Opinion
Civil Action No. 03-3858.
March 17, 2005
MEMORANDUM
Before the Court is Defendants' Motion for Reconsideration of Their Motion for Summary Judgment ("Motion for Reconsideration") in which defendants argue that the Court erred in denying their motion for summary judgment in this employment discrimination case by Order and Memorandum dated September 7, 2004. Upon further review of the record, the Court concludes that it erred in ruling that plaintiff rebutted the legitimacy of defendants' proffered reasons for not advancing her to the final round of interviews for the position of Chief Bus Operations Officer. Accordingly, Defendants' Motion for Reconsideration is granted, the Court's Order and Memorandum of September 7, 2004, are vacated, and Defendants' Motion for Summary Judgment is granted.
I. BACKGROUND
The facts of this case are set forth in the Court's September 7, 2004 Order and Memorandum. Accordingly, they are referred to in this Memorandum only as required.
Twenty-seven persons submitted applications in November, 2001, for the position of Chief Bus Operations Officer for defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"). Plaintiff, Rosemary Conine, was one of these twenty-seven applicants. After receiving these applications, SEPTA sorted the applicants into three groups based on their qualifications: those who met the minimum job qualifications for the Chief Bus Operations Officer position, a group of "in-betweeners", and those who did not possess the specified qualifications. SEPTA then elected to interview eleven of these twenty-seven applicants, including plaintiff.
Plaintiff and the other ten chosen applicants for the Chief Bus Operations Officer position were each given a first-round interview by a panel of three SEPTA personnel — Jacob Aufschauer ("Aufschauer"), Bernard Cohen ("Cohen"), and Luther Diggs ("Diggs"). SEPTA then advanced the five top-ranked applicants from the first round of interviews to a final round of interviews. Plaintiff was not one of these five top-ranked applicants.
The questions asked during the first round of interviews covered a variety of topics, including: the applicants' views of the qualities and skills most important to the Chief Bus Operations Officer position (Question 1); how their subordinates would describe the applicants' management and leadership skills (Question 2); the applicants' assessment of the strengths and weaknesses of SEPTA's bus operations (Question 3); tools and management techniques the applicants would implement as Chief Bus Operations Officer to measure and improve performance (Question 4); specific subject matter (Question 5); and accomplishments of which the applicants themselves were particularly proud (Question 6). (See Defendants' S.J. Memo. Exhibit "J").
On June 27, 2003, plaintiff filed this action alleging gender discrimination against SEPTA in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq., as amended by the Civil Rights Act of 1991 at 42 U.S.C. § 1981(a), and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq.; and a separate claim against defendant Bernard Cohen based on alleged violation of the PHRA by abetting, inciting, and compelling intentional sex discrimination.
Defendants filed a Motion for Summary Judgment on March 1, 2004, which the Court denied by Order and Memorandum dated September 7, 2004. In the pending motion, defendants ask the Court to reconsider that Order and Memorandum.
In her Opposition to Defendants' Motion for Reconsideration, plaintiff voluntarily withdrew her separate PHRA claim against defendant Bernard Cohen. (See Def. Mot. for Reconsideration at 4; Pl. Opposition to Def. Mot. for Reconsideration at 2, n. 1). Accordingly, SEPTA is the sole remaining defendant.
II. LEGAL STANDARDS
A. Motion For Reconsideration
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." McNeal v. Maritank Phila., Inc., No. 97-0890, 1999 WL 80268, at *4 (E.D. Pa. Jan. 29, 1999). Accordingly, "[a] motion for reconsideration is only appropriate where: (1) there has been an intervening change in controlling law; (2) new evidence is available; or (3) there is [a] need to correct a clear error of law or prevent manifest injustice." Wojtunik v. Kealy, No. 02-8410, 2003 WL 22238952 at *1 (E.D. Pa. Sept. 30, 2003) (citations omitted).
B. Summary Judgment Standard in Title VII Actions
To analyze intentional discrimination cases involving a failure to promote, courts perform the burden-shifting analysis developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Under the first step of this analysis, a plaintiff has the burden of establishing a prima facie case of discrimination in an employer's decision-making process. Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir. 2000). Once a plaintiff meets this burden, the employer must come forward with a legitimate, nondiscriminatory reason for the adverse employment decision. Id. If the employer is able to proffer a legitimate, nondiscriminatory reason for its action, the plaintiff has the burden of proving that the proffered reason is actually a pretext for discrimination. Id.
The Court concluded in its Memorandum of September 7, 2004, that plaintiff made out a prima facie case of gender discrimination and that SEPTA proffered legitimate, nondiscriminatory reasons for not advancing plaintiff to the final round of interviews for the position of Chief Bus Operations Officer. The parties do not contest those conclusions. Accordingly, this Memorandum will focus solely on the question whether plaintiff has demonstrated that SEPTA's proffered reasons for not advancing plaintiff were pretextual. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
To demonstrate pretext, a plaintiff must submit evidence sufficient for a factfinder to disbelieve the employer's articulated legitimate reasons or to believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of that employer's action. Id. In doing so, a plaintiff is required to present evidence that allows a factfinder "reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action." Id. (emphasis in original). To avoid summary judgment, a plaintiff need not, however, rebut each of defendant's proffered reasons "in a vacuum." Id. at 764 n. 7. "If the defendant proffers a bagful of legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair number of them, plaintiff may not need to discredit the remainder." Id.
III. DISCUSSION
In its Motion for Reconsideration, SEPTA argues that plaintiff has not sufficiently rebutted its articulated legitimate reasons for not advancing her to the final round of interviews. In her response, plaintiff states that she has rebutted each of these proffered reasons. Upon reconsideration of SEPTA's proffered reasons for not advancing plaintiff and plaintiff's responses, the Court concludes that SEPTA's decision not to advance plaintiff to the final round of interviews was motivated by legitimate reasons and that plaintiff has not presented sufficient evidence from which a factfinder could disbelieve these reasons or believe that an invidious discriminatory purpose motivated SEPTA's decision. Id.
1. SEPTA's Proffered Reasons for Not Advancing Plaintiff to the Final Round of Interviews
SEPTA sets forth three reasons for its decision not to advance plaintiff to the final round of interviews: (1) plaintiff lacked knowledge of specific subject matter relevant to the Chief Bus Operations Officer position, (2) plaintiff lacked maintenance experience, and (3) plaintiff's responses to interview questions were narrow and unspecific, failed to demonstrate an ability to think from the perspective of the Chief Bus Operations Officer position, and failed adequately to address how to improve SEPTA's bus operations. (Defendants' S.J. Memo. at 15-18). According to SEPTA, plaintiff's lack of knowledge of specific subject matter relevant to the Chief Bus Operations Officer position was the main reason for the decision not to advance plaintiff to the final round of interviews. (Defendants' Motion for Reconsideration at 2).
The Court, in its September 7, 2004 Memorandum, addressed only the second proffered reason for not advancing plaintiff — the fact that plaintiff lacked maintenance experience. Relying on plaintiff's statement that she had an understanding of the close connection between transportation and maintenance with respect to bus operations and concluding that, as a result, she possessed the necessary expertise with respect to maintenance issues, the Court ruled that plaintiff had presented a genuine issue of material fact with respect to that proffered reason for not advancing plaintiff in the interview process, and did not address SEPTA's other reasons. The Court will now reexamine that decision.
An employer is permitted to decide which job criteria are important and to determine what skill set is most appropriate for a given position. Brenner v. Harleysville Ins. Cos., No. 01-08, 2002 U.S. Dist. LEXIS 18494, at *26 (E.D. Pa. Sept. 30, 2002). In this case, SEPTA identified maintenance as one of the primary responsibilities of the Chief Bus Operations Officer position — the announcement for the position ("Position Announcement") states that one of the primary responsibilities of the Chief Bus Operations Officer is to "[p]rovide the day-to-day maintenance and repair of the bus, trolley, and trackless trolley fleets, the facilities that support these fleets, and the station facilities associated with Bus Operations." (Plaintiff's S.J. Opposition Memo. Exhibit "E"). The interview panel members identified maintenance as an important part of the Chief Bus Operations Officer position. (Aufschauer Dep. at 58:8 ("[m]aintenance is a key part of the position"), attached as Plaintiff's S.J. Opposition Memo. Exhibit "G"; Diggs Dep. at 107:16 (concurring that maintenance was key part of Chief Bus Operations Officer position), attached as Plaintiff's S.J. Opposition Memo. Exhibit "D"). Plaintiff herself stated that maintenance issues were the main problem facing SEPTA's bus operations. (Conine Dep. at 89:13, attached as Defendants' S.J. Memo. Exhibit "A").
A review of plaintiff's deposition testimony reveals that what she actually said about the close connection between transportation and maintenance with respect to bus operations at her deposition was this: "Question: It was also reported by Mr. Diggs that during the interview your only concern was with Transportation and that you expressed that you did not have to interact with Maintenance issues and did not see how the two, Maintenance and Transportation, were connected. Answer: That's simply not true. I would never say something like that. . . ." (Conine Dep. at 74:8-16, attached as Plaintiff's S.J. Opposition Memo. Exhibit "A"). Plaintiff essentially repeated this same answer later in her deposition. (Conine Dep. at 77:10-23, attached as Plaintiff's S.J. Opposition Memo. Exhibit "A").
Plaintiff never testified at her deposition that she possessed the necessary expertise with respect to maintenance issues. To the contrary, plaintiff testified that "I don't know a lot about Maintenance. And so if my answers didn't cover Maintenance, well, that's because I don't have a lot of expertise in that area." (Conine Dep. at 73:6-9, attached as Defendants' S.J. Memo. Exhibit "A"). On that same issue, plaintiff said "So if it [my answer] was narrow because I didn't display a lot of knowledge or expertise in Maintenance, it's because I don't know." (Conine Dep. at 73:17-19, attached as Defendants' S.J. Memo. Exhibit "A"). Later in the deposition, plaintiff added that "[a]nd I was very honest about my experience in Maintenance is limited." (Conine Dep. at 86:25-87:1, attached as Defendants' S.J. Memo. Exhibit "A").
In support of its decision, SEPTA argues that Louis Curley, SEPTA's ultimate choice for Chief Bus Operations Officer, had a background in maintenance, while plaintiff did not, and that Curley "added a lot to fix the number one problem in bus operations, which was the poor maintenance." (Aufschauer EEO Interview at 2, attached as Defendants' S.J. Memo. Exhibit "E"). SEPTA also reiterates that plaintiff admitted to having only "limited" experience in maintenance (Conine Dep. at 86:25-87:1, attached as Plaintiff's S.J. Opposition Memo. Exhibit "A").
On reconsideration, the Court concludes that plaintiff has not presented a genuine issue of material fact with respect to SEPTA's position that plaintiff was not advanced to the final round of the decision-making process because she, inter alia, lacked maintenance experience. SEPTA has shown that maintenance was a major responsibility of the Chief Bus Operations Officer position. Plaintiff not only corroborated SEPTA's judgment that maintenance was a key issue facing SEPTA's bus operations but admitted that she had only limited maintenance experience. Moreover, there is no evidence that SEPTA's second reason for declining to advance plaintiff to the final round of interviews was a pretext for gender discrimination. See Cox v. Vogel, et al., No. 97-3906, 1998 U.S. Dist. LEXIS 11586, at *15 (E.D. Pa. July 30, 1998) (declining to find pretext where employee corroborated employer's proffered reasons for adverse employment decision). The Court will now address SEPTA's remaining proffered reasons for not advancing plaintiff in turn.
a. Plaintiff Lacked Familiarity with Subject Matter Relevant to the Chief Bus Operations Officer Position
First, SEPTA states that plaintiff did not advance to the final round of interviews because she lacked the necessary familiarity with certain subject matter relevant to bus operations that was covered in Question 5 of the first round of interviews. (Defendant's S.J. Memo. at 15-16; see also Diggs Dep. at 124:6-16, attached as Plaintiff's S.J. Opposition Memo. Exhibit "D" (referring to subject matter in Question 5 as "basic foundational stuff" and observing that plaintiff's poor performance on Question 5 was one of the reasons plaintiff did not advance to the final round of interviews)). SEPTA observes that plaintiff admitted in her deposition that she was not familiar with several of the topics covered in Question 5, including computer-aided dispatch systems, vehicle maintenance information systems, fleet profile, budget, and recruiting and training of mechanics. (Defendants' S.J. Memo. at 15-16; Conine Dep. at 84:10-89:5, attached as Defendants' S.J. Memo. Exhibit "A"). In response, plaintiff argues that SEPTA has placed excessive value on the answers to this question and, furthermore, that the information sought in this question is easily obtainable by reference to a computer file. (Plaintiff's S.J. Opposition Memo. at 12).
Question 5 of the first round of interviews read as follows: Briefly describe your familiarity with the following:
A. Your current labor contract
B. The challenges in the recruiting and training of mechanics
C. The role of the state police or other third party oversight body in conducting inspections
D. Vehicle Maintenance Information System
E. Your fleet profile (number and type of buses)
F. Your YTD Budget status and key issues
G. Your YTD Operator hiring/training status
H. Computer Aided Radio Dispatch System (Defendants' S.J. Memo. Exhibit "J").
Courts do not sit as super-personnel departments that reexamine an entity's business decisions. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332 (3d Cir. 1995). Employers are free to exercise their business judgment to identify the skills most desirable for an employee in a given employment position, even where that judgment is not wise or prudent. Fuentes, 32 F.3d at 765; see also Brenner, 2002 U.S. Dist. LEXIS 18494, at *26. An employee's judgment as to the importance of specific skills or qualities identified by an employer as desirable is irrelevant. Simpson v. Kay Jewelers, 142 F.3d 639, 647 (3d Cir. 1998).
The Court concludes first that SEPTA had the right to place a high level of importance on applicants' answers to Question 5. Brenner, 2002 U.S. Dist. LEXIS 18494, at *26. Second, plaintiff has failed to demonstrate that her response to that question does not support SEPTA's contention that she lacked familiarity with that subject matter. To the contrary, plaintiff admitted in her deposition that she lacked knowledge of the subject areas tested in Question 5 of the interview. ( See Conine Dep. at 84:16-21; 84:24-85:4; 85:9-15; 88:1-6; 88:20-89:2, attached as Defendants' S.J. Memo. Exhibit "A"). Plaintiff's admitted unfamiliarity with the specified subject areas clearly supports the legitimacy of SEPTA's argument that her lack of knowledge was a reason for not advancing her to the final round of interviews. Cox, 1998 U.S. Dist. LEXIS 11586, at *15.
Plaintiff correctly argues that when an employer engages in inconsistent treatment of similarly situated employees, such treatment raises a suspicion of pretext. See Goosby, 228 F.3d at 320 (denying summary judgment for employer who gave preferable position to individuals with similar evaluation scores to those achieved by plaintiff). However, plaintiff failed to produce any evidence that SEPTA inconsistently applied the criterion that individuals who advanced to the final round of interviews were required to demonstrate knowledge of the subject matter covered in Question 5. To the contrary, all five applicants who advanced to the final round of interviews scored significantly higher than plaintiff on Question 5. (Defendant's S.J. Memo. at 6-7). As a matter of fact, plaintiff's score on Question 5 was half or less than half of the score of any of the five candidates who advanced to the final round of interviews. ( Id.). Further, plaintiff's argument that the information sought in Question 5 was available by reference to a computer file is irrelevant in light of SEPTA's decision to deem significant a candidate's familiarity with this information, which is admittedly relevant to bus operations. See Simpson, 142 F.3d at 647.
In an argument similar to the claim that SEPTA improperly placed excessive value on the subject matter covered in Question 5, plaintiff argues that a suspicion of pretext arises because Cohen testified to the importance of accountability in the candidates' responses to Question 1 of the interview but did not include accountability as part of the suggested answer to that question, and praised Curley for discussing the concept during his interview. (Plaintiff's S.J. Opposition Memo. at 11). Given that an employer has the discretion to determine what qualities it seeks in its employees, Brenner, 2002 U.S. Dist. LEXIS 18494, at *26, the Court finds that it was not inappropriate for Cohen to decide that accountability was a desirable quality in a Chief Bus Operations Officer.
Given plaintiff's admitted lack of knowledge of the subjects covered in Question 5 and the fact that none of the finalists for the Chief Bus Operations Officer position scored lower than plaintiff on Question 5, the Court concludes that plaintiff has failed to demonstrate that SEPTA's main reason for not advancing plaintiff to the final round of interviews — inadequate responses to Question 5 — was pretextual.
b. Plaintiff Did Not Possess the Desired Perspective of a Chief Bus Operations Officer and Lacked Depth in Her Interview Responses
SEPTA states that plaintiff was not selected to advance to the final round of interviews because she failed to demonstrate an ability to think from the perspective of the Chief Bus Operations Officer position and gave narrow responses to the interview questions. (Defendants' S.J. Memo. at 18). In response, plaintiff argues that the interview process was overly subjective, lacked proper scoring standards, and did not include uniformly-asked follow-up questions. (Plaintiff's S.J. Opposition Memo. at 10-13). The Court concludes that the evidence presented by plaintiff in support of her arguments fails to demonstrate that the interview process was discriminatory or that SEPTA manipulated the process to disguise an employment decision driven by discriminatory motives.
First, employers may rely on their subjective perceptions in evaluating their employees' performance. Jones v. University of Pennsylvania, No. 00-2695, 2003 U.S. Dist. LEXIS 6623, at *18 (E.D. Pa. Mar. 20, 2003) (citing Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991)) (finding employers' reliance on their subjective perceptions of employee's performance permissible). An employment decision is not pretextual merely because subjective criteria were relied upon in arriving at the decision. Fuentes, 32 F.3d at 767; Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 527 (3d Cir. 1992); Snik v. Verizon Wireless, No. 03-2976, 2004 U.S. Dist. LEXIS 9527, at *32-33 (E.D. Pa. May 21, 2004); see also Goberman v. Washington County, CV-00-581-ST, 2001 U.S. Dist. LEXIS 7770, at *24 (D. Or. Apr. 20, 2001) ("an interview is . . . a subjective process in which a candidate is measured not only by experience, but also by demeanor, poise, and enthusiasm"). Supervisory positions in particular may require qualities not fully measurable by objective standards. Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981).
In this case, SEPTA admits that it relied on its interviewers' subjective perceptions of the candidates. (Diggs Dep. at 18:10-19:14, attached as Plaintiff's S.J. Opposition Memo. Exhibit "D"). SEPTA presented ample evidence that the interviewers did not subjectively believe that plaintiff possessed the perspective SEPTA sought in a Chief Bus Operations Officer. Aufschauer stated that plaintiff failed to tie the desired qualities of a Chief Bus Operations Officer back to herself. (Aufschauer Dep. at 17:21, attached as Plaintiff's S.J. Opposition Memo. Exhibit "G"). Aufschauer also stated that in her interview, plaintiff was not as strong as the other candidates. (Aufschauer EEO Interview at 2, attached as Defendants' S.J. Memo Exhibit "E"). Cohen stated that plaintiff did not give the interviewers confidence that she was "qualified to do the job" (Cohen EEO Interview at 4, attached as Defendants' S.J. Memo. Exhibit "P"), and that plaintiff needed to think from the perspective of the position she was seeking. (Cohen. Dep. at 60:15-19, attached as Defendants' S.J. Memo. Exhibit "I"). Diggs stated that plaintiff failed to give responses that were "global" to SEPTA. (Diggs EEO Interview at 2; attached as Defendants' S.J. Memo. Exhibit "O"). Based on the foregoing, the Court finds that the interviewers' reliance on their subjective perceptions of plaintiff was permissible, Jones, 2003 U.S. Dist. LEXIS 6623, at *18, and that SEPTA's interviewers amply demonstrated their subjective belief that plaintiff was not suited for the Chief Bus Operations Officer position.
The Court also rejects plaintiff's argument that the lack of objective scoring criteria warrants a jury trial on the issue whether a discriminatory bias tainted plaintiff's interview scores. Subjective scoring is permissible where an interview contains subjective questions. Mustafa v. Neb. Dep't of Corr. Servs., 196 F. Supp. 2d 945, 952 (D. Neb. 2002). Based on the evidence presented, the Court finds that SEPTA's subjective scoring of plaintiff's interview performance was not discriminatory. Id.
Further, plaintiff's allegation that there was no system for uniformly asking follow-up questions of the applicants does not demonstrate pretext or that SEPTA manipulated the interview process. Such a claim is distinguishable from the situation where a plaintiff does not receive the same "principal" questions as other applicants. C.f. Shesko v. City of Coatesville, 324 F. Supp. 2d 643, 650 (E.D. Pa. 2004) (finding that jury could infer that interview process at issue was sham from conflicting testimony concerning interview questions). Because plaintiff presented no evidence that male applicants were actually asked principal questions that were not asked of her, plaintiff's argument that there was no system in place to ensure uniform follow-up interview questions does not prove pretext.
The Court concludes that SEPTA was entitled to rely on the interviewers' subjective perceptions of plaintiff's interview performance. Plaintiff presented no evidence that SEPTA's decision that plaintiff did not possess the desired perspective for the Chief Bus Operations Officer and that plaintiff's responses to interview questions were too narrow was a pretext for discrimination. The evidence establishes that, while subjective in nature, SEPTA's interview process was not manipulated to camouflage an employment decision motivated by discrimination.
2. Additional Arguments
Plaintiff advances several other arguments concerning SEPTA's interview process and other circumstances surrounding her interview, alleging that these circumstances demonstrate that SEPTA's decision was pretextual. The Court does not find these arguments persuasive.
a. Diggs' Statement
Plaintiff argues that Diggs' statement that the fact that management positions within SEPTA's operations have historically been held by male employees demonstrates that SEPTA's decision not to advance plaintiff was motivated by SEPTA's bias against hiring female employees into such positions. (Plaintiff's S.J. Opposition Memo. at 4). Without additional evidence, however, Diggs' statement does not prove pretext on SEPTA's part.
Referring to the lack of female managers within SEPTA's operations, Diggs stated:
Over the years, that's how it has evolved because of — just the nature of the business. I think we have done a good job in working towards diversifying it, you know.
(Diggs Dep. at 122:15, attached as Plaintiff's S.J. Opposition Memo. Exhibit "D").
While evidence that a particular group has been historically underrepresented may be relevant to the issue of pretext, such evidence must be accompanied by an analysis of the qualified applicant pool or the flow of qualified applicants during the relevant time period. Ezold, 983 F.2d at 543; see also Jackson v. School Bd., No. 3:99-CV-642, 2000 U.S. Dist. LEXIS 4474, at *18 (E.D. Va. Mar. 15, 2000). Plaintiff did not present any evidence demonstrating that SEPTA has historically treated male applicants for managerial positions differently than similarly qualified female applicants for those same positions. Because plaintiff failed to present any such evidence, the Court concludes that Diggs' statement about the lack of female managers within SEPTA's operations does not demonstrate that SEPTA's reasons for not advancing plaintiff were pretextual. Ezold, 983 F.2d at 543.
b. Qualifications of Other Applicants
Plaintiff also argues that two of the other applicants who advanced to the final round of interviews — Joshua Gottlieb and Steven Wells — were not qualified for the Chief Bus Operations Officer position because they lacked the requisite experience and that SEPTA's decision to advance these two candidates to the final round of interviews demonstrates pretext. (Plaintiff's S.J. Opposition Memo. at 15-16). This argument is not supported by the record.
A comparison of candidates' qualifications is relevant to determine whether there is reason to believe that an employer's proffered reason for its employment decision is pretextual. E.g., Chock v. Northwest Airlines, Inc., 113 F.3d 861, 864 (8th Cir. 1997). For a plaintiff who seeks to prove pretext by demonstrating that an employer promoted a less-qualified applicant, "[t]he disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question." Hurst v. Jiffy Lube, No. 00-CV-133, 2000 U.S. Dist. LEXIS 17506, at *11-12 (E.D. Pa. Dec. 2, 2000) (citing Deines v. Texas Department of Protective and Regulatory Services, 164 F.3d 277, 280-81 (5th Cir. 1999)); see also Mustafa, 196 F. Supp. 2d at 953 ("minor differences in qualifications do not generate suspicion").
In this case, plaintiff argues that Gottlieb did not meet the minimum qualification stated in the Position Announcement that an applicant possess a minimum of ten years of increasingly responsible management/supervisory experience in various phases of transportation. (Plaintiff's S.J. Opposition Memo. at 15; see also Position Announcement, attached as Plaintiff S.J. Opposition Memo. Exhibit "E"). A review of Gottlieb's resume shows that Gottlieb held a number of positions in transportation and had worked in the profession for more than ten years. (Gottlieb Resume; attached as Plaintiff's S.J. Opposition Memo. Exhibit "J"). At the time of the interviews, Gottlieb had been the Director of Administration and Finance for SEPTA's Bus Operations for the majority of his time at SEPTA, where he was responsible for SEPTA's $140,000,000 Bus Operations budget, and had also acted as Chief Officer of SEPTA's North Operations for a period of approximately ten months, during which he was responsible for all transportation, vehicle maintenance, and plant maintenance activities in SEPTA's Surface Division's North Operations. Prior to his position with SEPTA, Gottlieb worked for five years for the Cape Cod Regional Authority overseeing all aspects of that Authority's operations. ( Id.). Given Gottlieb's background, the Court finds that SEPTA properly determined that he was qualified for the Chief Bus Operations Officer position.
Wells' background similarly supports SEPTA's determination that he was qualified for the Chief Bus Operations Officer position. (Plaintiff's S.J. Opposition Memo. Exhibit "K"). While plaintiff is correct in pointing out that Wells does not possess a college degree, the Position Announcement states that, "Bachelor's degree is preferred and advanced study recognized. Additional experience will also be weighed in lieu of formal education." (Plaintiff's S.J. Opposition Memo. Exhibit "E") (emphasis added). At the time of the interviews, Wells had worked for SEPTA for twenty-six years in a variety of departments — his resume shows that after beginning as a rail operator in 1975, Wells held eight other positions within SEPTA's organization, eventually rising to the position of Senior Director of Bus Operations. The descriptions of Wells' positions clearly show that he had experience with both budgeting and maintenance, and Wells served as the Acting Chief Bus Operations Officer — the position at issue in this case — before Curley was promoted to the position. (Defendants' S.J. Reply Brief at 5).
Given Wells' and Gottlieb's backgrounds, it is not contradictory or inconsistent for the interviewers to have determined that each of them was qualified to advance to the final round of interviews for the Chief Bus Operations Officer position. Upon comparison of plaintiff's qualifications with those of Wells and Gottlieb, the Court concludes that any disparities between plaintiff's qualifications and those of Gottlieb or Wells are not of such weight and significance that no reasonable person in the exercise of impartial judgment could have selected Gottlieb and Wells but not plaintiff to advance to the final round of interviews. (Conine Resume, attached as Defendants' S.J. Memo. Exhibit "B"). Hurst, 2000 U.S. Dist. LEXIS 17506, at *11-12. Thus, the Court determines that SEPTA's decision to advance Wells and Gottlieb to the final round of interviews without also advancing plaintiff was not pretextual. Id.; see also Deines, 164 F.3d at 280-81 (requiring that disparity in qualifications between applicants must "jump off the page and slap you in the face" to prove pretext).
c. Factual Dispute
Plaintiff argues that the dispute over whether she stated during the interview that she did not appreciate the connection between SEPTA's transportation and maintenance issues warrants a jury trial. The Court rejects this argument. First, the statement does not rebut SEPTA's main reason for not advancing plaintiff — her lack of knowledge of subject matter relevant to the Chief Bus Operations Officer position as covered by Question 5. Second, it does not raise a genuine issue of material fact as to plaintiff's lack of maintenance experience, the second of the proffered reasons for not advancing plaintiff to the final round of interviews. Finally, the statement does not implicate SEPTA's judgment that plaintiff's interview performance was deficient compared to that of the other applicants for the Chief Bus Operations Officer position, given that SEPTA advanced, see supra, multiple examples of plaintiff's deficiencies in the interview. Thus, the Court concludes that this is not a dispute such that "a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); c.f. Adams v. Borough of Ridley Park, No. 98-5530, 2000 U.S. Dist LEXIS 16376, at *23 (E.D. Pa. Nov. 8, 2000) (finding small inconsistencies insufficient to defeat summary judgment).
3. Cohen's Comment to Plaintiff
Finally, while plaintiff does not raise the issue in her submissions, at a meeting held to review plaintiff's interview performance, she claims that Cohen stated, "I'll never understand women." (Conine Interview Notes, attached as Defendants' S.J. Memo. Exhibit "Q"). The Court deems it appropriate to address that alleged statement by Cohen.
Remarks by decision-makers related to the hiring process may be considered by the court in a pretext analysis, but "[s]tray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision." Ezold, 983 F.2d at 545. On the other hand, comments made by decision-makers or by those with influence over employment decisions close to the time of an adverse employment decision may be considered probative of discriminatory animus. Antol v. Perry, 82 F.3d 1291, 1301-02 (3d Cir. 1996) (noting that fact finder in employment discrimination suit should be permitted to consider remarks made by individuals with influence over employment decision-making process as possible evidence of employer's discriminatory intent).
The Court finds that this was such a "stray remark." Cohen's comment was made after SEPTA had elected not to advance plaintiff to the final round of interviews, was made before he and plaintiff discussed her interview performance, and was made only in response to plaintiff's comment that he should understand how women think because he had daughters of his own. Compare Campetti v. Career Education Corp., No. 02-CV-1349, 2003 U.S. Dist. LEXIS 12202, at *29 (E.D. Pa. June 25, 2003) (finding that decision-maker's statement "with women like me around, men like you will never make it in corporate America" could be evidence of gender-based discrimination where statement allegedly made immediately before employer's decision to terminate plaintiff). Because of the lack of connection between Cohen's statement and SEPTA's employment decision, the Court concludes that Cohen's comment is no more than a stray remark and is not probative of discriminatory animus in the challenged decision-making process.
IV. CONCLUSION
The Court concludes that plaintiff has failed to demonstrate that SEPTA's proffered reasons for not advancing her to the final round of interviews for the position of Chief Bus Operations Officer — her lack of familiarity with specific subject matter related to that job, her lack of maintenance experience, and her unimpressive interview performance — were pretextual and that gender discrimination motivated SEPTA's decision. Accordingly, reconsideration of the Order and Memorandum of September 7, 2004, denying defendants' Motion for Summary Judgment is necessary to correct a manifest error of fact, and the Court grants the Motion for Reconsideration. Upon reconsideration, the Court grants Defendants' Motion for Summary Judgment.
An appropriate Order follows.
ORDER
AND NOW, this 17th day of March, 2005, upon consideration of Defendants' Motion for Summary Judgment (Document No. 11, filed March 1, 2004), Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (Document No. 14, filed March 26, 2004), Defendants' Reply Brief in Support of Their Motion for Summary Judgment (Document No. 17, filed April 9, 2004); Defendants' Motion for Reconsideration of Their Motion for Summary Judgment (Document No. 23, filed September 17, 2004), and Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Reconsideration (Document No. 24, filed September 27, 2004), for the reasons set forth in the attached Memorandum, IT IS ORDERED as follows:1. Defendants' Motion for Reconsideration of Their Motion for Summary Judgment is GRANTED;
2. The Court's Order and Memorandum dated September 7, 2004, in which defendants' Motion for Summary Judgment was denied, are VACATED; and,
3. Defendants' Motion for Summary Judgment is GRANTED.IT IS FURTHER ORDERED, by agreement of plaintiff, that plaintiff's claims against defendant, Bernard Cohen, are MARKED WITHDRAWN WITH PREJUDICE. IT IS FURTHER ORDERED that JUDGMENT IS ENTERED in FAVOR of the remaining defendant, Southeastern Pennsylvania Transportation Authority, and AGAINST plaintiff, Rosemary F. Conine.
IT IS FURTHER ORDERED that the Clerk of Court shall MARK the case CLOSED FOR STATISTICAL PURPOSES.