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008).
In his response, Plaintiff does not address Defendant’s reasons for not hiring him nor
argue the reasons offered were pretextual. Instead, Plaintiff presents evidence that Defendant’s
decision was made with “discriminatory animus” similar to his argument to support the fourth
prong to establish a prima facie case under the McDonnell Douglas framework. Likewise, in his
sur-reply, Plaintiff, without specifically referencing pretext, identifies additional evidence he
believes supports an inference of discriminatory animus. [ECF 26 at 2-3]. Thus, a fair reading
of Plaintiff’s response and sur-reply shows that Plaintiff has failed to argue that Defendant’s
reasons for not hiring him were pretextual. As such, Plaintiff has failed to meet his burden to
point to evidence that would “allow a factfinder reasonably to infer that each of the employer’s
proffered nondiscriminatory reasons . . . was either a post hoc fabrication or otherwise did not
actually motivate the employment action . . . .” See Fuentes, 32 F.3d at 764.
Even construing Plaintiff’s evidence of discriminatory animus as evidence meant to
address Defendant’s pretextual arguments, see Doe, 527 F.3d at 370, this evidence is still
insufficient to allow a reasonable factfinder to infer that Defendant’s reasons were pretextual.
As previously discussed, Plaintiff relies on the stray comments and actions of Drs. Gay and
Thompson, the statistical evidence of Defendant’s hiring practices of African American men as
English Generalists, and Defendant’s prior advertisement of Plaintiff’s accomplishments, as
evidence which supports that Defendant’s decision was made with discriminatory animus. [Pl.’s
Br. at 16-19]. For the same reasons Plaintiff’s arguments were rejected when considering them
in the context of the prima facie case analysis, these arguments are again rejected. See Ezold, 983
F.2d at 542-43, 545. In Plaintiff’s sur-reply he relies on the following additional evidence: (1)
Dr. Gay told Dr. Hall-Karambe that Dr. Gay does not have a problem with the “N-word” and that
Dr. Gay “has a tendency to ignore when people are being racially negative towards her;” 28 (2)
Dr. Hall-Karambe testified during her deposition that Dr. Thompson discriminates against
African American men; 29 and (3) Dr. Thompson “offered that skin color between mentor and
mentee has no overriding significance.” [ECF 26 at 2-3]. 30
While Plaintiff acknowledges that these comments are not direct to hiring, he argues that
they can support his inference of discrimination claim. (Id.). This argument, however, lacks
merit. There is simply no basis to support that Dr. Gay’s alleged statements substantiate that she
affirmatively sought to discriminate against Plaintiff on account of his race, gender, or both.
Likewise, Dr. Thompson’s alleged belief that the skin color between a mentor and mentee is
insignificant has no bearing on whether Dr. Thompson sought to discriminate against Plaintiff on
account of his race, gender, or both.
Additionally, Dr. Hall-Karambe’s
belief that Dr.
Thompson discriminates against African Americans is speculative at best.
None of these
assertions satisfy Plaintiff’s “difficult burden” to put forth evidence that would allow a jury to
infer that Defendant’s articulated reason for not hiring Plaintiff, i.e., his lack of the necessary
academic credentials, was merely pretextual.
In addition, Plaintiff has not presented any
evidence that any of the individuals actually hired for the English Generalist position had
Plaintiff cites to page 96 of Dr. Ardencie Hall-Karambe’s deposition transcript, which he states is
attached as Exhibit A. There are no exhibits attached to Plaintiff’s sur-reply, and Dr. Hall-Karambe’s
deposition transcript, which is attached to Plaintiff’s response as Exhibit P, [ECF 22-11], does not contain
page 96, so there is no way for this Court to confirm the truth of Plaintiff’s factual assertion.
This deposition testimony appears in the Tr. of Ardencie Hall-Karambe April 20, 2016
Deposition [ECF 22-11 at Ex. P] at 92.
Plaintiff cites to page 57 of Dr. Thompson’s deposition transcript, which he states is attached as
Exhibit B. However, there are no exhibits attached to Plaintiff’s sur-reply, and Dr. Thompson’s
deposition transcript attached to Plaintiff’s response as Exhibit X, [ECF 22-14], does not contain page 57,
nor does the portion of the deposition transcript attached to Defendant’s motion. [ECF 21-5]. As a result,
there is no way to confirm the truth of Plaintiff’s assertions regarding Dr. Thompson’s alleged testimony.
qualifications “so much lower than [Plaintiff’s] that a reasonable factfinder could disbelieve the
claim that [Defendant] was honestly seeking the best qualified candidate.” See Steele, 642 F.
App’x at 135. 31
For the foregoing reasons, this Court concludes that Plaintiff has not put forth evidence
contradictions” in Defendant’s reasons for not hiring Plaintiff, such that “a reasonable factfinder
could rationally find them unworthy of credence and, hence, infer that the [Defendant] did not
act for the asserted non-discriminatory reasons.” Anderson v. Wachovia Mortg. Corp., 621 F.3d
261, 277 (3d Cir. 2010) (quoting Fuentes, 32 F.3d at 764-65). Because Plaintiff has entirely
failed to put forth evidence that would allow a factfinder to conclude that Defendant’s reasons
for not hiring him were pretextual, Defendant is entitled to summary judgment on Plaintiff’s
race, gender, and intersectional claims under Title VII and his race and gender discrimination
claims under § 1981.
Based upon the foregoing reasons, Defendant’s motion for summary judgment is granted.
An Order consistent with this Memorandum Opinion follows.
NITZA I. QUIÑONES ALEJANDRO, U.S.D.C. J.
This Court notes that, while subject to a dispute of fact, it appears that the final decision-maker
with respect to Defendant’s hiring decisions may have been Defendant’s President, Dr. Guy Generals,
who is an African American man. [Def.’s Br. at 30] (citing Tr. of Dr. Gay August 12, 2016 Deposition,
[ECF 21-4], at 11, 197). If true, the fact that Dr. Generals is, like Plaintiff, an African American man,
undercuts any argument of pretext. See Jakimowicz v. City of Philadelphia, 2010 WL 2649890, at *6
(E.D. Pa. June 30, 2010) (noting that a Caucasian plaintiff had failed to establish pretext when an African
American individual merely recommended the adverse employment action that was subject to approval
by another Caucasian individual). However, because whether Dr. Generals was the final decision-maker
is subject to a genuine dispute, this Court did not rely on this fact in reaching its decision.
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