KELLY-PIMENTEL v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al

Filing 64

MEMORANDUM re 48 MOTION for Summary Judgment filed by SHIRLEY R. MOORE SMEAL and STEVEN W. DAVY, JOHN E. WETZEL. Signed by Judge Mark A. Kearney on 4/13/2017. (kly)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DR. G. MARISA KELLY-PIMENTEL

v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.

: CIVIL ACTION
:
:
: NO. 15-1463
:
:
:

KEARNEY, J.

April 13, 2017
MEMORANDUM

Commonwealth employees claiming race discrimination denied them a promotion are
entitled to pursue their claim through the State Civil Service Commission and, if necessary, the
Pennsylvania Commonwealth Court.

We are faced today with a Commonwealth employee

disappointed by state officials’ decision to select another candidate for promotion.

While

pursuing remedies in the Civil Service Commission, she sued in this Court challenging the same
decision alleging the decision-makers exhibited discriminatory intent by promoting another
qualified candidate rather than her.

Both the Civil Service Commission (after evidentiary

hearings) and the Commonwealth Court (on appeal) found no evidence of race discrimination.
She now asks to try again in this Court. Under the collateral estoppel doctrine, we cannot revisit
issues fully and finally litigated. Even if collateral estoppel did not bar our re-litigation of these
same claims, the disappointed employee must adduce evidence to overcome an extensive
summary judgment motion seeking to dismiss claims against supervisors. Absent genuine issues
of material fact both as to the collateral estoppel bar and on the merits, we grant Defendants’
motion for summary judgment in the accompanying Order.

I. Undisputed Facts1
The Pennsylvania Department of Corrections (the “Department”) employed Dr. KellyPimentel as an Adult Basic Education Teacher at the State Correctional Institution at Greene
(“SCI-Greene”).2 The Department provides education services to inmates through the Bureau of
Correction Education (“BCE”).3 It is the Department’s policy to provide “a full range of
centralized educational services consisting of academic education, vocational education,
recreation services, library services, and special education, as well as educational testing and
academic and vocational counseling” with a goal of preparing inmates for the General Education
Development (“GED”) examination.4
The Department is an “administrative department” within the Commonwealth of
Pennsylvania and is headed by the Secretary of Corrections, Defendant John E. Wetzel.5
Secretary Wetzel supervises the Executive Deputy Secretary, Defendant Shirley Moore Smeal. 6
Defendant Steven Davy served as the Director of BCE during the relevant time period and
reported to Executive Deputy Secretary Moore Smeal.7
Director Davy supervised three Education Administration Managers, each covering the
Eastern Region, Western Region, and Specialized Facilities/Programs. In February 2014, the
Education Administration Manager for the Western Region announced his retirement, and the
Department issued a job posting seeking candidates to fill this Civil Service position.8 Eight
candidates applied for the Western Region Manager position including Dr. Kelly-Pimentel, an
African-American woman, and Terri Fazio, a Caucasian woman.9 Dr. Kelly-Pimentel, an Adult
Basic Education Teacher at SCI-Greene, began working for the Department in 1988, and worked
in other corrections education positions including as Principal at SCI-Greene and Academic
Counselor at SCI-Pittsburgh.10 Ms. Fazio began working for the Department in 1990, held the

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position of Principal at SCI-Waymart, and worked in other corrections education positions
including as an Adult Basic Education Teacher and Academic Counselor.11
Director Davy and Executive Deputy Secretary Moore Smeal interviewed six candidates
for the Western Region Manager position including Dr. Kelly-Pimentel and Ms. Fazio.12
Director Davy and Executive Deputy Secretary Moore Smeal asked all candidates the same
questions and noted the candidates’ responses.13 Director Davy and Executive Deputy Secretary
Moore Smeal additionally considered application packets submitted by Dr. Kelly-Pimentel and
Ms. Fazio. 14
Director Davy and Executive Deputy Secretary Moore Smeal each individually ranked
the candidates with each selecting Ms. Fazio as the top candidate.15 Dr. Kelly-Pimentel ranked
fifth.16 Secretary Wetzel did not interview or rank the candidates or participate in the decision to
select Ms. Fazio for the position.17
Director Davy and Executive Deputy Secretary Moore Smeal selected Ms. Fazio for the
Education Administration Manager position on May 22, 2014.18 Ms. Fazio did not immediately
assume the position because the Department implemented a hiring freeze on May 27, 2014 due
to budget concerns.19 Ms. Fazio became an acting Education Administration Manager effective
July 6, 2014.20 Director Davy and Executive Deputy Secretary Moore Smeal signed an Equal
Employment Review Certificate and submitted it to the Department’s Equal Employment
Opportunity Office.21 The Equal Opportunity Officer approved the Equal Employment Review
Certificate for Ms. Fazio’s position on September 2, 2014.22 The Department then notified the
remaining candidates, including Dr. Kelly-Pimentel, they were not selected for the Education
Administration Manager position.23
On September 9, 2014, Dr. Kelly-Pimentel emailed Brittany Chizar, Human Resource

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Assistant for the Department, copied to Secretary Wetzel and Raphael Chieke, the Director of the
Office of Equal Employment Opportunity, expressing her disagreement “the person selected
[Ms. Fazio] was more qualified for the position”24 than she. Dr. Kelly-Pimentel then appealed to
the State Civil Service Commission, challenging the Department’s decision to hire Ms. Fazio for
the Education Administration Manager position as motivated by race discrimination.25
The State Civil Service Commission held evidentiary hearings on February 26, 2015 and
April 30, 2015.26 On December 18, 2015, the State Civil Service Commission issued a 49-page
opinion dismissing her appeal, finding Dr. Kelly-Pimentel failed to present evidence establishing
discrimination.27 On January 15, 2016, Dr. Kelly-Pimentel appealed the State Civil Service
Commission’s decision to the Pennsylvania Commonwealth Court.28 Dr. Kelly-Pimentel argued
the State Civil Service Commission erred in finding no discrimination.29 The Pennsylvania
Commonwealth Court affirmed the State Civil Service Commission’s conclusion Dr. KellyPimentel “failed to put forth sufficient evidence to demonstrate technical discrimination” and
“failed to present evidence of traditional, race-based discrimination.”30
On November 9, 2015, after the State Civil Service Commission’s evidentiary hearings
but before it issued its adjudication, Dr. Kelly-Pimentel filed her complaint in this Court against
the Department, Secretary Wetzel, Executive Deputy Secretary Moore Smeal, and Director Davy
alleging race-based employment discrimination in violation of Title VII.

31

After the close of

discovery, Defendants move for summary judgment on Dr. Kelly-Pimentel’s remaining § 1983
equal protection claim against the individual Defendants.

4

II. Analysis32
Defendants primarily argue Dr. Kelly-Pimentel’s claims of discrimination are precluded
under the doctrine of collateral estoppel by the Commonwealth Court’s February 1, 2017
decision affirming the State Civil Service Commission (the “Commission”). Defendants
alternatively argue, if collateral estoppel does not apply to preclude Dr. Kelly-Pimentel’s claim,
Secretary Wetzel is entitled to summary judgment because there is no evidence to support a
supervisory liability claim against him and there is no evidence to support race-based
discrimination against Executive Deputy Secretary Smeal Moore and Director Davy.
A. Dr. Kelly-Pimentel’s claims are barred by collateral estoppel.
Collateral estoppel, also known as issue preclusion, “prevents parties from relitigating an
issue that has already been actually litigated.”33 “When a prior case has been adjudicated in a
state court, federal courts are required by 28 U.S.C. § 1738 to give full faith and credit to the
state judgment and, in section 1983 cases, apply the same preclusion rules as would the courts of
that state.”

34

We are directed to “look principally to state law in deciding what effect to give

state-court judgments.”35
Under Pennsylvania law, relitigation of an issue is barred by collateral estoppel where:
“(1) the issue decided in the prior adjudication was identical with the one presented in the later
action; (2) there was a final judgment on the merits; (3) the party against whom the plea is
asserted was a party or in privity with a party to the prior adjudication; and (4) the party against
whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior
action.”36 We apply the four factor test to determine whether the Commonwealth Court’s
findings are entitled to preclusive effect.

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1. The issue decided in the Commonwealth Court is identical to the issue in
this action.
Dr. Kelly-Pimentel appealed her “non-selection” for promotion under Section 951(b) of
the State Civil Service Act (the “Act”) providing “[a]ny person who is aggrieved by an alleged
violation of section 905.1 of this act may appeal in writing to the commission . . .. Upon receipt
of such notice of appeal, the commission shall promptly schedule and hold a public hearing.”37
Section 905.1 provides: “No officer or employe of the Commonwealth shall discriminate
against any person in recruitment, examination, appointment, training, promotion, retention or
any other personnel action with respect to the classified service because of political or religious
opinions or affiliations because of labor union affiliations or because of race, national origin or
other non-merit factors.”38
In her appeal before the Commission, Dr. Kelly-Pimentel alleged both “technical” and
“traditional” discrimination on the basis of race in violation of the Act. “‘Traditional’ forms of
discrimination focus upon such factors as race, sex or age” while “‘technical’ discrimination
involves a violation of procedures required pursuant to the Act or related Rules.”39 In her
“traditional” discrimination claim, Dr. Kelly-Pimentel alleges the Department did not select her
for the Education Administration Manager position because of her race, relying on a disparateimpact theory first recognized in Griggs v. Duke Power Co.40 and discrimination in violation of
the Act under the standards in Henderson v. Commonwealth of Pa.41
Dr. Kelly-Pimentel characterizes her disparate impact claim as a “built-in headwinds
theory.”42 In Griggs, the Supreme Court first recognized a disparate impact claim finding Title
VII requires “the removal of artificial, arbitrary, and unnecessary barriers to employment when
the barriers operate invidiously to discriminate on the basis of racial or other impermissible
classification.” 43 Title VII “proscribes not only overt discrimination but also practices that are
6

fair in form, but discriminatory in operation.”44 A plaintiff need not prove intent in a disparate
impact case because “good intent or absence of discriminatory intent does not redeem
employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority
groups and are unrelated to measuring job capability.”45 We construe Dr. Kelly-Pimentel’s
reference to her claim as a “build-in headwinds” theory as a disparate impact claim.
In Henderson, the Commonwealth Court adopted the standard of proof for “traditional”
discrimination claims under Section 905.1 of the Act as applied by the Pennsylvania Supreme
Court in Allegheny Housing Rehab. Corp. v. Pa. Human Relations Comm’n46 which in turn is a
modified version of the prima facie analysis of McDonnell Douglas Corp. v. Green, a disparate
treatment claim.47 Under Henderson, a claim of “traditional” discrimination under the Act first
requires a plaintiff make a prima facie case of discrimination “by producing sufficient evidence
and, if believed and otherwise unexplained, indicates that more likely than not discrimination has
occurred.”48 When a plaintiff satisfies the prima facie case, “a presumption of discrimination
arises which, if not rebutted by the appointing authority, becomes determinative of the factual
issues of the case.”49 When plaintiff satisfies her initial burden, “the burden of production shifts
to the appointing authority to clearly advance a legitimate non-discriminatory reason for removal
through the introduction of admissible evidence.”50 If the prima facie case is rebutted, the
presumption of discrimination drops from the case and the burden shifts to the plaintiff to show,
by a preponderance of the evidence, the authority’s proffered legitimate non-discriminatory
reason for its action “was motivated by non-merit or discriminatory factors.”51 A plaintiff may
make this showing “either directly or persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer’s proffered explanation
is unworthy of credence.”52

7

Dr. Kelly-Pimentel argues disparate impact and disparate treatment, and does not dispute
she raised these same discrimination claims based on a Griggs disparate impact theory and a
disparate treatment theory under Henderson at her appeal before both the Commission53 and the
Commonwealth Court.54 Notwithstanding the identical claims of discrimination made before the
Commission, Commonwealth Court, and this Court, Dr. Kelly-Pimentel argues the issues are not
identical because the issue here is “intentional discrimination, an issue that applies to individuals
and could not have been raised against the [Department].”55 It is true Dr. Kelly-Pimentel brings
her claims against Secretary Wetzel, Executive Deputy Secretary Moore Smeal, and Director
Davy in their individual capacities and not against the Department. But this does not mean the
issue before us is not identical to the issue addressed and ruled upon by the Commission and the
Commonwealth Court.
To prevail in her §1983 claim, Dr. Kelly-Pimentel must show Defendants, acting under
color of state law, deprived her of a right secured by the United States Constitution or federal
law.56 Dr. Kelly-Pimentel must “prove the existence of purposeful discrimination” by showing
she “receiv[ed] different treatment from that received by other individuals similarly situated.”57
Dr. Kelly-Pimentel alleges Defendants, acting in their personal capacity, violated her rights
protected by the Equal Protection Clause of the Fourteenth Amendment “by racially
discriminating against [her] in failing to promote, using pretextual grounds, and failing to protect
[her] from harassing and retaliatory conduct.”58 Dr. Kelly-Pimentel argues we should deny
Defendants’ motion for summary judgment because Defendants “used illicit and illegal tactics to
ignore Civil Service rules and state teaching certification requirements in order to prevent [her]
promotion . . ., [as] an African American with exemplary qualifications.”59
The Commission and Commonwealth Court already decided Dr. Kelly-Pimentel’s

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allegations of discrimination. The Commission identified the issue as: “[w]hether the appointing
authority did not select appellant for this position [Education Administration Manager] for
reasons motivated by discrimination.”60 The Commission concluded Dr. Kelly-Pimentel “has not
presented evidence establishing discrimination violative of Section 905.1 of the Civil Service
Act, as amended.”61 As discussed above, Section 905.1 of the Act prohibits Commonwealth
officers and employees from discriminating against any person “in recruitment, examination,
appointment, training, promotion, retention or any other personnel action” in employment
because of “race, national origin or other non-merit factors.” The Commonwealth Court, on
review of the Commission’s decision, considered Dr. Kelly-Pimentel’s claims of both technical
and traditional discrimination and concluded Dr. Kelly-Pimentel failed to present evidence of
technical discrimination and evidence of traditional, race-based discrimination.62
Dr. Kelly-Pimentel’s argument simply concludes, without elaboration, “the issues are not
identical” because her claims of discrimination are now brought against the Defendants
individually rather than the Department itself. Dr. Kelly-Pimentel does not explain how the
dispositive issue – whether the Department’s selection of Ms. Fazio over Dr. Kelly-Pimentel for
the Education Administration Manager position is based on race – is any different than what has
already been adjudicated by the Commission and Commonwealth Court. Accordingly, we find
the issue decided in the Commission and Commonwealth Court is identical to the issue before
us, and the first element of the collateral estoppel test is satisfied.
2. The Commonwealth Court’s decision is a final judgment on the merits.
The Commonwealth Court’s February 1, 2017 decision is a final judgment on the merits.
Dr. Kelly-Pimentel filed an application for reconsideration on February 27, 2017 denied by the
Commonwealth Court as untimely on March 2, 2017.63 Dr. Kelly-Pimentel did not file a petition

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for allowance of appeal from the Commonwealth Court to the Pennsylvania Supreme Court, and
the decision of the Commonwealth Court is final.64
Dr. Kelly-Pimentel admits a final judgment on the merits, but asserts neither the
Commission nor the Commonwealth Court “addressed the traditional discrimination claims as
they deemed them not properly developed.”65 To support this argument, Dr. Kelly-Pimentel cites
the Commonwealth Court’s opinion addressing her contention the Commission failed to address
her pretext argument under the Henderson standard: “Thus, to the extent the Commission did not
address [Kelly-Pimentel’s] ‘pre-textual argument raised under Henderson,’ it was under no
obligation to do so, as the argument was not properly developed.”66
We disagree with Dr. Kelly-Pimentel’s interpretation of the Commonwealth Court’s
opinion. First, the Commonwealth Court attributed the Commission’s alleged failure to address
the pretext argument to Dr. Kelly-Pimentel’s failure to develop the argument. Secondly, we read
the Commission’s adjudication to have considered a prima facie case of discrimination. After
reviewing evidence, the Commission concluded Dr. Kelly-Pimentel presented enough evidence
to meet her burden of establishing a prima facie case of discrimination, citing Nwogwugwu.67
After making credibility determinations at its evidentiary hearing, the Commission found the
Department met its burden of offering a legitimate, non-discriminatory reason for its
employment action.68 Shifting the burden back to Dr. Kelly-Pimentel to show the Department’s
proffered legitimate, non-discriminatory reason is a pretext for discrimination, the Commission
found upon review of the record Dr. Kelly-Pimentel did not meet her burden.69
Dr. Kelly-Pimentel additionally argues the Commission and Commonwealth Court’s
“failure to address Griggs . . . and Henderson . . . issues proves they were nonessential to the
outcome” and her “case before the [Commission] was almost entirely grounded in civil service

10

rules were proof of technical discrimination was the focal point.”70 We disagree, finding both
the Commission and the Commonwealth Court addressed Dr. Kelly-Pimentel’s claims of
“traditional” discrimination.
We find the second element of the collateral estoppel test satisfied, finding final judgment
on the merits of Dr. Kelly-Pimentel’s traditional discrimination claim.
3. Same party.
This element is not disputed.
4. Dr. Kelly-Pimentel had a full and fair opportunity to litigate her
discrimination claims in the Commission and Commonwealth Court.
Dr. Kelly-Pimentel argues she did not have a full and fair opportunity to litigate her
discrimination claim, assigning blame to the Department’s “failure to produce the backup
documentation confirming the Staff Assistant position was the determinative factor in the
promotion of Ms. Fazio” and the Department’s failure “had a negative result for [her] before” the
Commission.71 Dr. Kelly-Pimentel asserts the Department “failed to respond to Court ordered
motions compelling the production of electronic discovery” and we should not allow this to “go
unnoticed.”72
This argument is without merit. This collateral estoppel element focuses on whether Dr.
Kelly-Pimentel had a full and fair opportunity to litigate the issue in the earlier actions. Dr.
Kelly-Pimentel fails to explain how she did not have a full and fair opportunity to litigate her
claims of discrimination in the Commission and Commonwealth Court. She complains only of
Defendants’ failure to comply with discovery orders in this Court prevents her from fully
presenting her case before us. This is not the standard. Under Pennsylvania law, a party is
denied a fully and fair opportunity to litigate “only when status procedures fall below the
minimum requirements of due process as defined by federal law.”73 Dr. Kelly-Pimentel fails to
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identify deprivation of due process in the Commonwealth Court.
Even if her complaints of Defendants’ discovery abuses are relevant, we find them
without merit. Dr. Kelly-Pimentel received all discovery she requested. Dr. Kelly-Pimentel filed
a motion to compel discovery on January 23, 2017.74 We granted the motion, ordering
Defendants to provide all discovery identified in the motion to compel by January 31, 2017.75
On February 21, 2017, Dr. Kelly-Pimentel filed a second motion to compel discovery.76 After
considering Defendants’ response and finding good cause for their short delay in producing
fulsome electronic discovery based on illness and working to overcome obstacles in the
Commonwealth bureaucracy, we granted, on February 22, 2017, Dr. Kelly-Pimentel’s motion in
part upon consent and ordered Defendants to produce all outstanding electronic discovery by
February 28, 2017.77 On March 6, 2017, we granted Defendants’ motion seeking an extension of
time to file summary judgment and Daubert motions in light of the parties’ interest in pursuing
settlement through mediation.78
Although clearly understanding available avenues of relief from perceived discovery
abuses, Dr. Kelly-Pimentel did not file after February 21, 2017 any further motions to compel or
any motion complaining of Defendants’ discovery responses. Dr. Kelly-Pimentel argues
Defendants produced “a final batch of documents” on March 8, 2017 and suggests she “would
prefer an opportunity for a hearing to show that the final batch of documents, eight days beyond
the February 28th deadline, are not responsive to the email searched requested in discovery . . .
[t]hereby leveling the playing field and affording the Plaintiff with the legitimate opportunity to
present a more complete case unmasking the conduct behinds [sic] the scenes.”79 We decline to
do so after summary judgment briefing and, in any case, providing her with such an opportunity
is not relevant to whether she received a full and fair opportunity to litigate claims of

12

discrimination in the Commission and Commonwealth Court. We find the fourth element of the
collateral estoppel test satisfied.
Collateral estoppel, or issue preclusion, ensures “once an issue is actually and necessarily
determined by a court of competent jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to the prior litigation.” 80 The
Commission and the Commonwealth Court considered Dr. Kelly-Pimentel’s claims of
discrimination and she had the opportunity to obtain a full and fair adjudication. Accordingly,
we grant summary judgment in favor of Defendants.
B. Even if her claims are not precluded by collateral estoppel, Dr. KellyPimentel adduced no evidence to support her claim of supervisory liability
against Secretary Wetzel or a claim for personal liability against Director
Davy and Executive Deputy Secretary Moore Smeal.
Even if her claims are not precluded by collateral estoppel, we find Dr. Kelly-Pimentel
failed to meet her burden of adducing evidence necessary under Rule 56 to defend summary
judgment.
1. Claim against Secretary Wetzel
Dr. Kelly-Pimentel alleges a claim for supervisory liability against Secretary Wetzel. A
§1983 claim for supervisory liability cannot be based on respondeat superior.81 Our Court of
Appeals recognizes two theories of supervisory liability: first, individuals who are policymakers
may be liable under §1983 if it is shown they “with deliberate indifference to the consequences,
established and maintained a policy, practice or custom which directly caused the constitutional
harm;” and under the second theory, a supervisor may be personally liable under §1983 if he
“participated in violating the plaintiff's rights, directed others to violate them, or, as the persons
in charge, had knowledge of and acquiesced in their subordinates' violations.”82
The basis of Dr. Kelly-Pimentel’s supervisory liability claim against Secretary Wetzel is
13

unclear. In her response to summary judgment, Dr. Kelly-Pimentel’s argument heading asserts
Secretary Wetzel is not entitled to summary judgment because “he has demonstrated deliberate
indifference to the discriminatory hiring practices” of the Department.83 This suggests a liability
theory based on policy, practice, or custom causing constitutional harm. The Amended
Complaint alleges “policies and procedures in place and the responsibility of Defendant Wetzel”
including a “Policy Statement-Equal Employment Opportunity.”84 However, Dr. Kelly-Pimentel
does not allege Secretary Wetzel “established or enforced policies and practices directly causing
the constitutional violation” required to state a claim based on policy, practice, or custom. 85
Dr. Kelly-Pimentel cites to the Department’s 2014 Equal Employment Opportunity Plan
(“EEO Plan”) as evidence the Department maintains discriminatory hiring practices. The EEO
Plan recognizes a “problem” with the underutilization of “females and/or minorities” in seven of
fourteen job groups.86 There is no evidence the Department’s EEO Plan established an
unconstitutional policy, when implemented, injured Dr. Kelly-Pimentel.87 At most, the EEO Plan
recognizes an underutilization of females and minorities which the Department seeks to
ameliorate through its EEO Plan, but the EEO Plan is not a policy, practice, or custom causing
the constitutional harms complained of by Dr. Kelly-Pimentel.
Dr. Kelly-Pimentel’s opposition to summary judgment also suggests she bases her
supervisory liability claim on the second theory, alleging Secretary Wetzel’s “express or implied
approval” of Director Davy and Executive Deputy Director Moore Smeal’s actions. Although
she admits Secretary Wetzel had no involvement in interviewing and ranking candidates, 88 Dr.
Kelly-Pimentel asserts Secretary Wetzel is liable as the “Captain of the DOC Ship.” Supervisory
liability cannot be based on respondeat superior; to succeed on her claim, Dr. Kelly-Pimentel
must show Secretary Wetzel “participated in violating plaintiff’s rights, directed others to violate

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them, or as the perso[n] in charge, had knowledge of and acquiesced in their subordinates’
violations.”89 Dr. Kelly-Pimentel does not cite evidence demonstrating Secretary Wetzel did so,
and there is no genuine issue of material fact on this issue.
Dr. Kelly-Pimentel suggests even if Secretary Wetzel “was unaware of the situation in
the present case, the filing of this complaint in federal court should have brought it to his
attention” and “now is the time to take action.”90 This is insufficient to hold Secretary Wetzel
liable on a theory of supervisory liability for the Department’s decision to hire Ms. Fazio. Dr.
Kelly-Pimentel must show Secretary Wetzel’s personal involvement through “personal direction
or of actual knowledge and acquiescence” at the time of the decision, not after-the-fact
knowledge.91
Secretary Wetzel is entitled to summary judgment on Dr. Kelly-Pimentel’s supervisory
liability claims.
2. There is no evidence to support a claim for individual liability against
Director Davy and Executive Deputy Secretary Moore Smeal for
discrimination.
Dr. Kelly-Pimentel asserts her equal protection92 claims against Directory Davy and
Executive Deputy Secretary Moore Smeal in their individual capacities. Claims against officials
in their personal capacity “seek to impose individual liability upon a government officer for
actions taken under color of state law.”93 To establish personal liability in her § 1983 action, Dr.
Kelly-Pimentel must show these individual Defendants, “acting under color of state law, caused
the deprivation of a federal right.”94 An equal protection claim requires a showing of intentional
discrimination.95
Dr. Kelly-Pimentel asks us to apply the burden shifting analysis to her claim of
employment discrimination, arguing Defendants failed to proffer a legitimate non-discriminatory

15

reason for their conduct.96 Defendants agree the McDonnell Douglas burden shifting analysis
developed in the context of Title VII applies here.97 Our Court of Appeals applies the McDonnell
Douglas framework to allegations of race discrimination under § 1983.98
Under the familiar McDonnell Douglas three-step framework, Dr. Kelly-Pimentel must
first establish a prima facie case of discrimination; 99 if she does so, Defendants must provide a
legitimate reason for their conduct; and, if the Defendants meet their burden, the presumption of
discriminatory action raised by the prima facie case is rebutted and Dr. Kelly-Pimentel must
show by the preponderance of the evidence Defendants’ reason is pretextual.100
Defendants satisfy their burden of production by “introducing evidence which, taken as
true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable
employment decision.”101 A defendant's burden at this stage is “relatively light,” and it “need not
prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting
paradigm the ultimate burden of proving intentional discrimination always rests with the
plaintiff.”102
Defendants proffer the following legitimate non-discriminatory reasons for selecting Ms.
Fazio for the Education Administration Manager position: her knowledge of and experience with
the Department’s principles, policies, and procedures and Ms. Fazio’s targeted responsive
answers to questions asked at the interview reflecting a recognition and understanding of specific
goals and actions of the Bureau of Corrections Education. Defendants cite Director Davy’s
memo to Mr. Chieke ranking each candidate and summarizing the reasons for each ranking.103
Ms. Fazio is ranked not only for her knowledge and experience of Department policies and
procedures, but her experience in dealing with Department staff at all levels, handling highly
confidential and sensitive information, demonstration of excellent interpersonal skills during the

16

interview, previous work experience demonstrating an ability to prioritize, multitask, and work
in a demanding environment, and responses to question regarding the GED electronic testing
process and her “impressive” responses to coordinating this testing process. 104 Dr. KellyPimentel is ranked fifth because of her lack of knowledge of Central Office operation and failure
to demonstrate interpersonal skills necessary for the position.105 At his deposition, Director Davy
testified he and Executive Deputy Secretary Moore Smeal discussed each candidate, looked at
each candidate comprehensively, and made a decision based on their assessment of the best
candidate for the position.106 At the Commission’s hearing, Director Davy similarly testified to
the reasons for his selection of Ms. Fazio as the strongest candidate.107 Executive Deputy
Secretary Moore Smeal similarly testified at the Commission’s hearing to her reasons for
selecting Ms. Fazio.108
Dr. Kelly-Pimentel argues Defendants failed to offer a legitimate non-discriminatory
reason for their conduct. We disagree. Defendants articulated a legitimate non-discriminatory
reason why they selected Ms. Fazio for the position. Under McDonnell Douglas, Dr. KellyPimentel must show Defendants’ legitimate non-discriminatory reasons are a pretext for race
discrimination. To show requisite pretext to defeat Defendants’ motion, Dr. Kelly-Pimentel
“must point to some evidence, direct or circumstantial, from which a factfinder could reasonably
either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely that not a motivating or determinative cause of the
employer's action.”109 Dr. Kelly-Pimentel’s evidence “if it relates to the credibility of the
employer's proffered justification, 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.”110

17

Dr. Kelly-Pimentel points to following evidence she contends are examples from the
record of Defendants’ “illegal and illicit conduct”: Defendants failed to follow state teaching
certification laws; Defendants falsified evaluations for a Staff Assistant position; Defendants
ignored credentials when they ranked candidates for the Education Administration Manager
position; Defendants withheld evidence supporting the Equal Employment Review Certificate;
Defendants failed to comply with motions to compel; and former Equal Employment
Opportunity director, Raphael Chieke, “may have been pressured to testify falsely” at the April
30, 2014 hearing before the Commission. We take each in turn.
Defendants’ failure to follow state teaching certification law
Dr. Kelly-Pimentel asserts Director Davy “operated outside the scope of his teaching
certificate while employed as Director of BCE” because his certification is only for elementary
school.111 The propriety of whether Director Davy could supervise principals is irrelevant to the
Defendants’ legitimate non-discriminatory reasons for hiring Ms. Fazio. Even if we construe the
evidence regarding Directory Davy’s certifications in the light most favorable to Dr. KellyPimentel, there is no nexus to the question of whether Defendants’ proffered justification is a
pretext for discriminatory promotion practices.
Defendants falsified evaluations for a Staff Assistant position
Dr. Kelly-Pimentel asserts Ms. Fazio applied for, and began working, in the position of
Staff Assistant in the Department’s Central Office in April 2014, one month before her interview
for the Education Administration Manager position, and her position in the Staff Assistant
position “was the deciding factor in her promotion.” Dr. Kelly-Pimentel alleges Ms. Fazio’s
employee performance review in the Staff Assistant position was “falsified” because the
evaluator checked the job status as “civil service” when it is not a civil service position. Dr.

18

Kelly-Pimentel does not identify whether Directory Davy or Executive Deputy Secretary Moore
Smeal filled out this report and how classifying the Staff Assistant position as civil service –
correctly or incorrectly – has any bearing on the question of whether Defendants’ proffered
justification is a pretext for discriminatory practices.
Defendants ignored credentials when they ranked candidates for the Education
Administration Manager position
Dr. Kelly-Pimentel disputes the ranking memo prepared by Director Davy for Mr. Chieke
because it is undated and makes no mention of levels of education, teaching certifications,
related work experience, or other job related credentials, and “appears to be based solely on the
responses to the interview questions, a violation of the Civil Service interview guide.” 112 Dr.
Kelly-Pimentel does not explain how the candidates’ response to interview questions is related to
race discrimination or how the failure to mention education level and teaching certifications are
at all relevant.113 Dr. Kelly-Pimentel’s dispute focuses on her higher education level than that of
Ms. Fazio, but she does not dispute levels of education or teaching certifications were not the
only criteria for selection.
Defendants withheld evidence supporting the Equal Employment Review Certificate
Directory Davy and Executive Deputy Secretary Moore Smeal filled out an Equal
Employment Opportunity Review Certificate (“EERC”) dated August 22, 2014.114

The

document includes the content of Director Davy’s ranking memo to Mr. Chieke. Dr. KellyPimentel asserts Defendants withheld evidence supporting the EERC form, citing paragraph 90
of her additional statement of fact at ¶ 90. Dr. Kelly-Pimentel does not explain what “evidence”
is withheld from the EERC form or provide us with cite supporting such an accusation. Although
unclear, we construe Dr. Kelly-Pimentel’s argument as taking issue with Defendants’ production
on January 31, 2017 of the “backup” pages to the EERC document. We note Defendants’
19

appendix includes only the first two pages of the EERC, while Dr. Kelly-Pimentel’s appendix
includes not only the first two pages of the EERC form, but three additional narrative pages. 115
We cannot know how or why the complete EERC form was or was not produced; however, we
cannot ascribe to it any nefarious inference to the question of whether Defendants’ proffered
reasons for hiring Ms. Fazio over Dr. Kelly-Pimentel is a pretext for discrimination.
Defendants failed to comply with motions to compel and former Equal Employment
Opportunity director, Raphael Chieke, “may have been pressured to testify falsely” at the April
30, 2014 hearing before the Commission.
As discussed above, Dr. Kelly-Pimentel filed two motions to compel which we granted.
To the extent Defendants failed to comply with our discovery orders, Dr. Kelly-Pimentel failed
to file motions objecting to Defendants’ document productions. In any case, discovery disputes
in 2017 are not relevant whether Defendants’ reasons in May 2014 are pretext for
discrimination.
Dr. Kelly-Pimentel additionally asserts Mr. Chieke “may have been pressured to testify
falsely” before the Commission. Reviewing her cites, it appears she disputes the veracity of Mr.
Chieke’s testimony before the Commission and Executive Deputy Director Moore Smeal’s
deposition testimony regarding her knowledge of Dr. Kelly-Pimentel’s email to Brittany Chizer,
Department Human Resource Assistant, and copied to Mr. Chieke. We find nothing in the
record cited by Dr. Kelly-Pimentel supporting an assertion Mr. Chieke “may have been
pressured” to falsely testify, and we do not see the nexus between such an assertion and whether
the Department’s proffered reason for selecting Ms. Fazio is pretextual.
Dr. Kelly-Pimentel fails to present evidence from which a reasonable jury could either
discredit Defendants’ proffered reasons for their actions or believe an invidious discriminatory
reason is more likely than not a motivating or determinative cause of their actions. Dr. Kelly-

20

Pimentel fails to carry her burden of production on the issue of pretext under the third step of the
McDonnell Douglas framework.
In their Statement of Undisputed Material Facts, Defendants assert “race was not used as
a factor in the selection of Fazio for the position,” citing to Director Davy’s deposition
testimony, Executive Deputy Secretary Moore Smeal’s deposition, and their testimony before the
Commission.116 Dr. Kelly-Pimentel responds: “statements made by the Defendants regarding
race in this case be dismissed as self-serving,” but provides no cite showing a genuine issue as to
this material fact. Dr. Kelly-Pimentel cannot rest on mere allegations, but must present actual
evidence creating a genuine issue as to a material fact for trial. 117 Plaintiffs must “go beyond the
pleadings and by [their] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”118
She must “do more than simply show that there is some metaphysical doubt as to the material
facts.”119 “[U]nsupported allegations ... and pleadings are insufficient to repel summary
judgment.”120
III.

Conclusion
We find Dr. Kelly-Pimentel’s equal protection claim precluded by collateral estoppel,

having already litigated the issue of discrimination based on disparate treatment before the
Commission and Commonwealth Court. Even if collateral estoppel did not preclude Dr. KellyPimentel’s claims, she fails to adduce evidence of discrimination. In the absence of evidence
from which she could prevail, summary judgment in favor of Defendants is granted.

1

Our Policies require a Statement of Undisputed Material Facts (“SUMF”) and an appendix in
support of summary judgment. Defendants filed their SUMF and appendix at ECF Doc. Nos. 53,
54. Dr. Kelly-Pimentel responded to Defendants’ SUMF, added additional facts she contends are
21

material to summary judgment, and supplemented the appendix with additional exhibits (ECF
Doc. No. 57, 56-4). References to exhibits in the appendices shall be referred to by Bates
number, for example, “1a.”
2

SUMF at ¶ 1.

3

Id. at ¶¶ 7, 8.

4

Id. at ¶¶ 14-16; 21a-23a; 27a.

5

Id. at ¶¶ 2, 5; see 71 P.S. § 61(a).

6

Id. at ¶¶ 4, 6.

7

SUMF at ¶¶ 9-10. Director Davy retired in June 2016. Id. at ¶ 10.

8

Id. at ¶¶ 18-19.

9

Id. at ¶¶ 22, 24, 27.

10

Id. at ¶¶ 25-26.

11

Id. at ¶¶ 28-29.

12

Id. at ¶¶ 33-35.

13

Id. at ¶ 36.

14

Id. at ¶¶ 36-37. Dr. Kelly-Pimentel disputes her application packet is complete. See Plaintiff’s
response to SUMF at ¶ 37 (ECF Doc. No. 57). Dr. Kelly-Pimentel submitted documents at her
May 14, 2014 interview (891a-910a) (ECF Doc. No. 56-6) after submitting an application with
supporting documentation on March 22, 2014 (71a-112a). Defendants do not dispute this. See
Defendants’ Response to Plaintiff’s Statement of Additional Material Facts at ¶¶ 85, 86 (ECF
Doc. No. 59).
15

SUMF at ¶¶ 38-39.

16

Id.

17

Id. at ¶ 40.

18

Id. at ¶ 49.

19

Id. at ¶¶ 45-46.

20

Id. at ¶¶ 47-49.
22

21

Id. at ¶ 51; 317a-318a.

22

SUMF at ¶ 52.

23

Id. at ¶ 53.

24

Id. at ¶ 54; 330a.

25

SUMF at ¶ 55.

26

Id. at ¶ 56.

27

Id. at ¶ 58; 332a-381a.

28

SUMF at ¶ 59.

29

Kelly-Pimentel v. State Civil Serv. Comm’n, No. 72 C.D. 2016, 2017 WL 429514, at * 2 (Pa.
Commw. Ct. Feb. 1, 2017); 866a-872a.
30

Id. at *6.

31

On February 16, 2016, the Honorable Mark R. Hornak granted Defendants’ motion to dismiss,
dismissing with prejudice the Title VII claim but granting Dr. Kelly-Pimentel leave to file an
amended complaint (ECF Doc. Nos. 12, 13).
Dr. Kelly-Pimentel filed an amended complaint, dropping the Department as a defendant, and
alleging violations of the First and Fourteenth Amendment under 42 U.S.C. § 1983, Title IX of
the Education Amendments of 1972 (20 U.S.C. § 1681) and Pennsylvania statute against
Secretary Wetzel, Executive Deputy Secretary Moore Smeal, and Director Davy in their
individual capacities (ECF Doc. No. 14). On August 29, 2016, after oral argument on
Defendants’ motion to dismiss the amended complaint, Judge Hornak entered an order
dismissing with prejudice the Title IX and §1983 First Amendment claims; dismissing without
prejudice the state statutory claims; and denying the motion to dismiss the § 1983 Fourteenth
Amendment equal protection race discrimination claim (ECF Doc. No. 28 (text order)).
32

Summary judgment is proper when “the movant shows that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute as to a material fact is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). On a motion for summary judgment, “we view the underlying facts and all
reasonable inferences therefrom in the light most favorable to the party opposing the motion.”
Mancini v. Northampton Cnty., 836 F.3d 308, 313 (3d Cir. 2016) (quoting Blunt v. Lower Merion
Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)). “The party seeking summary judgment ‘has the
burden of demonstrating that the evidentiary record presents no genuine issue of material fact.’”
Parkell v. Danberg, 833 F.3d 313, 323 (3d Cir. 2016) (quoting Willis v. UPMC Children’s Hosp.
of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015)). If the movant carries its burden, “the
23

nonmoving party must identify facts in the record that would enable them to make a sufficient
showing on essential elements of their care for which they have the burden of proof.” Willis, 808
F.3d at 643 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “If, after adequate time
for discovery, the nonmoving party has not met its burden, pursuant to Federal Rule of Civil
Procedure 56, the court must enter summary judgment against the nonmoving party.” Willis, 808
F.3d at 643 (citing Celotex Corp., 477 U.S. at 322-323).
33

Peloro v. United States, 488 F.3d 163, 174 (3d Cir. 2007).

34

Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir.1993) (citations omitted);
Allen v. McCurry, 449 U.S. 90, 96 (citing 28 U.S.C. § 1738).
35

Britt v. United Steel Workers of America Local 2367, 319 F.App’x 89, 90 (3d Cir. 2008)
(quoting Lance v. Dennis, 546 U.S. 459, 466 (2006)).
36

Hitchens v. Cty. of Montgomery, 98 F.App’x 106, 111 (3d Cir. 2004) (citing Greenleaf v.
Garlock, Inc., 174 F.3d 352, 357-358 (3d Cir. 1999). Similarly, federal collateral estoppel, or
issue preclusion, “prevents parties form relitigating an issue that has already been actually
litigated. The prerequisites for the application of issue preclusion are satisfied when: (1) the issue
sought to be precluded [is] the same as that involved in the prior action; (2) that issue [was]
actually litigated; (3) it [was]determined by a final and valid judgment; and (4) the determination
[was] essential to the prior judgment.” Peloro v. United States, 488 F.3d 163, 174-175 (3d Cir.
2007) (quoting Burlington N. R.R. Co. v. Hyundai Merch. Marine Co., 63 F.3d 1227-1231-32
(3d Cir. 1995) (internal quotations omitted)). Dr. Kelly-Pimentel’s brief in opposition to
Defendants’ motion for summary judgment analyzes Pennsylvania’s four factor test, but adds the
fourth factor from the federal test. Under either analysis, the outcome is the same.
37

71 P.S. § 741.951(b).

38

71 P.S. § 741.905a (emphasis added).

39

Price v. Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 411, n.4 (Pa.
Commw. Ct. 1996) (citing Pronko v. Dept. of Revenue, 539 A.2d 456 (Pa. Commw. Ct. 1988)).
40

401 U.S. 424 (1971).

41

560 A.2d 859 (Pa. Commw. Ct. 1989), appeal denied, 524 Pa. 633, 574 A.2d 73 (1990).

42

Brief at 5-6 (ECF Doc. No. 58).

43

Griggs, 401 U.S. at 431.

44

Id.

45

Id. at 432.

24

46

532 A.2d 315 (Pa. 1987).

47

411 U.S. 792 (1973); see Henderson, 560 A.2d at 863; Commonwealth Dep’t. of Health v.
Nwogwugwu, 594 A.2d 847, 849-850, n.5 (Pa. Commw. Ct. 1991).
48

Nwogwugwu, 594 A.2d at 850.

49

Id. (citing Henderson, 560 A.2d at 863).

50

Nwogwugwu (citing Henderson, 560 A.2d at 864).

51

Nwogwugwu (citing Snipas v. Dep’t. of Public Welfare, 405 A.2d 1366 (Pa. 1979).

52

Nwogwugwu, 594 A.2d at 850-851 (quoting Texas Dep’t. of Cmty. Affiairs v. Burdine, 450
U.S. 248, 256 (1981)).
53

Brief at 6 (ECF Doc. No. 58); 920a-924a.

54

928a-930a.

55

Brief at 6 (ECF Doc. No. 58).

56

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).

57

Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 273 (3d Cir. 2014) (quoting Andrews v. City
of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) (internal quotations omitted).
58

Amended Complaint at ¶ 3(a) (ECF Doc. No. 14). The parties do not address Dr. KellyPimentel’s allegation Defendants failed to “protect her from harassing and retaliatory conduct” in
their summary judgment briefing. The Commonwealth Court noted Dr. Kelly-Pimentel “briefly
mention[ed] retaliation in her brief, quoting testimony indicated that Davy was aware of a
grievance she filed against the Department for a separate matter. To the extent that Petitioner
now raises an argument that the Department retaliated against her for filing a grievance, that
argument was not raised before the Commission and, thus, is waived on appeal.” Kelly-Pimentel,
2017 WL 429514 at *6, n.13. Dr. Kelly-Pimentel does not mention or provide us with any
argument or evidence supporting a retaliation or harassment claim, and we consider it
abandoned.
59

Plaintiff’s response in opposition to Defendants’ motion for summary judgment at ¶ 5 (ECF
Doc. No. 56). Similarly, Dr. Kelly-Pimentel argues “[D]efendants failed to offer a legitimate
explanation for their conduct. Rather, the record is replete with illegal and illicit conduct. The
most glaring examples are failing to follow state teaching certification laws, falsifying
evaluations for the Staff Assistant position and ignoring credentials during the ranking for the
[Education Administration Manager Western Region] position.” Brief in opposition to summary
judgment at 9 (ECF Doc. No. 58).
25

60

332a.

61

380a.

62

Kelly-Pimentel, 2017 WL 429514 at * 6.

63

We take judicial notice of the Commonwealth Court’s docket sheet in Kelly-Pimentel v. State
Civil Service Commission, No. 72 C.D. 2016.
64

Id.

65

Brief at 6 (ECF Doc. No. 58).

66

Kelly-Pimentel, 2017 WL 429514 at *6.

67

372a. As discussed above, Nwogwugwu, is a 1991 opinion Commonwealth Court opinion
outlining the prima facie case for discrimination under Section 905.1 of the Act as previously set
out in the Commonwealth Court’s 1989 Henderson opinion.
68

372a-374a.

69

374a- 379a.

70

Brief at 7 (ECF Doc. No. 58). See n. 39, supra.

71

Id. at 6.

72

Id. at 7.

73

Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1074 (3d Cir. 1990); Ochner v. Stedman,
572 F.App’x 143, 148 (3d Cir. 2014); Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, No. 15499, 2016 WL 7232571, *4 (W.D. Pa. Dec. 14, 2016).
74

ECF Doc. No. 40.

75

ECF Doc. No. 41.

76

ECF Doc. No. 42.

77

ECF Doc. No. 44.

78

ECF Doc. Nos. 46, 47.

79

Brief at 7 (ECF Doc. No. 58).

80

Montana v. United States, 440 U.S. 147, 153 (1979).

81

Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 227 (3d Cir. 2015).
26

82

A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004);
Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016).
83

Brief at 8 (ECF Doc. No. 58).

84

Amended Complaint at ¶ 7.a. Dr. Kelly-Pimentel identifies the “Policy Statement” as a
February 26, 2014 memorandum issued by Secretary Wetzel. We cannot locate the February 26,
2014 memorandum in the record.
85

Rosa-Diaz v. Dow, No. 16-4349, 2017 WL 1097101, *3, n. 6 (3d Cir. Mar. 23, 2017) (quoting
Chavarriaga, 806 F.3d at 223).
86

887a.

87

Chavarriaga, 806 F.3d at 223 (citing Sample v. Diecks, 885 F.3d 1099, 1118 (3d Cir. 1989)).

88

See Plaintiff’s Response to SUMF at ¶ 40 (ECF Doc. No. 57).

89

Parkell, 833 F.3d at 330.

90

Brief at 9 (ECF Doc. No. 58). Dr. Kelly-Pimentel asserts she “has been passed over in two
promotions subsequent to the filing of this case.” Id. These allegations are not contained in the
Amended Complaint and are not material to resolution of this action.
91

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). See Rosa-Diaz, 2017 WL 1097101
at *3 (claim for supervisory liability under §1983 properly dismissed because plaintiff “premised
[claims] solely on the Supervisor Defendants’’ after-the-fact participation in reviewing
grievances or appeals, generally an insufficient basis to establish ‘personal knowledge’ for
purposes of § 1983”) (citing Rode, 845 F.2d at 1208)).
92

The Equal Protection Clause of the Fourteenth Amendment provides “[n]o state shall . . . deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV,
§1.
93

Hafer v. Melo, 502 U.S. 21, 25 (1991).

94

Hafer, 502 U.S. at 25 (quoting Kentucky v. Graham, 473 U.S. 159, 166 (1985)).

95

Antonelli v. New Jersey, 419 F.3d 267, 274 (3d Cir. 2005) (quoting City of Cuyahoga Falls v.
Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003)).
96

Brief at 9 (ECF Doc. No. 58). Dr. Kelly-Pimentel cites the burden-shifting analysis articulated
in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In Hicks, the Supreme Court further
elucidated its earlier decisions in Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)
and McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) which developed the framework
for the allocation of the burden of production and proof in Title VII discriminatory treatment
27

cases. Hicks, 590 U.S. 506. Dr. Kelly-Pimentel’s Amended Complaint articulates an equal
protection claim based on disparate treatment. See Amended Complaint at ¶ 3.a. (ECF Doc. No.
14).
97

Reply Brief at 1 (ECF Doc. No. 60).

98

Stewart v. Rutgers, The State University, 120 F.3d 426, 432 (3d Cir. 1997).

99

In their Reply Brief, Defendants argue Dr. Kelly-Pimentel did not establish even a prima facie
case of discrimination. Reply Brief at 2-4 (ECF Doc. No. 60). For purposes of the summary
judgment analysis, we will presume Dr. Kelly-Pimentel established a prima facie case of
discrimination, and focus on the second and third steps of the McDonnell Douglas framework.
100

Jones v. Se. Pa. Transp. Auth., 796 F/3d 323. 326 (3d Cir. 2015) (citing Fuentes v. Perskie, 32
F.3d 759, 763 (3d Cir. 1994)); Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003).
101

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing Hicks, 509 U.S. at 508-510).

102

Fuentes, 32 F.3d at 763 (citing Burdine, 450 U.S. at 253).

103

299a – 300a.

104

299a.

105

Id.

106

813a, 817a.

107

671a.

108

715a-716a.

109

Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (quoting Fuentes, 32 F.3d at 764).

110

Id. (internal quotations and citations omitted).

111
112

Plaintiff’s Response to SUMF at ¶ 10 (ECF Doc. No. 57).
Id. at ¶ 38.

113

A reading of the ranking memo shows work experience and other factors are discussed for
each candidate. 299a-300a.
114

912a-916a.

115

Compare 317a-318a with 912a-916a.
28

116

SUMF at ¶ 44 (ECF Doc. No. 53).

117

Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130–31 (3d Cir.1995).
118

Celotex, 477 U.S. at 324.

119

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

120

Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d Cir.1990); see also Quiroga v.
Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (party opposing summary judgment must present
more than just ‘mere allegations, general denials, or ... vague statements to show the existence of
a genuine issue); Fed.R.Civ.P. 56(e) (requiring nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial.”)

29