44 Fair empl.prac.cas. 977, 44 Empl. Prac. Dec. P 37,376 Matthew E. Jackson, Jr. v. University of Pittsburgh, David C. Sullivan and Wesley W. Posvar, in Their Official and Individual Capacities44 Fair empl.prac.cas. 977, 44 Empl. Prac. Dec. P 37,376 Matthew E. Jackson, Jr. v. University of Pittsburgh, David C. Sullivan and Wesley W. Posvar, in Their Official and Individual Capacities
Steven P. Fulton, Martha Hartle Munsch (argued), Reed, Smith, Shaw and McClay, Pittsburgh, Pa., for appellees.
Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and RODRIGUEZ, District Judge.*
OPINION OF THE COURT
A. LEON HIGGINBOTHAM, Jr., Circuit Judge.
1 This appeal requires us to determine whether summary judgment was properly granted for the defendants-appellees in an employment discrimination case. Because record evidence demonstrates the existence of genuine issues of material fact that must be resolved at trial, we determine that, in part, it was not properly granted. We therefore will reverse the judgment of the district court on appellant‘s federal claims concerning his discharge and remand them for trial.
I. BACKGROUND
2 Appellant Matthew E. Jackson, Jr., who is black, was hired on July 15, 1975 by appellee the University of Pittsburgh (“Pitt“) to work as an attorney in its legal department. Jackson continued in this position until January 3, 1984, when he was discharged by appellee David C. Sullivan, who had then been Pitt‘s general counsel, and Jackson‘s supervisor, for one year. Jackson thereafter filed an internal grievance with Pitt concerning his termination; he also complained to the Pennsylvania Human Relations Commission (“PHRC“), the Equal Employment Opportunity Commission (“EEOC“) and the Office of Federal Contract Compliance Programs (“OFCCP“), that his discharge was racially motivated.1 On February 1, 1985, Jackson commenced this action, alleging federal claims under Title VII of the 1964 Civil Rights Act,
II. THE GOVERNING LAW
3 We review grants and denials of summary judgment by applying the same test a district court should employ. Marek v. Marpan Two, Inc., 817 F.2d 242, 244 (3d Cir.1987); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977); see generally Bushman v. Halm, 798 F.2d 651, 656-57 (3d Cir.1986).
4 Inferences to be drawn from the underlying facts contained in the evidential sources submitted to the trial court must be viewed in the light most favorable to the party opposing the motion. The non-movant‘s allegations must be taken as true and, when these assertions conflict with those of the movant, the former must receive the benefit of the doubt.
5 Goodman, 534 F.2d at 573 (footnote omitted).
6 In a federal discrimination case such as this one, the governing law includes the “method of ... presumptions and shifting burdens of production” set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (“McDonnell Douglas“), and its progeny. Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir.1984).
8 Texas Dep‘t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (“Burdine“) (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824); see generally Robinson v. Lehman, 771 F.2d 772, 777 n. 13 (3d Cir.1985); Kunda v. Muhlenberg College, 621 F.22d 532, 541-43 (3d Cir.1980).
9 This Court noted recently, in the context of a federal age discrimination claim, that “a defendant‘s burden of production as the moving party on summary judgment generally is to show that the plaintiff cannot meet his [or her] burden of proof at trial.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 895 (3d Cir.1987) (in banc), cert. dismissed, --- U.S. ---, 108 S.Ct. 26 (1987). This burden on the moving defendant is not satisfied, however, “merely by showing the plaintiff‘s inability to prove by direct evidence that the defendant‘s proffered reason is a pretext for ... discrimination.” Id. (original emphasis). At the summary judgment stage, in other words, “all that is required [for a non-moving party to survive the motion] is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve [at trial] the parties’ differing versions of the truth....” First Nat‘l Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968). Further, because
10 intent is a substantive element of this cause of action--generally to be inferred from the facts and conduct of the parties--the principle is particularly apt that courts should not draw factual inferences in favor of the moving party and should not resolve any genuine issues of credibility.
11 Ness v. Marshall, 660 F.2d 517, 519 (3d Cir.1981) (original emphasis).
III. APPELLEES’ MOTION FOR SUMMARY JUDGMENT
12 Appellees’ motion for summary judgment, which the district court granted, sought judgment in its favor “in all respects.” App. at 791. Thus, while the district court‘s brief opinion is less than clear in explaining the precise claims to which its order applies, we have concluded that the district court entered summary judgment for appellees on Jackson‘s Title VII and Section 1981 claims concerning his discharge, on his similar federal claims concerning Pitt‘s processing of his grievance, and on his pendent state claims alleging fraud, defamation and invasion of privacy. We will address these distinct summary judgments in that order.
A. Pitt‘s Discharge of Jackson
13 Appellees make no contention that Jackson has failed to establish a prima facie case under the McDonnell Douglas method of proof. We note that (i) he belongs to a racial minority; (ii) he was employed as one of Pitt‘s in-house attorneys and was qualified for that position; (iii) he was discharged from that position; and (iv) his co-workers, who are white, were not discharged. The district court correctly found that Jackson established a prima facie case. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175, 179-80 (3d Cir.1985) (“A plaintiff alleging a discriminatory firing need only show that he [or she] was fired from a job for which he [or she] was qualified while others not in the protected class were treated more favorably.... Proof of discharge will establish a prima facie showing in a Title VII suit.“), cert. denied, 475 U.S. 1035, 106 S.Ct. 1244, 89 L.Ed.2d 353 (1986). Jackson, in other words, carried his “initial burden of showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were ‘based on a discriminatory criterion illegal under [Title VII].’ ” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978) (“Furnco“) (quoting International Bhd. of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977)); cf. EEOC v. Hall‘s Motor Transit Co., 789 F.2d 1011, 1015 (3d Cir.1986) (“an employer‘s decision to discharge an employee may superficially appear to be justified by legitimate business reasons and yet [may] have been motivated by racial prejudice“).
14 Under McDonnell Douglas, appellees have also fulfilled their ensuing burden of production “to articulate some legitimate, nondiscriminatory reason” for Jackson‘s dismissal. 411 U.S. at 802, 93 S.Ct. at 1824. The summary judgment record now before us includes depositions, affidavits, documents and other evidence supporting appellees’ position that Jackson “was simply a poor performer,” Brief of Defendants-Appellees at 21, who was, accordingly, dismissed from his job.2
15 The true dispute in this appeal concerns the third stage of the McDonnell Douglas method of proof: Has Jackson introduced sufficient evidence to demonstrate the existence of a genuine issue whether appellees’ “proffered justification is merely a pretext for discrimination“? Furnco, 438 U.S. at 578, 98 S.Ct. at 2950. The district court concluded that Jackson‘s record evidence does not create such an issue; it “f[ound] no evidence of racial animus but on the contrary not[ed] abundant instances of unsatisfactory work performance [by Jackson that Sullivan] might reasonably regard as sufficient cause for discharge....” Jackson, No. 85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986).
17 Additionally, as to the substantive legal tasks that appellees allege Jackson mishandled during his years of employment at Pitt, Jackson counters with claims that he was not the lawyer who was responsible for some of the matters in question, App. at 111-12 (Deposition of Matthew E. Jackson, Jr.), and that Sullivan refused Jackson‘s requests to bring in outside counsel to handle other specialty matters. Id. at 546-50 (same). In addition, Jackson claims that he was the only attorney in the office who had no secretary, id. at 63-64; 87, 96, 137, 542 (same), and that he alone was denied the assistance of less-experienced legal staff members who were otherwise available. Id. at 205-06, 542-44 (same). Such evidence supports the reasonable inference that Jackson was treated less favorably than his white colleagues in ways that could explain any “deficiency” in his performance. Cf. Bellissimo, 764 F.2d at 180 (trial court finding that Ms. Bellissimo proved pretext was “clearly erroneous because [she] failed to make any showing of disparate treatment and because [defendant] proved that its male attorneys were treated the same as she in the disputed areas“). It suffices, in short, to raise a genuine issue of fact whether Jackson‘s dismissal really had anything at all to do with his performance.
18 We make no claim to believe or to disbelieve Jackson‘s evidence. That, we emphasize, is wholly the province of the factfinder at trial. See Bushman, 798 F.2d at 660 (“While plaintiff‘s credibility may be challenged by opposing counsel at trial, it is not the function of the court to assume the role of the fact finder upon summary judgment.“); Graham v. F.B. Leopold Co., Inc., 779 F.2d 170, 173 (3d Cir.1985) (“What the district court chooses to infer or chooses not to infer is simply not relevant to consideration of a summary judgment motion.“); Fireman‘s Fund Ins. Co., 540 F.2d at 1178 (“[i]t is the function of the trier of fact alone ... to evaluate contradictory evidence“). We do note, and by reciting the deposition evidence in such detail we mean to demonstrate, however, that a factfinder reasonably could conclude that appellees’ position is mere pretext. Jackson‘s opposition to the summary judgment motion was therefore not based only upon “t[he] bare-bone allegations in h[is] brief and pleadings....” Alizadeh, 802 F.2d at 113; cf. Sola v. Lafayette College, 804 F.2d 40, 45 (3d Cir.1986) (affirming summary judgment where plaintiff “produced no evidence [beyond her allegations] that she was denied tenure in part based on her gender“); accord Kephart v. Institute of Gas Technology, 630 F.2d 1217, 1218 (7th Cir.1980) (per curiam) (affirming summary judgment for employer in age discrimination case where “the subsidiary facts plaintiff put forward as evidence ... [gave] no indications of motive and intent, supportive of his position, to put on the scales for weighing [--i]t was a wholly empty case“), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981); Pierce v. New Process Co., 580 F.Supp. 1543, 1546 (W.D.Pa.) (granting summary judgment for employer in age discrimination case where “plaintiff [was un]able to present any facts to indicate pretext or discriminatory intent“), aff‘d, 749 F.2d 27 (3d Cir.1984). It was, rather, based upon his own evidence and comprehensive testimony, and was sufficient to withstand the motion for summary judgment. See J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 617 (3d Cir.1987) (where “reasonable minds could differ[,] ... an issue of material fact remains ... for the trier of fact“); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir.1986) (race discrimination plaintiffs relied upon evidence including “their declarations” to survive employer‘s summary judgment motion); Walters v. President & Fellows of Harvard College, 645 F.Supp. 100, 102 (D.Mass.1986) (“plaintiff‘s contentions ... [placed] the underlying facts ... sufficiently in question that summary judgment is not warranted“) (emphasis added).
20 In today‘s climate of public opinion, blatant acts of discrimination--the true “smoking guns“--can easily be identified, quickly condemned and often rectified in the particular settings where they occur. Much of the discrimination that remains resists legal attack exactly because it is so difficult to prove. Discrimination victims often come to the legal process without witnesses and with little direct evidence indicating the precise nature of the wrongs they have suffered. That is one of the reasons why our legal system permits discrimination plaintiffs to “prove [their] case[s] by direct or circumstantial evidence.” United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3, 103 S.Ct. 1478, 1481 n. 3, 75 L.Ed.2d 403 (1983) (emphasis added); accord Maxfield v. Sinclair Int‘l, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986); Lewis v. University of Pittsburgh, 725 F.2d 910, 919 n.10 (3d Cir.1983), cert. denied, 469 U.S. 892, 105 S.Ct. 266, 83 L.Ed.2d 202 (1984). This record, unlike that in Molthan, contains both circumstantial evidence and Jackson‘s direct evidence from which a jury could reasonably infer that Jackson‘s performance as a lawyer was not deficient, that appellees’ claims to the contrary are mere pretext, and that race discrimination played a role in Jackson‘s discharge.5 Therefore, because “the issue of pretext turns on [Jackson‘]s credibility[, it] is not appropriate for resolution on a summary judgment motion.” Chipollini, 814 F.2d at 901; accord Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 865 (3d Cir.1986) (where “record contains more than simple accusations and speculation[,] ... there is sufficient evidence to put [the employer‘s] motivation in issue“); cf. Attorney Gen. of the United States v. Irish People, Inc., 796 F.2d 520, 523 (D.C.Cir.1986) (per curiam) (Bork, Scalia and Gesell, JJ.) (“affidavits from [nonmovant organization‘s] officers and staff,” which “District Court dismissed ... as conclusory and lacking particularity, ... were adequate to raise a genuine issue of fact in light of the nature of the Attorney General‘s evidence and the issue involved“).
B. Pitt‘s Handling of Jackson‘s Grievance
21 Count II of Jackson‘s complaint alleges that Pitt, in processing Jackson‘s grievance, intentionally deviated from the provisions of its Staff Handbook, provisions that Pitt had previously represented as applying to all of its employees, and that this deviation itself was racially motivated, in violation of Title VII and Section 1981. See App. at 11. Appellees answer, inter alia, that Jackson, who held a nonclassified staff position at Pitt, is not covered by the handbook‘s grievance procedure for classified employees. On appellees’ motion for summary judgment, the district court denied Jackson‘s claim, which it called a “procedural due process” claim, accepting instead appellees’ argument that Jackson is not covered by the Staff Handbook procedure.6 Jackson, No. 85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986).
22 Jackson has not addressed this aspect of the district court‘s judgment in either of his briefs or in his oral argument to this Court. Accordingly, we conclude that it has not been appealed. See generally Delaware Valley Citizens’ Council for Clean Air v. Pennsylvania, 755 F.2d 38, 40 n. 2 (3d Cir.), cert. denied, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54 (1985).
23 After disposing of Jackson‘s federal claims, the district court asserted that it was within “its discretion [to] decline to consider the pendent State claims....” Jackson, No. 85-0264, mem. op. at 2 (W.D.Pa. June 11, 1986). Convinced that these pendent claims “raise[d] no peculiarly difficult or doubtful questions of State law [that] should be reserved for disposition by State courts,” id., however, the district court also granted appellees’ motion for summary judgment on these claims.
24 We conclude that this aspect of the district court judgment also has not been appealed. The only reference to these claims is the final words on the final page of Jackson‘s brief, which asks us to remand “for trial on the pendent state claims.” Brief for Appellant at 50. This is insufficient to put the issue before us. See
IV. CONCLUSION
25 For the foregoing reasons, we will affirm the district court‘s denial of appellant‘s motion for summary judgment. We will reverse the district court‘s entry of summary judgment for appellees on appellant‘s federal claims concerning his discharge and remand them for trial on the merits. Costs will be taxed against appellees.