bathroom. Martin alleges that shortly after the drug testing was
relocated to another bathroom, Trang Rioux, a recruiter for
Allegheny, commented to another person when Martin and Lindsay
walked by, that they were the reason "why we have to go all the
way down to the other end of the building now to use the
bathroom" to conduct drug testing. (Martin Dep. at 82-83.)
Martin claims that she repeated Rioux's comment to a group that
was present in the Accounts Payable office, which included
McMasters. (Id. at 151-52.) However, she also testified that
she did not want or expect McMasters to speak with Rioux about
the comment, and McMasters did nothing wrong if he did not speak
with Rioux. (Id. at 152.) On other occasion, Martin overheard
Rioux remark, "oh, there's the real image of excellence" as
Martin walked by. (Id. at 157-58.) It is undisputed that Rioux
could not hire or fire Martin and had no authority to alter the
terms of her employment.
After Kreider became the Accounts Payable Supervisor, Martin
moved into the treasury analyst office effective September 13,
1997. Martin's last day at Allegheny was November 20, 1997.
Martin testified that she was not discharged or asked to resign,
but chose to resign on her own accord. (Id. at 163.)
Martin filed the instant action claiming essentially three
violations of the ADA in her single count complaint.*fn2 She
alleges: (1) she was not given the Accounts Supervisor Position
because of her disability; (2) she was subject to a hostile work
environment based on her disability; and (3) she was
constructively discharged because of the hostile work
environment of which she was subject. Allegheny has moved for
summary judgment on all three of these claims.
II. Legal Standard
Federal Rule of Civil Procedure 56 provides that summary
judgment is proper when "the pleadings, depositions, 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." A factual dispute is "material" if
it might affect the outcome of the suit under the applicable
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is
"genuine" only if there is a sufficient evidentiary basis which
would allow a reasonable fact-finder to return a verdict for the
non-moving party. See id. at 249, 106 S.Ct. 2505. The court
must resolve all doubts as to the existence of a genuine issue
of material fact in favor of the non-moving party. See White v.
Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the
non-moving party may not simply sit back and rest on the
allegations in her complaint; instead, she must "go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, and
designate specific facts showing that there is a genuine issue
for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotations omitted).
Summary judgment should be granted where a party "fails to make
a showing sufficient to establish the existence of an element
essential to that party's case and on which that party will bear
the burden at trial." Id.
The court will first examine Martin's failure to promote
claim. Next, the court will consider her hostile work
environment claim. And finally, her constructive discharge claim
will be examined.
A. Failure to Promote Martin to Accounts Payable
Martin's claim that she was not awarded the promotion to
Accounts Payable Supervisor is properly analyzed under the
well-established McDonnell Douglas burden-shifting framework.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct.
1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs
v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207
(1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113
S.Ct. 2742, 125 L.Ed.2d 407 (1993).*fn3 The burden-shifting
analysis of McDonnell Douglas requires the court to undertake
a three-step process in evaluating a motion for summary
judgment: First, the plaintiff must establish a prima facie
case of employment discrimination. See St. Mary's Honor Ctr.,
509 U.S. at 506-07, 113 S.Ct. 2742. The elements of a prima
facie case of disability discrimination under the ADA for
failure to promote are: (1) plaintiff is disabled as defined by
the statute; (2) plaintiff was qualified for the job for which
the employer was seeking applicants; (3) that, despite her
qualifications, she was rejected; and (4) that, after her
rejection, the position remained open and the employer continued
to seek applicants from persons of complainant's qualifications.
See Deane v. Pocono Med. Ctr., 142 F.3d 138, 142 (3d Cir.
1998) (en banc); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994).*fn4 A successful prima facie case creates a
presumption of discrimination and triggers the second step of
the burden-shifting analysis, in which the employer must rebut
the presumption of discrimination by demonstrating legitimate,
nondiscriminatory reasons for the employment decision. See St.
Mary's Honor Ctr., 509 U.S. at 506-07, 113 S.Ct. 2742. Finally,
once the employer proffers nondiscriminatory reasons for its
actions, the burden, now an ultimate one, shifts back to the
plaintiff for the final step in the analysis. See id. at 507,
113 S.Ct. 2742. To avoid summary judgment, the plaintiff must
rebut the employer's proffered reasons and show that they are
mere pretexts for discrimination. See id.
Allegheny argues that Martin: (1) does not meet her prima
facie case because she was not qualified for the Accounts
Payable Supervisor position; and (2) even if she does satisfy
her prima facie case, she does not offer evidence to
demonstrate that Allegheny's proffered reasons for not giving
her the position were pretextual.
1. Prima Facie Case
For the sake of the instant motion, Allegheny does not dispute
that Martin's "probable multiple sclerosis" diagnosis qualifies
as a disability under the ADA.*fn5
Allegheny also does not dispute that Martin was rejected for the
Accounts Payable Supervisor position, nor that Kreider, who is
not disabled, was given the position. Therefore, the only
dispute concerns whether Martin was qualified for the position.
The ADA defines the term "qualified individual" as an
individual "who, with or without reasonable accommodation, can
perform the essential functions of the employment position that
such individual holds or desires." 42 U.S.C. § 12111(8). The
Interpretive Guidance to the EEOC Regulations divides this
inquiry into two prongs. First, a court must determine whether
the individual satisfies the requisite skill, experience,
education and other job-related requirements of the employment
position that such individual holds or desires. See 29 C.F.R.
pt. 1630, app. § 1630.2(m). Second, it must determine whether
the individual, with or without reasonable accommodation, can
perform the essential functions of the position held or sought.
See id.; see also Deane, 142 F.3d at 145. Allegheny does not
allege that Martin's disability was the cause of her inability
to perform the Accounts Payable Supervisor job, as in the second
prong, but that she lacked the skill, experience, and other
job-related requirements of the position. Therefore, the court
need only consider the first prong of the "qualified individual"
Allegheny asserts that Martin was not qualified for the
supervisory position of Accounts Payable Supervisor primarily
because she does not have the necessary interpersonal skills to
do the job and displays a negative attitude toward the
company.*fn6 (See Defendant's Reply at 6 n. 7.) To
substantiate this assertion, Allegheny asserts that the three
decision-makers who decided not to give the promotion to Martin,
namely Tucci, Strohm, and McMasters were aware of her
interpersonal skills problem, and for this reason did not give
her the promotion. Allegheny also points to employee reviews of
Martin, at least one written by McMasters, that gave Martin her
lowest marks in areas such as interpersonal skills. He warned
her of her "need to develop a kinder, gentler attitude towards
the workplace," and that she "needs to work on tactfulness."
Martin admits that based on these various performance
evaluations she was aware that Allegheny or its managers had
concerns about her interpersonal skills. Allegheny also evinced
evidence that McMasters and Strohm received complaints about
Martin's interpersonal skills problems from other employees.
Martin challenges the assertion that her interpersonal skills
make her unqualified for the Accounts Payable Supervisor
position. She argues that one of the managers, Jim Eppley,
testified that she often displayed a positive attitude, she
interacted well in relation to him, and compared to other
employees Martin was "even-keel." Martin also argues that
Allegheny did not have any concrete grounds used for determining
who was promoted to Accounts Payable Supervisor, but that it was
primarily the discretion of Strohm. (Strohm Dep. at 13.)
The court is inclined to agree that, even in the context of a
supervisory position, the attributes of interpersonal skills and
a positive attitude are too subjective criteria to be used in
determining whether an employee is qualified. "[W]hile a court
may consider objective job qualifications in
evaluating the prima facie case, a subjective qualification
`such as leadership or management skill is better left to
consideration of whether the employer's nondiscriminatory reason
for the discharge is pretext.'" Volk v. Pribonic, Civ. A. No.
94-2165, 1996 WL 230103, at *5 (W.D.Pa. Jan. 16, 1996) (quoting
Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir.
1995)). Accordingly, Martin's alleged poor interpersonal skills
should not be considered in evaluating her prima facie case,
but will be discussed in the pretext section, supra. See
Nicholls v. Wildon Industries, Inc., No.C.A. 98-6697, 1999 WL
1211656, at *5 (E.D.Pa. Dec. 10, 1999) (citing Volk, 1996 WL
230103, at *5). The court is not convinced that, as a matter of
law, Martin did not possess the required interpersonal skills to
be qualified for the Accounts Payable Supervisor position.
Accordingly, the court finds that Allegheny has not demonstrated
that Martin fails to satisfy her prima facie case.
2. Allegheny's Proffered Reasons
Pursuant to the second step of the McDonnell Douglas
framework, Allegheny must now articulate a legitimate,
nondiscriminatory reason for not awarding Martin the promotion.
At this stage, Allegheny merely bears the burden of production.
See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Thus,
in order to satisfy its burden, Allegheny need not actually
prove its reasons for not promoting Martin. Instead, Allegheny
satisfies its burden of production by introducing evidence
which, taken as true, would permit the conclusion that its
reasons for not promoting Martin were nondiscriminatory. See
id., 32 F.3d at 763.
Allegheny has sufficiently satisfied this minimal burden of
production by articulating legitimate, non-discriminatory
reasons for deciding to promote Kreider over Martin. Allegheny
asserts that it chose Kreider because: (1) She performed well in
her positions at Allegheny and demonstrated good interpersonal
skills; (2) She had significant seniority at Allegheny in that
she had worked in the Finance department for nine years when the
position became available; (3) She had a broad base of
experience in accounting and finance based on: her accounting
experience before Allegheny, her work as an Accounts Payable
Coder for years, and her work as a Treasury Analyst; and (4) She
had demonstrated her ability to work with computer spreadsheets
as required for the financial analyst duties of the position
while she was a Treasury Analyst.
3. Are Proffered Reasons Pretextual?
The burden now shifts back to Martin to rebut Allegheny's
proffered reasons for not promoting her. The Third Circuit has
capsulized the third step in the McDonnell Douglas
burden-shifting analysis as follows:
[T]o defeat summary judgment when the defendant
answer the plaintiffs prima facie case with
legitimate, non-discriminatory reasons for its
action, the plaintiff must . . . either (i)
[discredit] the proffered reasons, either
circumstantially or directly, or (ii) adduc[e]
evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating
or determinative cause of the adverse employment
action. Thus, if the plaintiff has pointed to
evidence sufficiently to discredit the defendant's
proffered reason, to survive summary judgment the
plaintiff need not also come forward with additional
evidence of discrimination beyond his or her prima
Fuentes, 32 F.3d at 764 (citations omitted). Martin rebuts
Allegheny's proffered reasons via the first alternative,
discrediting them based on mainly circumstantial evidence.
Martin argues that there are inconsistencies and factual issues
surrounding Allegheny's proffered reasons for promoting Kreider
over Martin which are fatal to the instant motion. In order to
avoid summary judgment by discrediting Allegheny's proffered
[P]laintiff cannot simply show that [Allegheny's]
decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus
motivated [Allegheny], not whether [Allegheny] is
wise, shrewd, prudent, or competent. Rather, the
non-moving [P]laintiff must demonstrate such
weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in [Allegheny's]
proffered legitimate reasons for its action that a
reasonable fact-finder could rationally find them
unworthy of credence, and hence infer that
[Allegheny] did not act for the asserted
Id. at 765 (internal quotations omitted).
In order to demonstrate inconsistencies or contradictions in
Allegheny's first proffered reason, concerning Martin's problem
with interpersonal skills contrasted with Kreider's good
interpersonal skills, Martin presents two sources of evidence.
First, regarding Allegheny's assertion that Martin had poorer
interpersonal skills and a negative attitude, Martin elicits
testimony from Eppley, a manager at Allegheny, who stated that
he personally saw no problems with Martin's attitude. In no way
does this impact on the fact that the three decision-makers at
Allegheny — Strohm, McMasters, and Tucci — witnessed, reviewed,
and discussed Martin's interpersonal skills problem. Martin uses
Eppley's testimony, not only because it describes her as having
a positive attitude, but also because McMasters testified that
Eppley was among the employees who complained about Martin's
attitude. Although this is an inconsistency in Allegheny's
position, there is enough evidence in the record that the
decision-makers of Allegheny believed Martin had interpersonal
skills problems that the minor inconsistency does not rise to
the level to persuade a jury that Allegheny's proffered reason
lacks credence.*fn7 Second, Martin challenges Allegheny's
assertion that Kreider had good interpersonal skills by arguing
that one of Kreider's yearly reviews was not entered into
evidence. However, all of Kreider's other yearly reviews
demonstrate her good interpersonal skills and Foose, Director of
Human Resources, verified in her affidavit that Kreider always
received good to excellent reviews in this area. Martin's bald
assertion that Kreider's interpersonal skills might not be as
good as Allegheny purports lacks any foundation and is contrary
to the evidence presented by Allegheny.
Allegheny's second and third proffered reason for choosing
Kreider instead of Martin both concern Kreider's experience at
Allegheny and in particular accounting experience. Evidence in
the record indicates that Kreider had been with Allegheny for
between three and five years longer than Martin had when the
Accounts Payable Supervisor position became available. And
Kreider had worked as a Treasury Analyst as well as a Accounts
Payable Coder. Allegheny asserts that this experience made her
more qualified than Martin. Martin attempts to discredit this
reason with some of the testimony by McMasters. He testified
that he didn't "think there is any one particular department
that would give you more skills for the [Accounts Payable
Supervisor] position, other than the [Accounts Payable]
department that already exists. [He means] the department the
job is going to supervise." (McMasters at 15.) Martin asserts
that this is inconsistent with the fact that Kreider had been
working in the Finance Department prior to the promotion.
However, the court does not agree that this alleged discrepancy
could discredit Allegheny's professed value in Kreider's
experience at Allegheny.*fn8 Accordingly, the court does not
believe that Martin has cast sufficient doubt on these proffered
reasons so that a jury could find them pretextual.
Martin also attempts to discredit Allegheny's fourth proffered
reason for promoting Kreider, her demonstrated computer skills.
Martin asserts that she herself was never given the opportunity
to demonstrate her computer skills to the decision-makers.
However, while this may be true, it does not cast any doubt as
to the credibility of Allegheny's proffered reason that
Kreider's proven computer skills were valued by the
decision-makers. "Pretext is not demonstrated by showing simply
that the employer was mistaken in its business judgment." Grove
v. H.E.F., Inc., No. CIV.A. 97-CV-373, 1998 WL 107179, at *3
(E.D.Pa. March 11, 1998) (citing Sempier v. Johnson & Higgins,
45 F.3d 724, 731 (3d Cir. 1995)). In a Title VII case of
discrimination on the basis of religion, one district court
stated: "The question is not whether [Defendant's] decision
. . . was an error of business judgment, but whether [Plaintiff]
was discriminated against because of his religion." Weiss v.
Parker Hannifan Corp., 747 F. Supp. 1118, 1128 (N.J. 1990)
(citing Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir.
1979)). Martin does not argue that her computer skills were
superior to Kreider's, but that the decision-makers did not give
her a chance to prove herself. At worst, not giving Martin a
chance to demonstrate her computer skills, might be considered
bad business judgment. There is no indication, however, that the
decision-makers considered Martin's disability in making their
decision, and no evidence to demonstrate pretext was produced by
The last argument Martin makes in attempting to demonstrate
that Allegheny's proffered reasons are pretextual is that the
timing is very close between when she advised her supervisors of
her diagnosis of probable multiple sclerosis and when the
decision-makers made the decision to promote Kreider instead of
Martin. Although a court may consider timing in assessing
discrimination, "[t]o consider timing . . . in relation to a
dismissal [or failure to promote] as evidence of discrimination,
there must be some logical connection between the timing . . .
and the possibility of the particular discrimination at issue."
Walton v. Mental Health Ass'n. of Southeastern Pennsylvania,
168 F.3d 661, 669 (3d Cir. 1999) (emphasis added). In the case
at bar Martin does not present evidence of such logical
connection or even allege any such connection. Cf. Cinelli v.
U.S. Energy Partners, 77 F. Supp.2d 566, 578-79 (N.J. 1999)
(denying summary judgment and considering timing of discharge
when plaintiffs "disclosure of fatal illness was virtually
contemporaneous with his discharge, and because [plaintiff]
has produced evidence that his employer had doubts about his
ability to perform because of his `current [medical]
situation.'") (emphasis added).
The court finds that Martin has not adduced sufficient
evidence to challenge any of Allegheny's proffered reasons for
choosing to promote Kreider to the Accounts Payable Supervisor
position instead of Martin to the extent that a reasonable jury
would find Allegheny's reasons unworthy of credence and
pretextual. Accordingly, the court will grant summary judgment
in favor of Allegheny on the failure to promote claim.
B. Hostile Work Environment
Allegheny argues that Martin's ADA claim asserting a hostile
work environment also must fail. The Third Circuit has outlined
the elements necessary to support such a claim as follows:
A claim for harassment based on disability, like one
under Title VII, would require a showing that: (1)
[Martin] is a qualified individual with a disability
under the ADA; (2) she was subject to unwelcome
harassment; (3) the harassment was based on her
disability or a request for an accommodation; (4) the
harassment was sufficiently severe or pervasive to
alter the conditions of her employment and to create
an abusive working environment; and (5) that
[Allegheny] knew or should have known of the
harassment and failed to take prompt effective
Walton, 168 F.3d at 667. Allegheny argues, inter alia, that
the individual incidents Martin sets forth which allegedly
demonstrate the hostile work environment neither: (1) are based
on Martin's disability, nor (2) are severe or pervasive so as to
alter the conditions of Martin's employment. The analysis of the
hostile work environment claim has a subjective and an objective
component: the evidence must establish that the environment
would be perceived by a reasonable person as hostile or abusive
and that Martin did, in fact, perceive it to be so. Harris,
510 U.S. at 22, 114 S.Ct. 367.
The court agrees with Allegheny that the incidents alleged by
Martin were not severe or pervasive so as to alter the
conditions of her employment. The incidents Martin cites are as
follows: comments by a co-employee, Trang Rioux, first, that
Martin and a co-worker with a disability, were the reason "why
we have to go all the way down to the other end of the building
now to use the bathroom" to conduct drug-testing, and second,
referring to Martin, "oh, there's the real image of excellence;"
after learning of Martin's diagnosis, Tucci, did not ask for
assistance from Martin as often and tried to avoid eye contact
or converse with Martin as often; Strohm was not as friendly and
did not go to the Accounts Payable Office as often; a statement
by Strohm toward Martin, after Kreider received the promotion
Martin desired, that if Martin did not cooperate with Kreider,
she would be on the "outside looking in;" and Strohm asking
about Martin's medical problems which Martin interpreted as
In determining whether an environment is objectively hostile
or abusive, the court considers all of the circumstances,
including, "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris, 510
U.S. at 23, 114 S.Ct. 367. To be "pervasive" the incidents "must
be more than episodic, they must be sufficiently continuous and
concerted." Faragher v. City of Boca Raton, 524 U.S. 775, 787
n. 1, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); see also Harris
v. Smithkline Beecham, 27 F. Supp.2d 569, 578 (E.D.Pa. 1998)
(holding that a "plaintiff cannot rely upon casual, isolated, or
sporadic incidents to support her claim of hostile work
environment harassment"). Some of the alleged incidents, such as
Tucci's and Strohm's attitude toward Martin, appear to amount to
no more than a personality conflict, and "[i]nsensitivity alone
does not amount to harassment; the ADA, like Title VII, is not
in effect a `general civility code.'" Cannice v. Norwest Bank
Iowa N.A., 189 F.3d 723, 726 (8th Cir. 1999) (quoting Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118
S.Ct. 998, 140 L.Ed.2d 201 (1998)). The comments by Rioux, even
though interpreted to be offensive by Martin, are not
threatening or abusive. The court finds that the alleged
incidents, even taken as a whole: are not severe and either
physically threatening or humiliating; are not sufficiently
continuous so as to be pervasive; and do not rise to the level
that they interfere with her work performance. See Walton, 168
F.3d at 667.
Moreover, Martin has not demonstrated that the incidents she
asserts as creating the hostile work environment were based
on her disability. While she argues that Rioux's comments
concern her disability, this is not apparent on their face. In
Walton, the Third Circuit denied the plaintiff's hostile work
environment claim because, although it was clear that plaintiffs
and her supervisor's relationship was poor, plaintiff "ha[d] not
asserted facts that would allow a reasonable jury to find that
[her supervisor] harassed her because of her disability." 168
F.3d at 667. The court cited, Uhl v. Zalk Josephs Fabricators,
Inc., 121 F.3d 1133, 1137 (7th Cir. 1997), for the proposition
that "([a] personality conflict doesn't ripen into an ADA claim
simply because one of the parties has a disability."). The court
further held that "[t]he fact that [her supervisor's] behavior
toward [plaintiff] may have been offensive does not indicate
that it was based on [plaintiffs] disability." Id. The case at
bar is very similar in that Martin did not produce evidence that
the incidents of the Allegheny employees were based on Martin's
probable multiple sclerosis.
Accordingly, the court finds that the incidents alleged by
Martin are not severe or pervasive so as to constitute a hostile
work environment, nor are they based on Martin's disability.
Therefore, the court will grant summary judgment in favor of
Allegheny on Martin's hostile work environment cause of action.
C. Constructive Discharge
Martin asserts that because her work environment was hostile,
she felt compelled to resign as would a reasonable person.
However, the court has found that Martin was not subject to a
hostile work environment as she claims. To establish a
"constructive discharge" claim, Martin must prove that Allegheny
"knowingly permitted conditions of discrimination in employment
so intolerable" that a reasonable person in her position would
have been compelled to resign. See Goss v. Exxon Office Systems
Co., 747 F.2d 885, 888 (3d Cir. 1984); Maher v. Associated
Services for the Blind, 929 F. Supp. 809, 814 (E.D.Pa. 1996).
Because the court finds that the work environment was not
hostile or abusive, a reasonable person in Martin's position
would not have been compelled to resign. Accordingly, summary
judgment will be granted in favor of Allegheny.
In accordance with the foregoing discussion, the court finds
that Allegheny's motion for summary judgment should be granted.
An appropriate order will issue.
Based upon the findings in the accompanying memorandum, IT IS
HEREBY ORDERED THAT Defendant's motion for summary judgment is
GRANTED. The Clerk of Court is directed to enter judgment in
favor of Defendant and against Plaintiff, and to close the case.