Because Hopson has failed to satisfy this threshold requirement, the claim must be dismissed. Dollar Bank's Motion for Summary Judgment is, therefore, granted insofar as it seeks the dismissal of Counts XIV and XV. Given this disposition, I need not address Dollar Bank's other arguments in support of dismissal.
(C) Counts XI and XIII - Race Discrimination
Finally, Dollar Bank challenges Hopson's claims asserted in Counts XI and XIII for race discrimination, in violation of Title VII and the PHRA. Hopson contends that he "applied for a position at Dollar Bank as a Data Processing Officer on August 19, 1993, a position which he was qualified to fill," and that, after rejecting Hopson's candidacy, Dollar Bank ultimately hired Jim Noel, a Caucasian, who had not previously been employed by Dollar Bank. See Amended Complaint, PP 121-126. Hopson further alleges that Dollar Bank had routinely rehired Caucasian employees.
Dollar Bank does not dispute that Hopson has established a prima facie case of race discrimination under the McDonnell Douglas standard articulated above. See Docket No. 23, p. 16. As such, the burden shifts to Dollar Bank to articulate a legitimate, nondiscriminatory reason for not rehiring Hopson. Dollar Bank contends that Hopson's former position was eliminated as a result of a reorganization process. Hopson's and Tassone's responsibilities were collapsed into one position. See Pratt Dep., Vol. II, p. 48; and Roos Dep., Vol. II, p. 23.
The burden consequently shifts back to Hopson to demonstrate that the articulated reason is a mere pretext for discrimination. Hopson claims that pretext is evident in that the reorganization of the department occurred on paper only, and that the alleged reorganization occurred only after Hopson communicated his interest in returning. As to the latter allegation, the record supports Hopson's contentions that the reorganization was purportedly accomplished in mid-September, after he expressed a desire to return. As to the former allegation, Hopson identifies evidence in the record suggesting that certain of Tassone's responsibilities were shifted to other positions, and were not incorporated in to the new "collapsed" position. See Pratt Dep., Vol. II, pp. 37, 45-46 (i.e., Ramsey no longer reported to Tassone's former position; and budget responsibilities were eliminated from Tassone's old job, as were management responsibilities for the liaison department). The new position, Hopson reasons, only incorporated his old job responsibilities.
Finally, Hopson has come forward with evidence that Caucasian employees who left Dollar Bank's employ, were rehired several months later. For instance, both Wayne Pogany, who had reported to Hopson, and Dave Yoho, were both rehired at Dollar Bank. See Hopson Dep., p. 17-19.
I believe that a jury could reasonably find, when considering this evidence in full context, that Dollar Bank's explanation for not rehiring Hopson is mere pretext. Accordingly, Counts XI and XIII do not merit dismissal, and Dollar Bank's Motion for Summary Judgment is denied in this regard.
ORDER OF COURT
AND NOW, this 14th day of October, 1997, after careful consideration of the submissions of the parties and for the reasons set forth in the Opinion accompanying this Order, it is hereby ORDERED that Dollar Bank's Motion for Summary Judgment (Docket # : 24) is GRANTED insofar as the claims asserted in Counts I, II, III, IV, V, VI, VII, VIII, X, XII, XIV and XV are DISMISSED, with prejudice. The Motion is DENIED, however, insofar as it seeks the dismissal of Counts IX, XI and XIII, setting forth claims of constructive discharge on the basis of sex, in violation of Title VII; and of failure to hire on the basis of race discrimination, in violation of Title VII and the PHRA.
BY THE COURT:
Donetta W. Ambrose,
U. S. District Judge