United States District Court, W.D. Pennsylvania
October 17, 2005.
ROBERT C. LARRIMER, Plaintiff,
PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, Defendant.
The opinion of the court was delivered by: ARTHUR SCHWAB, District Judge
This is an action in employment discrimination. Plaintiff,
Robert C. Larrimer ("Larrimer") alleges that defendant,
Pennsylvania Department of Public Welfare ("DPW") discriminated
against him based upon his gender when he was not promoted to the
position of director of the western area staff development of the
DPW in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq. Plaintiff seeks monetary relief in the
form of compensatory and punitive damages. Defendant has filed a
motion for summary judgment under Fed.R.Civ.P. 56(c) arguing that
plaintiff cannot create a material issue of fact on his claim of
reverse gender discrimination. For the reasons that follow, the
motion will be granted.
Unless otherwise noted, the following facts, as gleaned from
the parties joint statement of material facts, are not in
1. This action was initiated by plaintiff, Larrimer, who claims
that defendant, DPW discriminated against him based on his gender
when a less experienced female was promoted to a position which
he had sought. 2. In May of 2004, Larrimer sought promotion to the position of
income maintenance staff development manager, or as it was also
known, director of western area staff development. It is a
supervisory and administrative position which is "responsible for
directing the implementation, coordination, and evaluation of
staff development programs in an assigned geographic area of the
3. Harry Felice ("Felice") has been the director of the
division of staff development since approximately 1999; he had
previously held the position of director, southeast area staff
4. Felice has six area directors who report to him. Of the six
area directors, two are men and four are women. The two male area
managers have held their positions since before Felice became the
5. All four female area managers, including Linda Toy ("Toy")
were promoted since 1998. Because these positions reported
directly to Felice, he convened the panels and participated in
the interviews for all of these area managers.
6. The final ranking sheets for the area manager promotions of
Patricia Dills ("Dills") (in the northeast) and Evelynn Showell
("Showell") (in the Southeast) were purged from the divisional
files and thus were not available for disclosure. However, based
on Felice's recollections, Dills was promoted on July 26, 2002,
she was selected over one other qualified male candidate and the
promotion panel was composed of Felice and Timothy Philamac.
Showell was promoted in May of 1998, she was selected over one
other qualified female candidate and the promotion panel was
composed of Felice and Georgine Beyer. 7. Currently, of the 24 staff development specialists in the
area offices, there are 14 women and 10 men, including Larrimer.
DPW's Selection Process for Hiring and Promotions
8. The DPW utilizes a hiring/promotion process that consists of
the following general steps:
(a) A position announcement is advertised and/or posted listing
necessary information about a particular job along with deadlines
for response. All interested applicants are asked to submit a
resume, which is then reviewed by the personnel office.
(b) Once the qualified candidates are identified, these
candidates are scheduled for individual interviews in front of a
selection panel which is compised of two to three people,
preferrably of mixed races and genders.
(c) The person to whom the selected employee will report forms
the panel and all interviews are conducted at the same time.
(d) A list of questions specific to the open position is
developed for use at the interviews. The questions may also
contain a list of factors to be considered by the panel when
scoring the answers to the questions. Some panels permit the
candidates to view the questions a few minutes before the
interview begins, otherwise the candidates go into the interview
"cold." The questions are asked "in rotation;" once a question is
asked, there is no further questioning by, discussion of, or
follow-up from the panelists.
(e) The candidate's response to each question is scored by each
interviewer individually on a scale of 1 to 10. At the end of
each of the interviews, each panelist adds together each
candidate's individual answer scores to obtain that candidate's
score; at the conclusion of each candidate's interview the panelists may discuss the candidate's
(f) The panelists' score sheets are then tabulated and the
candidates are ranked from highest to lower based on their
cumulative scores. The highest ranked candidate is then offered
the position, unless there are two or three closely rated
candidates, in which case, the panel may discuss other factors.
(g) The position is offered to the candidate with highest score
on the interview and the candidate's personal recommendations,
resume, and length of service are not considered.
Larrimer's Employment History
9. Larrimer has been employed by the DPW for almost 30 years.
He has held the positions of caseworker, supervisor of training,
and staff development specialist. He began his employment with
DPW in the Cambria County office and was transferred to western
area staff development in the Pittsburgh office in 1991.
The Promotion for Director of West Area Staff Development
10. As a staff development specialist working in the Pittsburgh
office, Larrimer's supervisor was Patrick DeCaprio, and
DeCaprio's supervisor was Felice. In 2004, DeCaprio retired and
his position became open.
11. On May 12, 2004, the position of director of western area
staff was posted. Larrimer and four others, two men (Ralph Hegner
and Andrew McLaren) and two women (Mary Ann Grzes and Linda Toy)
submitted applications for the position and were deemed
"qualified" by the personnel office. All five candidates were
scheduled to be interviewed on July 1, 2004.
12. Because the new position would report to Felice, he was
responsible for coordinating the interview panel. He selected
himself and two other executive directors, Sandra Fraser (Beaver) and John Vagias (Butler) to serve on the panel.
13. Consistent with DPW policy, Felice prepared the questions
for the interviews and the candidates were each given 15 minutes
to review the questions before their interviews.
14. The panelists, who asked the interviewees 7 questions, took
notes of each candidate's response and filled out their score
15. Again, consistent with DPW policy, at the end of the
interviews, the panelists' scores were tabulated and ranked
highest to lowest. Each panelist had Toy as the highest ranked
candidate and two panelists ranked Larrimer as the lowest
candidate and the other panelist ranked him fourth out of five.
16. Toy (female) was ranked first, Hengner (male) was ranked
second, McLaren (male) was ranked third, Grzes (female) was
ranked fourth, and Larrimer was ranked fifth. The panel selected
Toy for the promotion and she assumed the position of director of
western area staff development.
17. Felice personally informed Larrimer in July of 2004 that he
was not selected for the position and that Toy was selected. He
stated to Larrimer, "trust me, she interviewed better."
18. The three panelists who were deposed in this matter all
indicated that Toy had performed the best of all the
interviewees, and that Larrimer had not performed well compared
to the others. All three indicated that this was a very fair
process and comported in all respects with the policies
established by the DPW.
19. Other than expressed concerns about the potential bias of
the panelists based on prior associations with some of the
candidates and the subjective nature of the process, Larrimer did
not feel that the selection process was not outwardly followed in
this case. At his deposition, Larrimer could not point to any specific evidence to suggest that
Felice, Fraser and Vagias did not score the candidate interviews
in this case in a fair and unbiased manner.
20. Felice testified that Toy was clear, articulate,
enthusiastic, showed leadership skills, answered questions
decisively, and showed problem solving skills. Felice categorized
Larrimer's performance as the poorest of the five and stated that
his answers were vague and nonspecific.
21. Fraser testified that Toy's selection was fairly clear cut
and that there were not two or three candidates who were so close
that the panel had to debate the issue. Fraser was also impressed
by Toy's performance at the interview, citing her confidence
level, and the clarity of her communication. Conversely, Fraser
stated that Larrimer "had not given us al that he was. There were
answers like `I have been doing this job for so many years,' but
not details of what was done in that job. There was not enough
detail of his skills and his skill set."
22. Vagias similarly testified that Larrimer's performance at
the interview did not measure up to Toy's, that Toy did much
better at relating her experiences, her education, and her
background to the role of director and that there was a 23 point
differential between Toy and the number two candidate (Hegner).
Nonetheless, Vagias did testify that Felice "was running the
23. The panelists indicated that they were not subjected to any
outside influences or otherwise pressured to make any particular
selection. Fraser and Vagias testified that Felice had not
indicated his preference for the position and had not exerted any
influence over them either prior to or during the interviews, or
afterwards during the scoring and tabulation of the results.
24. In a letter dated July 23, 2004, Larrimer complained to the
DPW's Bureau of Equal Opportunity that Toy was selected because
her husband was also an executive director in another Western Pennsylvania county. The Bureau of Equal Opportunity
informed Larrimer that he did not have jurisdiction over this
type of complaint, Larrimer then wrote a letter to the secretary
of the DPW and attached his prior correspondence to the Bureau of
Equal Opportunity. These letters contain no claim that Toy was
selected because of her gender or that Larrimer was not selected
because of his gender.
25. After pursing his administrative remedies, plaintiff filed
the instant suit.
26. As of the date that Felice learned that Larrimer had filed
a complaint with the EEOC, Felice had never served on a panel
which hired or promoted a man for a position working directly
under Felice. Since 1998 to the date of filing on the EEOC
complaint, there were eight open positions under Felice and
Felice hired 8 women and no men.
27. Larrimer testified that he heard from Felice's secretary
that Toy was given the promotion based on her gender. Further,
Larrimer testified that: he heard from Patrick DeCaprio (a
retired income maintenance staff development manager) that Felice
"had his eye on Toy," that Clark Bryant (current staff
development specialist) told him that Felice told Bryant that he
was not going to fill another position until a woman, Linda
Perry, met the qualifications for that job and that Bryant told
him that Felice made a negative comment about a male candidate's
ponytail while on an interview panel for another position.
28. In his affidavit, DeCaprio stated that he believes that
Felice always chooses candidates who are flashy women, who make a
29. According to DeCaprio and Bryant, there have been numerous
rumors that the DPW preselects who it wants to hire or promote
prior to the interview. II. STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). In considering a motion for summary judgment, we
must examine the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of
that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The moving party bears the initial burden of identifying
the basis of the motion and the evidence which demonstrates the
absence of a genuine issue of material fact. Celotex,
477 U.S. at 323.
In order to avoid summary judgment, the burden shifts to the
non-moving party to produce evidence that a reasonable
fact-finder could find for that party. Anderson,
477 U.S. at 248-249. The non-moving party must go beyond the pleadings and
produce evidence through affidavits, depositions or admissions to
show that there is a genuine issue for trial. Celotex,
477 U.S. at 324. When considering the reasonable fact-finder rule, the
court must apply the evidentiary standard which governs at trial.
Anderson, 477 U.S. at 252. Summary judgment must therefore be
granted "against a party who 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 of
proof at trial." Celotex, 477 U.S. at 322.
Plaintiff claims that he was not promoted because of his gender
and bases his claim upon a theory of disparate
treatment.*fn1 In analyzing a claim for failure to promote
on the basis of gender under Title VII, we apply the familiar burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under this scheme: (1) plaintiff bears the
burden of establishing a prima facie case of discrimination; (2)
the burden of production then shifts to defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action; (3) if defendant meets its burden of production,
plaintiff must prove by a preponderance of the evidence that
defendant's proffered reason was a pretext for discrimination.
See McDonnell Douglas, 411 U.S. at 802; St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 506-508 (1993).
To establish a prima facie case of gender discrimination in a
failure to hire/promote context, a plaintiff must show that: (1)
he is a member of a protected class; (2) he applied for and was
qualified for a position for which the employer was seeking
applicants; (3) despite his qualifications he was rejected; and
(4) after plaintiff was rejected, defendant continued to seek
applications from individuals with plaintiff's qualifications.
Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997)
(citing McDonnell Douglas, 411 U.S. at 802). Additionally,
plaintiff must show that another similarly-situated individual
from a non-protected class was promoted instead of him. Moss v.
Koolvent Aluminum Products, Inc., 962 F.Supp. 657, 669 (W.D.Pa.
1997). Even though plaintiff, as a male, was not a member of a
protected class, the standard for establishing a prima facie case
of reverse discrimination is the same as the standard in any
other case where an individual alleges discrimination. Iadimarco
v. Runyon, 190 F.3d 151, 1601-61(3d Cir. 1999).
Although the parties dispute and this Court has serious doubts
that Larrimer has established a prima facie case of the reverse gender
discrimination, the Court will assume for the sake of argument
that he has. As such, the burden shifts to defendant to proffer a
legitimate, nondiscriminatory reason for failing to promote
plaintiff. See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
1994) (citing McDonnell Douglas, 411 U.S. at 802).
Defendant asserts that Larrimer was not promoted because, out
of five applicants, he obtained the lowest score during the
interview process, and that the promotion was awarded to Toy,
because she achieved the highest score during this process. This
Court finds that defendant has proffered legitimate,
nondiscriminatory reasons for failing to promote Larrimer.
Thus, under the final prong of the McDonnell Douglas
analysis, the burden shifts to Larrimer to produce sufficient
evidence to withstand summary judgment on the issue of pretext.
See McDonnell Douglass, 411 U.S. at 802. Larrimer must point
to some evidence, direct or circumstantial, from which a
fact-finder could reasonably either (1) disbelieve defendant's
articulated legitimate reasons or (2) believe than an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of defendant's action. See Fuentes,
32 F.3d at 764; Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 523 (3d Cir. 1992) (citation omitted). In other words,
Larrimer must demonstrate such "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions" in defendant's
proffered legitimate reasons such that a "reasonable fact-finder
could rationally find them unworthy of credence and hence infer
that the proffered nondiscriminatory reasons did not actually
motivate" defendant's action. Fuentes, 32 F.3d at 764-765
(quoting Ezold, 983 F.2d at 531). Most recently, in Kautz v. Met-Pro Corporation, 412 F.3d 463,
467 (3d Cir. 2005), the United States Court of Appeals for the
Third Circuit further explained that:
[P]retext is not shown by evidence that `the
employer's decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory
animus motivated the employer, not whether the
employer is wise, shrewd, prudent or competent.'
Id. (quoting Fuentes at 765).
In support of his pretext argument, Larrimer first contends
that Felice was unable to explain why Toy was given higher scores
than his answers because his notes of the responses looked
similar. However, notwithstanding defendant's reply that
plaintiff mischaracterizes Felice's testimony, the Court
recognizes that the testimony of all the panelists that
Larrimer's performance at the interview was not nearly as strong
as Toy's. The combined testimony of the panelists as to
Larrimer's inadequacy in this regard, in addition to the fact
that the panelists engaged in a diligent and uniform method of
ranking the answers and assigning point value, is sufficient to
overcome any alleged incoherencies in Felice's memory as to his
reasons for certain scores.
Larrimer next contends that the testimony of DeCaprio that he
believes Felice chose candidates who were flashy women and that
rumors "abounded" that candidates for open positions were chosen
prior to the interviews is evidence of pretext. This Court finds
that these statements are conclusory and are not supported by
specific examples and therefore fail to create a genuine issue of
fact on pretext. See Maldonado v. Ramirez, 757 F.2d 48, 51
(3d Cir. 1985) (conclusory statements in affidavits unsupported
by specific examples fail to create genuine issue of fact). And,
as for DeCaprio's testimony that Felice had commented that "Ms.
Toy is going to go places," said comment in no way suggests a bias in
favor or her or any other female, rather it reflects Felice's
opinion that she was a good employee.
Larrimer further alleges that Bryant's testimony that he heard
that Daphne Martens had not applied for a position because Felice
had told her that another woman would be selected for the
position is evidence of pretext. However, this evidence is
inadmissible hearsay, and even if it were admissible, it does
nothing to support plaintiff's argument regarding pretext.
Larrimer next alleges that Bryant testified that Felice said he
was not going to fill an open position until a woman became
qualified for the position supports his pretext argument. In his
deposition, Bryant testified that Felice "said that he was going
to leave the position open until a new person got enough
experience to be director because he didn't feel that the people
that were there could do the job." (Plaintiff's Exhibit 11, page
30-31). This testimony does nothing to advance plaintiff's
argument on pretext.
Finally, the fact that Felice had hired only women to positions
reporting directly to him, while admissible, without more, is not
ordinarily dispositive. Healy v. New York Life Insurance Co.,
860 F.2d 1209, 1218 (3d Cir. 1988) ("statistical evidence can be
probative if cautiously and critically applied, but it cannot end
our inquiry"). See also, Abrams v. Lightolier Inc.,
50 F.3d 1204, 1217 (3d Cir. 1995) ("Although a plaintiff in a disparate
treatment case is not precluded from introducing statistical
evidence as circumstantial evidence of discrimination, it is
ordinarily not dispositive."). In Castillo v. American Board of
Surgery, 221 F.Supp. 2d 564, 569-570 (E.D. Pa. 2002), the Court
observed that in individual disparate treatment cases,
statistical evidence is less significant because the ultimate
issue is whether the particular plaintiff was the victim of an
illegitimately motivated employment decision. In this case, plaintiff has submitted no evidence to support
the inference that this statistical disparity was the result of
discrimination. The fact that four women have been promoted
during Felice's tenure, without more, does not establish that
defendant treated men less favorably than women. On the contrary,
the evidence submitted regarding DPW's hiring and promotion
policy helps to ensure that no one person makes employment
decisions, and every panel member stated that Felice said or did
nothing to suggest any bias in favor women generally, or Toy
The Court finds that Larrimer has failed to satisfy his burden.
Larrimer has failed to produce evidence of discrimination or that
defendant's tendered reason for its decision not to promote
Larrimer is not worthy of credence. He has neither alleged, nor
has he shown that Toy was not qualified for the position (or that
he was more qualified than Toy). Furthermore, he has not produced
any evidence that the candidate interviews were administered
arbitrarily, that the interview process was a pretense, or that
the selection process was skewed. On the contrary, the facts as
elicited (and agreed to by the parties) during the depositions of
the panelists refutes any suggestion that the selection process
was not appropriately conducted. While the Court has carefully
considered the statistical evidence of Felice's promotion of
women, that fact, in and of itself, and without other competent
evidence, is not sufficient evidence of pretext.
Thus, the Court concludes that a reasonable juror could not
find Larrimer's pretext arguments worthy of credence. Viewing the
facts in the light most favorable to Larrimer, he has failed to
establish sufficient evidence from which a reasonable fact-finder
could rationally find that the defendant's articulated reasons
for its employment action were unworthy of credence, or that the
decision not to promote Larrimer was motivated by his gender.
Where a plaintiff is unable to show weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in defendant's reasons for its
action, summary judgment is required. Fuentes, 32 F.3d at 756.
For these reasons, defendant's motion for summary judgment will
be granted. An appropriate order follows.
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