Burdine, 450 U.S. at 256; Lewis, 725 F.2d at 915. Under this burden, plaintiff must show that "but for" her sex, she would have been promoted. Lewis, 725 F.2d at 915-17.
10. A plaintiff cannot carry her burden of proving that defendants' proffered reason is pretextual by merely showing that the defendants were mistaken in their decision. Hankins v. Temple University, 829 F.2d 437, 443 (3d Cir. 1987). Similarly, this court is not in the business of reviewing the wisdom or reasonableness of defendants' articulated reason. Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986) ("Court does not sit as a super-personnel department that reexamines an entity's business decisions . . . . The question is not whether the [employer] exercised prudent business judgment."); Tozzi v. Union Railroad Co., 722 F.Supp. 1236, 1241 (W.D. Pa. 1989) (". . . plaintiff cannot create an issue for the jury simply by challenging defendant's business judgment."). Rather, the appropriate inquiry is whether the articulated reason is a pretext for sex discrimination.
11. Plaintiff failed to show that defendants' articulated reason for not promoting her was a pretext for sex discrimination. There is no evidence to indicate that the stated qualifications for the position of manager of employee services were inappropriate. To the contrary, plaintiff's witness, Floyd Greer, PAT's salary administrator, testified that the qualifications as stated in the job analysis questionnaire and related job description were fair and appropriate. In addition, the evidence indicates that Lutheran was at least as qualified for the position of manager of employee services because, in addition to meeting the other requirements for the position, Lutheran had a four-year degree and experience in the training function and with the employee assistance program, which plaintiff did not. Instead, plaintiff asserts that Tipton promoted Lutheran because of their personal relationship or cronyism. Even were that the reason, such favoritism does not violate Title VII. See e.g., Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990); Benzies v. Ill. Dept. of Mental Health & Developmental Disabilities, 810 F.2d 146 (7th Cir. 1987), cert. denied, 483 U.S. 1006, 97 L. Ed. 2d 737, 107 S. Ct. 3231 (1987); Hill v. Bethlehem Steel Corp., 1989 U.S. Dist. LEXIS 6368 (E.D. Pa. 1989).
12. Plaintiff's sex was not a factor considered by John Tipton in deciding to promote Lutheran to the position of manager of employee services.
Promotion-Disparate Impact Theory
13. In order to establish a prima facie case of disparate impact discrimination, a plaintiff is required to demonstrate that application of a specific identifiable employment practice or policy caused a significant disparate impact on a protected group. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656, 109 S. Ct. 2115, 2124, 104 L. Ed. 2d 733 (1989); Newark Branch, National Association for the Advancement of Colored People v. Town of Harrison, New Jersey, 940 F.2d 792, 798 (3d Cir. 1991).
14. "Disparate impact cases, because of their emphasis on consequences, necessarily require a focus on statistical evidence." Newark Branch, NAACP, 940 F.2d at 798 (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 987, 108 S. Ct. 2777, 2784, 101 L. Ed. 2d 827 (1988)); Gilty v. Village of Oak Park, 919 F.2d 1247, 1254 (7th Cir. 1990); B. Schlei & P. Grossman, Employment Discrimination Law 1131 (2d. ed. 1983) ("Statistical proof is the very core of evidence in adverse impact cases because relevant assessments and comparisons must be expressed in numerical terms").
15. Therefore, the plaintiff must identify a specific employment practice that has a significantly disparate impact on employment opportunities for the protected classification in question. Civil Rights Act of 1991, P.L. 102-166, § 105(a), 105 Stat. at 1074; Wards Cove, 490 U.S. at 656, 109 S. Ct. at 2125 ("'the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities'"); Garland v. USAir, Inc., 767 F. Supp. 715, 726 (W.D. Pa. 1991).
16. As an integral part of her prima facie case, a plaintiff in a disparate impact must also establish a causal connection between the specific employment practice that she challenges and the disparate impact. Civil Rights Act of 1991, P.L. 102-166, § 105(a), 105 Stat. at 1074; Wards Cove, 490 U.S. at 656, 109 S. Ct. 2124, 104 L. Ed. 2d 733 ; Ortega v. Safeway Stores, 943 F.2d 1230, 1245-46 (10th Cir. 1991); Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 912 (4th Cir. 1989); Mack v. Great Atlantic and Pacific Tea Company, Inc., 871 F.2d 179, 184 (1st Cir. 1989).
17. Underrepresentation statistics alone cannot make out a prima facie case of disparate impact. Wards Cove, 490 U.S. at 656-57, 109 S. Ct. at 2124-25; Ortega, 943 F.2d at 1245; Gilty, 919 F.2d at 1254; Mallory, 882 F.2d at 912; Mack, 871 F.2d at 184; Cox v. City of Chicago, 868 F.2d 217, 222-23 (7th Cir. 1989); Frazier v. Consolidated Rail Corp., 271 U.S. App. D.C. 220, 851 F.2d 1447, 1452 (D.C. Cir. 1988); Metrocare v. Washington Metropolitan Area Transit Authority, 220 U.S. App. D.C. 104, 679 F.2d 922, 930 (D.C. Cir. 1982).
18. Similarly, a racial imbalance in one segment of an employer's work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer's other positions. Wards Cove, 490 U.S. at 653, 109 S. Ct. at 2122-23.
19. Instead, a comparison between the composition of those qualified persons in the relevant labor market and that of those in the jobs at issue typically "forms the proper basis for the critical inquiry in a disparate impact case." Newark Branch, NAACP, 940 F.2d at 748 (quoting Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. at 650, 109 S. Ct. at 2121).
20. In promotion cases, the required comparison is between those employees actually promoted and the qualified pool of employees presumptively eligible for promotion. Mallory, 882 F.2d at 912; Pouncy v. Prudential Insurance Company of America, 668 F.2d at 795, 893 (5th Cir. 1982).
21. When the job in question requires managerial capability or other expertise, the comparison group must be the set of available persons with that expertise or qualification. Hazelwood School District v. United States, 433 U.S. 299, 308 n.13, 97 S. Ct. 2736, 2742 n.13, 53 L. Ed. 2d 768 (1977); Cox, 868 F.2d at 221; Metrocare, 679 F.2d at 930.
22. Where a company is shown to promote from within, the relevant labor pool of qualified applicants for upper level positions is the group of employees in the company from which promotees will be drawn. Shidaker v. Tisch, 833 F.2d 627, 632 (7th Cir. 1986); cert. denied, 487 U.S. 1234, 108 S. Ct. 2900, 101 L. Ed. 2d 933 (1988); Paxton v. Union National Bank, 688 F.2d 552, 564 (8th Cir. 1982), cert. denied, 460 U.S. 1083, 103 S. Ct. 1772, 76 L. Ed. 2d 345 (1983); Fisher v. Procter & Gamble Manufacturing Co., 613 F.2d 527, 544 (5th Cir. 1980), cert. denied, 449 U.S. 1115, 101 S. Ct. 929, 66 L. Ed. 2d 845 (1981); Schlei & Grossman, at 192 (1987-89 Supp.).
23. When a plaintiff brings a disparate impact case individually rather than on behalf of a class, the plaintiff must also establish that she was a "qualified" applicant and must establish that her individual circumstances entitle her to relief. Ortega, 943 F.2d at 1245-46; Gilty, 919 F.2d at 1255; Mack, 871 F.2d at 184. As discussed earlier, the plaintiff has established that she was "qualified" for the job that went to Lutheran.
24. The Pittsburgh SMSA used by plaintiff's statistical expert is an improper indicator of the available labor pool of promotable employees in the present case. Equal Employment Opportunity Commission v. Radiator Specialty Co., 610 F.2d 178, 186-87 (4th Cir. 1979); Equal Employment Opportunity Commission v. North Hills Passavant Hospital, 466 F. Supp. 783, 795-96 (W.D. Pa. 1979); see also Equal Employment Opportunity Commission v. Olson's Dairy Queens, Inc., 57 Empl. Prac. Dec. (CCH) P 41,120, at 69,988 (S.D. Tex. 1991); Schlei & Grossman, at 1361-62 ("the objective in determining the geographic scope is to define the area from which applicants are likely to come absent discrimination").
25. Plaintiff has failed to produce any valid statistical comparison between PAT's managerial employees and qualified applicants in PAT's work force.
26. Plaintiff has failed to identify a specific employment practice of the defendant that has a significant disparate impact on employment opportunities for women.
27. Plaintiff did not produce any evidence of a causal connection between her failure to receive the promotion and the specific employment practices being challenged, namely, the failure to post positions and this link would be particularly difficult to establish in this case given that she was, in fact, considered for the position by John Tipton.
28. Thus, Plaintiff has failed to establish a prima facie case of disparate impact based on sex.
29. Section 704(A) of Title VII, 42 U.S.C. § 2000e-3(a), makes it unlawful for an employer to discriminate against an employee because the employee has filed a charge of discrimination.
30. In order to establish a prima facie case of retaliation under Title VII, plaintiff must establish that (1) she engaged in protected activity, (2) suffered some adverse employment action, and (3) a causal connection between (1) and (2). Miller v. Aluminum Co. of America, 679 F. Supp. 495, 504 (W.D. Pa.), aff'd without op. 856 F.2d 1984 (3d Cir. 1988).
31. Once a plaintiff has made out a prima facie case of retaliation, the employer has the burden of articulating a legitimate, non-discriminatory reason for its action. The plaintiff must then prove that the articulated reason is pretextual. Wendell v. Small Tube Products, Inc., 799 F.2d 69, 73 (3d Cir. 1986); Kinnally v. Bell of Pennsylvania, 748 F. Supp. 1136, 1143 (E.D. Pa. 1990).
32. The court concludes that plaintiff failed to establish a prima facie case of retaliation because she did not establish a causal connection between the filing of the discrimination charge and her subsequent discipline and eventual discharge from employment. Plaintiff failed to demonstrate that Radkoff was ever made aware of the fact that plaintiff had filed an EEOC charge. Radkoff was not named as respondent in any charge, and it is not disputed that Radkoff initiated the discharge of plaintiff.
33. Even if plaintiff had established a prima facie case of retaliation, she has failed to prove that PAT's reasons for disciplining or discharging her were pretextual. The evidence demonstrates that plaintiff was disciplined for legitimate, non-discriminatory reasons and eventually discharged for her repeated acts of insubordination directed to Lutheran and Radkoff, particularly her statement to Radkoff that she would never work with Radkoff due to her management philosophy and her personal lifestyle. Such misconduct is not protected under Section 704(a) of Title VII, 42 U.S.C. § 2000e-3(a). See e.g.: Jackson v. St. Joseph State Hospital, 840 F.2d 1387, 1391 (8th Cir. 1988), cert. denied, 488 U.S. 892, 102 L. Ed. 2d 218, 109 S. Ct. 228 (1988); Garvey v. Dickinson College, 775 F. Supp. 788 (M.D. Pa. 1991); Matthews v. Capital Cities/ABC, Inc., 54 FEP Cases 605 (D.C. N.C. 1990); Floyd v. Kellogg Sales Co., 47 FEP Cases 1203, 1210-1211 (D.C. Minn. 1987); and Cyrus v. F. W. Woolworth Co., 677 F. Supp. 323 (E.D. Pa. 1986).
34. There is no credible evidence that Radkoff and Lutheran, the managers responsible for disciplining and discharging plaintiff for insubordination, considered plaintiff's filings with the EEOC when making their decisions.
35. Judgment will be entered on all counts against plaintiff and in favor of defendants PAT, Lutheran and Radkoff.
An appropriate order will follow.
Date: July 31, 1992
Timothy K. Lewis
United States District Judge
AND NOW, this 31st day of July, 1992, upon consideration of a non-jury trial in the above-captioned case,
IT IS HEREBY ORDERED that the court finds for the defendants the Port Authority of Allegheny County, Larry Lutheran and Kathleen Radkoff. Judgment shall be and hereby is entered in favor of those defendants and against plaintiff Elaine Savko.
Timothy K. Lewis
United States District Judge