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United States District Court, Eastern District of Pennsylvania

March 25, 1999


The opinion of the court was delivered by: Pollak, District Judge.


This is an employment discrimination case against a university in which plaintiff alleges causes of action under both Title VII and 42 U.S.C. § 1981. Presently before this court is defendant's motion for summary judgment.


The facts — viewed in the light most favorable to Meachum — may be summarized as follows. Daniel Meachum, an African American male, was hired by Temple as Associate University Counsel in August 1989. In his nearly six years as Associate University Counsel, Meachum was the in-house counsel chiefly responsible for litigation. His litigation duties included representation of the university in state and federal courts and supervisory responsibility for cases being litigated by outside counsel. While his work concentrated on litigation, he also wrote university policies, attended board of trustee meetings, and advised executive officers of the university on legal matters. During his employment, Meachum consistently received meritbased pay increases of 3.8% or more. The University Counsel, George Moore, never informed Meachum that his work was deficient or gave him a negative review.

Meachum was fired on June 9, 1995. His termination letter did not give reasons for the firing. He was subsequently informed by Moore, his supervisor, that Moore had decided to eliminate Meachum's position in order to transfer litigation responsibilities to outside counsel as part of a university-wide reduction in the number of employees. Though Moore could have chosen to terminate the employment of any of the other Associate University Counsel — none of whom were African American, and four of whom had less seniority than Meachum — Moore chose to eliminate Meachum. The cases on which Meachum was then working were reassigned either to Moore himself or to outside counsel with support from the office of the University Counsel.


Summary judgment may be entered if "the pleadings, deposition, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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(c). "An issue is `genuine' only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).


Temple claims that summary judgment on the Title VII claim is justified for two independent reasons: (1) Meachum has failed to demonstrate the existence of a prima facie case; and (2) assuming that Meachum has demonstrated the existence of a prima facie case, Meachum has not carried his burden of casting reasonable doubt on the legitimate non-discriminatory explanations for the employment decision that Temple has averred.


"In a Title VII case such as this one involving a reduction in force, in order to make out a prima facie case the plaintiff must show that (1) she belonged to a protected class, (2) she was qualified for the position from which she was terminated, (3) she was terminated and (4) persons outside of the protected class were retained." In Re Carnegie Center Associates, 129 F.3d 290, 294-95 (3d Cir. 1997) (citing Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)). Temple admits that Meachum is a member of a protected class and was discharged. Further, it acknowledges, albeit "solely for the prima facie case portion of the analysis," that Meachum was qualified for the position. Def.Br. at 27 n. 20. Defendant claims that, because Moore "transferred [Meachum's] active case load to other African-American attorneys," Meachum cannot satisfy the fourth prong of the prima facie case. Def.Br. at 27. The "other African-American attorneys" to whom defendant refers are two attorneys who work for law firms that Temple has retained to assist it with litigation matters.

In essence, Temple claims that this case should be governed not by the prima facie case requirements that apply to reductions in force, but to the prima facie test requirements that apply when an employee is fired and then replaced by another employee. In the latter situation,

  a Title VII plaintiff must show (1) that she is a
  member of a protected class, (2) she was qualified
  for the position, (3) she was discharged, and (4) the
  position was ultimately filled by a person not of the
  protected class.

Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1066 n. 5 (3d Cir. 1996).*fn1

While it appears that the University Counsel transferred some of Meachum's casework to outside counsel employing African American attorneys, it is not clear why a transfer of work should be deemed to constitute a replacement of the employee, and should therefore make appropriate the use of the `firing-and-hiring' prima facie case, rather than the `reduction in force' prima facie case. Defense counsel has not pointed to any case that has held that an employer's termination of an employee followed by a transfer of the former employee's work to an outside contractor should be read as replacement of that employee. Nor has this court found such a case.*fn1

Because this appears to be a question of first impression*fn2, it is appropriate to assess the defendant's contention in light of the purpose that underlies the requirement that a plaintiff come foreword with a prima facie case. "The prima facie case," the Supreme Court has found, "serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). An employer who has declined to hire an applicant for employment but has subsequently hired a member of the applicant's protected class defeats the applicant's claim because the employer is deemed to have demonstrated that the applicant was rejected for reasons unrelated to the applicant's membership in the protected class.

I am not persuaded, however, that outsourcing the work of an employee to contractors of the same race conclusively demonstrates that the employee was rejected for reasons unrelated to his race. It is not wholly implausible to posit a scenario in which an employer discharges an employee for reasons in which race plays a part, and transfers duties previously assumed by that employee to an independent contractor of the same race who is external to the work place. I thus find that, even where an employer discharges an employee who belongs to a protected class and subsequently contracts with an external contractor who is a member of the same protected class to perform the former employee's duties, a reduction-in-force claim is properly analyzed under the prima facie case standard articulated in In Re Carnegie Center Associates.

As noted above, the teaching of In re Carnegie Center Associates is that, to establish a prima facie case in a reduction-in-force setting, a plaintiff must show that, concurrent with his discharge from a position for which he was qualified, "persons outside of the protected class were retained." 129 F.3d at 295. One makes that showing by demonstrating that one "was laid off from a job for which he was qualified while others not in the protected class were treated more favorably." Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir. 1983). Meachum has accomplished this by alleging (what, at least at this stage, has not been controverted) that several other Associate University Counsel — all of whom were white — were not discharged. Four of those who were not discharged had less seniority than Meachum, making it appear that they "were treated more favorably" than Meachum.

Temple argues that it is incorrect to characterize the other Associate University Counsel as having been treated more favorably, because Meachum's job was not the same as the other Associate University Counsel. While the other Associate University Counsel "[a]ll had significant and daily counseling responsibilities," Temple contends, "[p]laintiff did not." Def.Br. at 30. Meachum contests this bifurcated characterization, pointing to his counseling of several university divisions and his various transactional tasks. Pl.Br. at 9-10 (citing Temple Ex. C at 128-49).

Employees in professional or executive positions may be more likely than their counterparts in blue-collar positions to occupy positions that, though similar in title and job description, become differentiated due to the skills and talents of the individual employees.*fn3 The role of a court at this threshold stage of analysis is not to determine the subtle ways in which plaintiff's professional position may have differed from the positions of other attorneys with the same title working in the same office. Because the plaintiff's burden in establishing a prima facie case is not "onerous," Burdine, 450 U.S. at 253, 101 S.Ct. 1089, I find that Meachum has satisfied his prima facie burden of coming foreword with evidence suggesting that the individuals whom Temple chose to retain — all of whom were attorneys and all of whom had the title "Associate University Counsel" — were "treated more favorably" than Meachum. Meachum has thus established his prima facie case.


Once "the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant `to articulate some legitimate, non-discriminatory reason'" for the adverse employment decision. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). In order to satisfy its burden of production, the defendant need only "introduc[e] evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

Temple has articulated two legitimate, nondiscriminatory reasons for its decision to discharge Meachum. First, it contends that Moore believed that Meachum's job performance had "deteriorated" so far "that it was having a detrimental effect on the image and morale of the [office of the University Counsel] and [Temple] University and was raising the real possibility that more severe sanctions and default judgments would be entered against Temple." Def.Br. at 32-33. Second, Temple contends that "Moore also believed that by out-sourcing plaintiff's litigation responsibilities he could achieve a smooth-functioning, more cost-efficient litigation management system." Def.Br. at 33. Meachum does not contest that Temple has satisfied its burden of articulating legitimate nondiscriminatory reasons for his discharge.


The burden thus shifts again to Meachum. "[T]o defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff 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 than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764. Meachum has not produced any independent evidence of discrimination, but presents several ripostes to Temple's articulated nondiscriminatory explanations.

Meachum makes three arguments that he believes cast doubt on Temple's claim that Meachum performed his duties at a level below that of his peers. First, he asserts that the University has not presented documentation supporting its claim. Second, Meachum asserts that he consistently received merit raises at or near the maximum permissible amount. See Meachum Aff. ¶ 24. Third, he argues that Moore's experience as a manager of attorneys makes it highly unlikely that Moore would have permitted Meachum to practice what Moore considered substandard lawyering for the length of time that Moore claims to have been dissatisfied without ever reprimanding Meachum or suggesting ways in which Meachum could improve.

Meachum's second argument presents a reason why a factfinder might reasonably disbelieve Temple's asserted nondiscriminatory reason for the firing. Assuming that, as alleged, Moore consistently authorized merit pay increases for Meachum, the award of pay increases apparently keyed to meritorious performance would seem to be in tension with Temple's assertion that Meachum was performing his job in a manner below Moore's expectations. While it may be that Temple will present evidence at trial diminishing the impact of the evidence of Meachum's merit pay increases — e.g., evidence that other employees in the office regularly received even higher merit pay increases — Meachum has satisfied his burden of coming foreword with evidence casting doubt on Temple's assertion that Meachum's poor performance triggered his release.*fn4

It is not enough, however, that Meachum has discredited one of Temple's proffered explanations for his firing. "[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered nondiscriminatory reasons" was pretextual. Fuentes, 32 F.3d at 764 (emphasis in original). Meachum must also cast sufficient doubt on Temple's second proffered nondiscriminatory reason for terminating him — that the office of the University Counsel could be made more efficient by outsourcing litigation, and that given the outsourcing there was no longer a job for Meachum*fn5 — for a factfinder reasonably to infer that the proffer is pretextual. The question is "whether the reorganization was an attempt to conceal discrimination." Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir. 1995).

Temple's second proffer asserts that outsourcing litigation would make the office more efficient and that, in Moore's view, it made more sense to eliminate Meachum's job than to reassign Meachum to non-litigation duties.*fn6 Meachum argues that several of Moore's omissions cast doubt on the assertion that outsourcing litigation would make the office more efficient. He notes that Moore — an experienced attorney and administrator — did not determine in advance what, if any, savings would be realized by outsourcing litigation; Moore did not undertake a cost study, for instance, or prepare a report. Moreover, Meachum points out, Moore did not discuss potential arrangements with outside counsel before firing Meachum. Taken together, those facts paint a picture that a reasonable factfinder could, arguably, read to suggest pretext.

Meachum has thus presented some evidence that would allow a factfinder reasonably to infer that both of the employer's proffered legitimate reasons for his firing were pretextual.

In sum, summary judgment on Meachum's Title VII claim is inappropriate.


Temple argues that Meachum does not have a valid claim under 42 U.S.C. § 1981 for three reasons: (1) Meachum has adduced no evidence showing that Temple maintained a "custom or policy" of discrimination; (2) 42 U.S.C. § 1981 does not provide an independent cause of action against a state actor;*fn7 and (3) Meachum did not satisfy the threshold requirement of a contractual relationship with the defendant.

Meachum does not contest the requirement of a showing of "custom or policy," but argues that "Moore's decision to terminate plaintiff constituted a specific and one-time decision by a `final policymaker' based upon racially discriminatory motives." Pl.Br. at 33. In making that argument, Meachum relies on Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), which held that a decision by a single government policymaker on a single occasion could, under appropriate circumstances, constitute government policy. The Third Circuit has determined that a plaintiff alleging a violation of 42 U.S.C. § 1983 "must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). "In determining whether an official holds such policymaking authority, courts are to consider whether an official has `final, unreviewable discretion to make a decision or take an action.'" Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 269 n. 16 (3d Cir. 1995) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990)).

Temple University Policy Statement I-29 (June 1, 1995), signed by President Peter J. Liacouras, states that "[f]inal administrative decisions involving the layoff of specific personnel within administrative units . . . will be approved by the senior officer (EVP, Provost, SrVP-HSC) with whom the final appeal is also lodged." Id. at ¶ 1. Temple asserts that Moore "needed the University's review and approval" and points to several pieces of deposition testimony corroborating this assertion.*fn8 Meachum argues that the review conducted by the individuals vested with final decision making power was not "meaningful," Pl.Br. at 25, 34, and that "they did not make any attempt to evaluate the decision to layoff [sic] Mr. Meachum as opposed to laying off one of the other attorneys," id. at 23; see also id. at 21-25, 33. Meachum has not explained, however, why the degree of meaningfulness of the review is relevant. As Justice Brennan wrote in Pembaur, "[m]unicipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered." 475 U.S. at 481, 106 S.Ct. 1292. Meachum has not argued that Moore had "final authority to establish" a university policy of racially discriminatory layoffs. Viewed in the light most favorable to plaintiff, the record does not reveal evidence sufficient for a factfinder reasonably to conclude that Moore was a "final policymaker." Temple is therefore entitled to summary judgment on Meachum's claims arising under § 1981.*fn9


For the foregoing reasons, defendant's motion for summary judgment is granted in part in an order accompanying this memorandum.*fn10


For the reasons set forth in the accompanying memorandum, defendant's motion for summary judgment is DENIED as to plaintiff's Title VII claims and GRANTED as to plaintiff's claims under 42 U.S.C. § 1981.

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