Brown v. J. Kaz, Inc.

Accordingly, appeal because this does question, a substantial we will present denying

affirm the District Court’s order a

Massey’s petition que- for writ of audita

rela.

Kimberly BROWN, Appellant KAZ, INC. Craftmatic and

J. t/d/b/a Pittsburgh.

No. 08-2713. of Appeals,

United States Court

Third Circuit. July

Argued 2009. Sept.

Filed: Although suggests galekeeping require- sive. Kessack that the writ one valid 2255’s querela may gap of audita fill a presented We note that ments. also Kessack apply where case such as Booker does not equal protection present considerations not review, retroactively on collateral retroac- here. tivity upon by prisoner of the rule relied

I. adjustable Craftmatic is distributor of products beds. sells its through representatives po- sales who visit tential customers’ homes to demonstrate attempt the beds and to make sales. In 2006, Brown, the summer of an African- female, responded American to a Craft- seeking matic advertisement repre- sales spoke sentatives and telephone twice Morris, Jay recruiting Craftmatic’s job. manager, regarding a Jennings, (Argued), Timothy Rufus A. Kolman, Timothy M. Kolman & Associ-

M. Morris invited Brown to attend a train- ates, Attorneys for Appellant. ing session at Craftmatic’s Pittsburgh, Pennsylvania, August office in 2006. Dur- Merchant, Hilary Taylor, William G. W. conversations, Brown, ing these a resident Gefsky, Monroe- (Argued), Papernick & Cleveland, Ohio, of told Morris that she ville, PA, Attorneys Appellee. Pittsburgh would take the bus to because preferred she not to drive in unfamiliar SLOVITER, AMBRO, Before: and places. deposition Morris testified his JORDAN, Judges. Circuit that he was concerned about Brown’s abili- ty transportation requirements to meet the OF THE OPINION COURT representative of the sales position light SLOVITER, Judge. Circuit unwillingness of Brown’s to to drive Pitts- burgh, but nonetheless invited her to train- Appellant Kimberly appeals Brown ing well-spoken because she was grant of judg- District Court’s showed enthusiasm for the position. Kaz, Inc., appellee ment favor of J. d/b/a (“Craftmatic”), Pittsburgh Craftmatic of session, Brown a training attended 8-10, 2006, on her discrimination claims August which was held from Title of Act Rights trainees, under VII the Civil of with two other Ronald Gibbs and §§ seq., Rinehart, U.S.C. 2000e et the Civil Daryl neither of whom was Afri- Act Rights U.S.C. can-American. Gibbs and Rine- Pennsylvania Human Relations Act hart were met at Craftmatic Morris. (“PHRA”), §§ seq. that, 43 Pa. Cons.Stat. 951 et during Brown contends initial meeting, Morris stated that “I know she grant will affirm the District Court’s We going problem” [Brown] and that summary judgment on Brown’s claims going to be a “She’s headache. She asks because, under Title and the PHRA as VII questions.” App. lot of concluded, the District Court Brown was contractor, an independent training manager, rather than Craftmatic’s Daniel Pesta, session, employee, training of Craftmatic and therefore out- conducted the dur- ing which the protections side the of those statutes. trainees were introduced to contrast, they product selling Brown’s claim under section 1981 the would be consideration, requires practices. part more as business As extended Craftmatic’s presents training, gave us with a of of the Pesta the trainees an claim matter complete the first impression assignment first this circuit. between vant, days training topic and second and another as to who initiated this of dis- App. at 4. cussion.” the second and third assignment between days; required the train- assignments Brown thereafter returned to the train- contracts complete ees to standard sales ing room. Morris entered the room and Pesta, According and similar activities. anything say told he had complete assign- Brown failed to both it, about she would not work for Craftmat- owner, ments. Craftmatic’s reported ic. Morris then the incident to Girty, deposition John testified at his him Girty and told that he did not want Pesta told him that Brown completed her Brown to be a sales representative. Girty assignments; Brown also contends that told Morris that he had used a bad choice Pesta, present of words. who was not at completed assignments. she her incident, Girty with event, following also met provided copy Pesta Brown with a the incident and also that believed Brown “Independent of Craftmatic’s Contractor permitted should not be to act as a sales Agreement” at day the end of the second Craftmatic, representative for although it training, signed of and Brown agree- unclear is whether he so informed at day training. ment on the final meeting. that Brown, Later the final training day, Pesta, meeting After with Morris and Gibbs and Rinehart took a break on a deck Girty decided that Craftmatic would not outside of Craftmatic’s office. ap- Morris representative. use Brown as a sales Pes- them, proached extended his hand to all ta informed Girty’s Brown of decision and three, shook hands with Gibbs and Rine- provided a check from Craftmatic to reim- hart, exchanged pleasantries with expenses burse her for the she incurred in However, them. for reasons that are un- attending the training session. clear, Brown refused to shake Morris’ Brown timely charges thereafter filed hand. Equal Employment discrimination with the The happened details of what next are (“EEOC”) Opportunity Commission disputed, although it undisputed that Pennsylvania Human Relations Com- Brown and argument. Morris had a heated mission. The EEOC issued a dismissal According to after she refused rights and notice of to Brown on March hand, stated, “Well, shake his Morris you and Brown then filed the instant ain’t but a nothing person anyway” alleging VII, black action violations of Title sec- “Well, you nothing ain’t tion 1981 and the PHRA but the N based on theories treatment, disparate App. word.” hostile work envi- 329. Brown states ronment, and asked, Following retaliation. dis- you after she “Are calling me a covery, the granted District Court sum- nigga,” Morris “smirked and shook his mary judgment to Craftmatic on all of Morris, head.” App. 329-30. on the Brown’s claims. hand, other deposition testified at his he told Brown that “not shaking man’s The District granted summary Court calling person hand is like a black a derog- judgment on the claims under Title VII atory calling name” and that “it’s like and the PHRA because Brown was an person black the N-word.” at 157- independent contractor and therefore out- exchange, 58. After this as summarized protections side the of those acts. On the Court, by the District “the engaged hand, two other the District Court concluded some discussion about slapping hitting or that Brown’s claims under section 1981 unclear, people, although it is but irrele- were not indepen- barred because of her Finally, granted the Court status. Craftmatic dent contractor summary judgment on prove that Brown could not Brown’s hostile held her contractual re- work environment claim because Brown that the termination of produced no evidence racial discrimi- violated section lationship Craftmatic regular pervasive nation was or at Craft- analy- the mixed-motive under either matic and on Brown’s retaliation claim Hopkins, sis of Price Waterhouse engaged any pro- because she had not 1775, 104 L.Ed.2d 268 U.S. 109 S.Ct. activity tected before her contractual rela- (1989), pretext analysis or of McDonnell tionship with Craftmatic was terminated. Green, Douglas Corp. v. U.S. timely (1973). appealed. Brown L.Ed.2d 668 Ac- Court, cording assuming to the even II. direct evidence of dis- produced

criminatory racial animus that was causal- jurisdiction The District Court had un ly Girty’s related to decision to terminate ju der 28 U.S.C. 1331. This court has was entitled employment, her risdiction under 28 U.S.C. 1291. “On an it summary judgment proved because grant from a appeal or denial of have been that the same decision would judgment, plenary our review is and we regardless of Brown’s race. made apply the same test the district court initially.” should have utilized Giles v. the Court concluded that Specifically, (3d Cir.2009). 318, Kearney, 571 F.3d 322 regarding had two concerns Brown may grant summary judgment “A court First, justified her termination. that only when the record ‘shows that there is Morris, Girty on the altercation with based genuine no issue as to material fact was concerned that “Brown would exhibit moving party and that the is entitled to in a customer’s inappropriate behavior ” judgment as a matter of law.’ (quot Id. App. home.” at 17. The Court reasoned 56(c)). ing Fed.R.Civ.P. We must con uttered no racial slurs “[h]ad Morris the strue evidence favor of the non- during argument, reported but the moving party, and judgment Girty, Girty would have same incident to enough must be denied if there exists evi atti- equally been concerned with Brown’s jury reasonably dence “to enable a to find repre- tude and behavior” because sales (cita for the nonmovant on the issue.” Id. sentatives must enter customers’ homes omitted). tion “Girty and would need to comfortable knowing that his sales could representative III. remove himself or herself from the alterca- A. Title VII and PHRA Claims swiftly escalating tion and it.” without Second, Girty 17-18. was con- contends that the District Brown admittedly concluding cerned “that who does erred in that an Court she was Craftmatic, to in unfamiliar could places, independent not like drive contractor of job perform traveling employee, of a sales rather than an and therefore by representative.” App. protected Title VII or the PHRA.1 Housing that the PHRA extends in the Brown also contends those who are included Fair However, independent VelocityExpress Act." Comm’n, v. Pa. Human contractors. Relations (Pa. only "independent applies PHRA contrac A.2d Commw.Ct.2004). position professions occupations are in or tors who as by [Pennsylvania] representative regulated Bureau of sales at Craftmatic does not fall Occupational categories, Professional and Affairs or within these and therefore she was party’s hiring paying role in Title hired is defined “employee” The term assistants; part an em is employed whether work as “an individual VII 2000e(f). In Nation party; ployer.” regular hiring 42 U.S.C. business of the Darden, a business; Co. v. wide Mutual Insurance hiring party is whether Employee Retire arising under benefits; case employee provision Act, Supreme Security Income ment party. of the hired the tax treatment provision an construed identical 323-24, (quotation Id. at S.Ct. 1344 princi agency law incorporate traditional omitted). 318, 323, 112 S.Ct. ples. 503 U.S. these Brown contends that a number of (1992); also see Walters L.Ed.2d Enters., Inc., employee an suggests factors she was 519 U.S. Metro. Educ. 211-12, conclude that 117 S.Ct. 136 L.Ed.2d we Craftmatic. (1997) favorably in a Title (citing correctly Darden the District Court determined case).2 VII independent an contrac- Brown was tor, employee. Although not an question of whether practice standard customers, prospective but Craftmatic required; inquiry are the skill merely representatives barred its from tools; and source of the instrumentalities making misleading or statements. false work; the duration of the location of the Otherwise, provided only rec- relationship parties; between regarding ommendations how the sales right to hiring party whether the has the not “a process proceed should and canned assign projects additional to the hired script.” with agree 373. We hired party; party’s the extent of the these were District Court controls long when and how to discretion over work; minimum that a needs to corporation the method of “the payment; 32, (3d Cir.1983). hybrid only ap- protections of the PHRA F.2d The entitled to the employee id. at significantly she was an of Craftmatic. See proach not different than the previously nn. 7-8. We have held that approach adopted in Darden because it “fo- "[cjlaims interpreted under the PHRA are employer’s right to control the cuses on the claims,” coextensively with Title VII Atkinson employee important factor in as the most 447, LaFayette College, 454 n. 6 v. 460 F.3d determining employee (quota- status.” Id. Cir.2006), (3d an and it follows that Brown is Inc., omitted); Bally, v. tion see also Frankel only employee Craftmatic under the PHRA (2d Cir.1993) (noting F.2d if she is one under Title VII. hybrid law and standards both the common hiring place "greatest emphasis their on Darden, this court held that a 2. Prior to party's right to control the manner and 'right "hybrid con- of the common law to accomplished” means which the work is and the 'economic realities' trol' standard even the law standard and that common applicable standard" in cases under the Fair may "an consider as relevant individual's governed the determi- Labor Standards Act upon hiring par- dependence economic an an em- nation of whether individual was Accordingly, ty”). we need not dwell on the ployee independent or contractor under the Zippo. Age Employment impact Act and Discrimination in of Darden on our Co., Mfg. Zippo E.E.O.C. v. Title VIL Therefore, PHRA. her termination product did quality its maintain services, consistency protections in its business fall within the of either statute. should not be and therefore practices,” B. Section 1981Claims an Brown into em- to transform

sufficient ployee. App. threshold, At the we must determine pursuant Brown’s claims to sec whether Moreover, in then- the Darden factors tion like her claims under Title VII was not an totality suggest that Brown PHRA, and the are barred because of her Brown had to employee of Craftmatie. independent as an contractor. Al status ap- equipment own for sales provide her previously we decided the though have massage a (except for demon- pointments issue, at least three of our sister courts of which she was tool and a DVD for stration independent have held that an con appeals office pay deposit), her own required may bring a discrimination claim tractor transporta- and her own means of supplies, against entity under section 1981 provided Craftmatie appointments. tion to ADS, Taylor which she contracted. See v. space paid her on Brown with no office (7th Inc., Cir.2003); 327 F.3d Brown was also only. basis commission County, Fulton F.3d Webster pay expenses, for her own required (11th Cir.2002); Danco, Inc. v. Wal- insurance, liability and was re- including (1st Stores, Inc., 178 F.3d 13-14 Mart arising all taxes payment sponsible Cir.1999). permitted from her work. Brown was (within negotiate price on her sales certain provides The text of section 1981 limits) customers on her own. and to solicit persons ... shall that “all have the same only Finally, assign could Craftmatie to make and enforce contracts right appointments and no other Brown sales enjoyed by ... as is white citizens.” 42 work. 1981(a) added).3 (emphasis U.S.C. itself, 1981 “does not limit or section that Brown was not Our conclusion refer, contracts but even is reinforced employee of Craftmatie therefore in embraces all contracts and parties’ “Independent the terms of the by which ... inde a[n] cludes contracts Agreement,” clearly pro which Contractor ... pendent provides contractor service to an representative that the sales was vided Danco, another.” 178 F.3d We agreement, contractor. “The independent that agree thus with the decisions hold em dispositive plaintiffs of the while may bring independent that an contractor status, that strong is evidence ployment for a cause of action under section 1981 contractor.” independent was an she Co., Inc., occurring scope discrimination within the Holtzman v. World Book (E.D.Pa.2001); independent relationship. of the contractor 251, 256 see also F.Supp.2d 1290, 166 F.3d Chrysler Corp., Adcock v. Turning to the merits of Brown’s section Cir.1999). (9th claims, that previously we have held a claim under sum, of the' substantive elements of employee was not an Brown generally are identical to the Title or the section 1981 purposes of VII Craftmatie Further, 1981(b). correctly Appellant notes that she phrase con- 3. the "make and enforce despite the fact that protected broadly to include "the tracts” is defined modification, actually begun work. See ter- she had never making, performance, Pizza., McDonald, contracts, 546 U.S. enjoyment Inc. v. Domino’s mination of and terms, 470, 476, 1246, benefits, 163 L.Ed.2d 1069 126 S.Ct. privileges, conditions all (2006). relationship.” contractual U.S.C. of the employment an elements of discrimination We focus on the mixed-motives Title v. Resorts claim under VII. See Schurr analysis under Price Waterhouse. This Hotel, Inc., 486, In t'l 196 F.3d court has held that Justice O’Connor’s con (3d Cir.1999). Here, primary Brown’s curring opinion “represents holding claim is that Craftmatic’s decision to ter fragmented in that Court” ease. Fak independent minate her contractor status Aetna, Inc., 335, ete v. 308 F.3d 337 n. racially discriminatory resulted from a mo (3d Cir.2002). if Accordingly, improper tive and therefore was under “by shows direct evidence that an illegiti either Price Waterhouse mixed-mo mate criterion awas substantial factor in analysis Douglas tives or the McDonnell decision,” [employment] the burden analysis.4 pretext The District re shifts to the defendant “to convince the jected claims under both theories likely trier of fact that it is more than not because, assuming pro even that Brown the decision would have been the duced direct evidence of racial animus same absent consideration of illegiti causally termination, was connected to her Waterhouse, mate factor.” Price 490 U.S. Craftmatie demonstrated it would 276, (O’Connor, J., 109 S.Ct. 1775 conc have made the same decision regardless of her race. urring).5 However, brought 5(g)(2)(B). although Brown also claims based on hostile the Civil work environment and retaliation theories. Rights Act of 1991 amended section 1981 in agree we with the District Court ways, other it did make the mixed-motive summary judg- that Craftmatie was entitled to applicable amendments described above ment on both claims. As to her hostile work Therefore, section 1981 actions. Price Water- claim, simply environment Brown failed to house, and not the 1991 amendments to Title provide any evidence of "harassment so VII, case, controls the instant and Craftmatie pervasive severe or that it the condi- alter[ed] complete liability has a defense to if it would [her] tions of createfd] have made the same decision without consid abusive work environment.” Weston v. Penn- eration of Brown's race. See Mabra v. United (3d Cir.2001). sylvania, 251 F.3d Food & Commercial WorkersLocal Union No. claim, Similarly, as to her retaliation (11th 176 F.3d 1357-58 Cir. failed to adduce evidence that she en- 1999). gaged statutorily protected activity. See Phila., City Second, Moore v. 461 F.3d 340-41 prior argument, to oral request- we (3d Cir.2006). parties impact, any, ed that the address Supreme of the Court's recent decision in following Supreme

5. Two events Court's Servs., Inc., -, Gross v. Fin. FBL -U.S. complicate decision in Price Waterhouse (2009), 129 S.Ct. 174 L.Ed.2d 119 on application of that decision to this case. application of Price Waterhouse to claims First, Congress passed Rights the Civil Act of under section respons- 1981. In their written to, cases, response among 1991 in other Price argument, parties es and at agreed oral the Waterhouse, thereby amended Title VII to Gross, rejected application which applicable set forth standards to mixed-mo- the Price Waterhouse framework to un- claims Specifically, tive cases under Title VII. Age Employment der the in Discrimination amendments to Title VII made clear that an ("ADEA”), impact Act has no on this case. employment practice "unlawful is established Accordingly, we impact, need not decide the complaining party when the demonstrates any, if of Gross on section 1981 here. We motivating any that race ... was a factor for only statutory note that Gross focused on the employment practice,” 42 U.S.C. 2000e- 2(m), text of the ADEA and concluded that Con- employer-defendant and that an has a gress’ phrase age” use of the partial "because of ... affirmative defense that limits the rem- plaintiff meant that "the plaintiff edies available to the retains the burden of if the defendant persuasion age can show that it "would have taken to establish that was the the same 'but- impermissible employer’s action in the absence of the for’ cause of the adverse action.” motivating factor.” 42 U.S.C. 2000e- 129 S.Ct. at 2350-51. Section howev- Thus, present discriminatory cess that reflect a or retal- Brown must first “direct discrimination,” which this evidence of iatory type complained animus of the of in as “evidence sufficient to court has defined suit, if even the statements are not jury to find that the decision allow the made at the same time as the adverse negative reli- placed makers substantial decision, and thus constitute reaching in plaintiffs race] ance on [the only an im- circumstantial evidence that Fakete, their decision to fire [her].” substantially permissible motive motivated Here, F.3d at 338. the District Court Fakete, the decision.” 308 F.3d at 339. had presented assumed that Brown such Thus, Craftmatic was entitled to sum on the incident be- direct evidence based mary judgment only proved if it “that if and Morris. tween Brown part process, had not been of the [race] its Indeed, in taking the evidence concerning [termination] [Brown’s light must favorable to contract] would nonetheless have been the that after Brown refused to record shows Waterhouse, same.” Price at 490 U.S. their during shake Morris’ hand interac (O’Connor, J., 109 S.Ct. 1775 concur day training, third Morris tion on the ring). Significantly, “proving that stated, “Well, you nothing ain’t but the N justified same decision would have been word,” App. responded at in the proving is not the same as that the affirmative when Brown asked him he same decision would have been made.” Id. calling “nigga,” App. was her a at 329-30. 252, 109 S.Ct. 1775. simply “stray These were not remarks.” Waterhouse, Price 490 U.S. at The District Court concluded that J., (O’Connor, concurring). burden, Craftmatic satisfied its but several incident, Morris, of the Within minutes reasoning pro- elements of the Court’s are recruiting manager who was the for Craft First, Girty, blematic. it noted that matic, any say told Brown that if he had ultimate decisionmaker regarding Brown’s permitted be the matter she would not termination, decided to terminate her con- reported work for the inci Pesta, tract speaking after Craftmatic’s Girty, dent to Craftmatic’s owner. Pesta, training manager, and that “who is decided, upon then Morris’ recommenda alleged to have against no racial animus tion, to terminate Craftmatic’s contractual Brown, ... agreed that Brown should not relationship with Brown without ever permitted representa- to act as a sales speaking to Brown or to the other trainees tive.” depo- his present during who were incident. As sition, Girty pro- stated that Pesta did explained, we have “one form of evidence him vide that led to persuasion shift sufficient to the burden information his decision to terminate contract. under Price Waterhouse is statements of person decisionmaking pro- rely involved Craftmatic cannot on Pesta’s er, statutory suggest plaintiff include does not the "because of” lan- terms of text Instead, guage prima used in the ADEA. section has made out a facie case that section broadly provides persons 1981 more that "all 1981 was violated because the has right” right enjoyed ... shall have the same to make and “the same as other similar- However, enjoyed ly persons. by enforce contracts ... as is white situated if the defen- 1981(a) (emphasis proves citizens.” 42 U.S.C. dant then that the same decision Indeed, added). regardless of the Price would have been made of the use Waterhouse race, has, effect, light plaintiff's then the in framework makes sense in of section plays any enjoyed right” similarly 1981's text. If race role in a chal- "the same as situated defendant, lenged plain persons. a advisability of retain- The District Court also concluded regarding views racial “[h]ad Morris uttered no slurs dur- representative a as ing Brown as sales ing argument, reported but the same Girty that would have made the evidence Girty, Girty incident to would have been regardless same decision of Brown’s race. equally concerned with Brown’s attitude Next, the District Court noted that Gir- App. and behavior.” a ty was concerned “that who admit- fact significance finder could view the tedly in unfamiliar does not like drive comments that Morris’ as evidence Morris’ job places, perform could not of a Girty recommendation to that Brown’s traveling representative.” App. sales contract be terminated was motivated problems 17. There are several Thus, racial animus. argues, as Brown on Craftmatic’s reliance this evidence as question is “not whether the same decision proof Girty that would have made the would have been made had Morris not regardless same decision of Brown’s race. [Brown,] made the comments to rath- but importantly, Most Morris and Pesta were er, would the same decision have been in aware that Brown did not like to drive made race was taken out of [Brown’s] unfamiliar places prior to the incident be- equation.” Appellant’s Br. at 38. Indeed, tween Morris and Brown. Morris Indeed, the District essentially was made driving pref- aware concluded that Craftmatic was entitled to during erences their initial phone conver- because, terminate Brown’s contract fol sation but still invited Brown to attend the lowing very what were at the least racial Pesta, training Similarly, sessions. de- remarks, ly engaged insensitive she in a spite knowledge his of her driving prefer- heated verbal altercation with Morris. ences, Independent entered into the Con- Although the District surely Court was Agreement tractor with Brown on behalf Girty correct that justifiably “would be Indeed, of Craftmatic. Pesta testified at that represen concerned one of sales [his deposition his that the “fact that [Brown] participate tatives] would a heated ver customer, came in exchange” on bus and of itself didn’t bal with a a fact may finder conclude that bearing” have on whether Brown the incident be was tween legiti Morris and Brown could not good representative sales candidate and mately form the basis such a concern that Brown him informed that she had a given Morris’ discriminatory comments. car. App. at 378-79. a reasonable Nothing in suggests the record that jury could infer that neither Morris nor Brown would have conducted herself as Pesta would have recommended termi- she did but for Morris’ comments.6 nation of Brown’s contract to Girty be- preference against cause of her driving Finally, although the District Court did places. unfamiliar Their prior conduct rely ground, on this Craftmatic con- suggests the incident they believed may tends we affirm the that Brown repre- could serve as a sales judgment order because Pesta recom- sentative notwithstanding preference. Girty mended to that Brown’s contract be 6. Brown did day pre- refuse to shake Morris’ hand me that ... would have ever been statements, improper before made Morris sented to one of our customers." but the District Court did not conclude that testimony compel 362. This does not Girty would have terminated her contract Girty inference that would have terminated based on that refusal in and of itself. simply Brown’s contract on the basis of her deposition stated at his that his concern was refusal to shake Morris’ hand. that Brown's "behavior as it was described to summary-judg- the District Court’s her failure to com- verse light in terminated claim under ment order as Brown’s training assignments. plete her termination 1981 that Craftmatic’s above, section Girty deposi- at his stated as noted by imper- of her contract was motivated any give him infor- that Pesta did not tion racial animus. missible the decision to on he based mation which contract, but rather Brown’s terminate JORDAN, Judge, concurring. Circuit the decision based (Girty) made

that he In- his discussion with Morris. entirely on in judgment I concur in the this case later deed, further that Pesta stated entirely agreement am almost in with her completed had him that Brown told Majority, in the but I write my colleagues did not have he assignments my view con- separately express with her work. Craftmat- problems Major- trary to dicta in footnote five of the rely on this evidence to demon- ic cannot Opinion, Supreme Court’s ity the decision to it would have made strate — Services, in v. F.B.L. Financial Gross regardless Brown’s contract terminate U.S.-, 174 L.Ed.2d 119 her race. (2009), may impact have an on our well concerning analytical ap- emphasize precedent that we important It is proach to be taken discrim- proven that Brown has holding we are not I can- ination cases under 1981. While What her case of racial discrimination. say certainty, particularly when disputed that there are she has shown is issue, joined the parties have not on issues material to facts and inferences analysis implica- does have Gross conclude that the Dis disposition. We cases, for I am not as sure as tions granting erred in trict Court Majority appears to be that it does not. summary judgment on Brown’s section termination was moti 1981 claim that her Gross, concerning Age In a case racial animus because there re vated in Employment Act Discrimination jury regarding wheth questions main for (“ADEA”), Supreme bypassed would have terminated er Craftmatic originally grant- it the issue on which had contract consideration of absent certiorari, i.e., ed “whether must therefore reverse the her race.7 We will direct evidence of discrimination ‘present grant judg District Court’s in order to obtain a mixed-motive instruc- claim and ment as to the section 1981 in a discrimination tion non-Title VII proceedings. remand for further case[,]’” (quoting petition id. at 2348 certiorari), more funda- and went to the

IV. issue of “whether the burden of mental reasons, party defend- persuasion we will ever shifts For the above-stated summary judg- ing alleged mixed-motives discrimina- affirm the District Court’s brought claim under the ADEA.” Id. order as to all of Brown’s claims tion ment burden-shifting that the PHRA as well as The Court decided under Title VII and the developed framework that had Title VII claims for a hostile work her section 1981 Hopkins, will re- cases under Price Waterhouse environment and retaliation. We rejection Court’s conclu- light the Dis- en our of the District of our decision to reverse proved, as a matter of summary-judgment order based sion that Craftmatic law, trict Court’s analysis, have terminated Brown's we need not that it would on the Price Waterhouse race, regardless of Brown should analyze pursuant contract her separately Brown’s claim pursue both theories on remand. Douglas pretext analysis. Giv- be able to the McDonnell 186 ” 228, 1775, of[,]’ Gross,

490 U.S. 104 L.Ed.2d count (quot- S.Ct (1989), applicable in ADEA is ing Webster’s Third New International cases, despite years prece of lower court (1966)), Dictionary plain meaning the contrary, e.g., King dent to the v. United statutory of the ADEA’s text requires (8th Cir.2009) States, 553 F.3d pure standard, “but for” causation with the (“Under ADEA, employers the are forbid plaintiff bearing the burden of proving taking den from ac adverse that, preponderance of the evidence but against employees tions because of their defendant-employer’s for the unlawful mo- age.... presents Where the di tive, complained-of employment action discrimination, rect evidence of the court would not have occurred. Id. 2351. analyzes her claim under the mixed-mo That straight-forward allocation of the tives framework established Price Wa proof burden of in keeping with “the ”); Hopkins.... terhouse v. Machinchick that, ordinary default rule” when a statute Power, Inc., (5th v. PB 398 F.3d 345 Cir. is silent about the proof, “plain- burden of 2005) (Plaintiffs proceeding under tiffs bear failing prove the risk of their “presenting ADEA age direct evidence of (internal quotation claims.” Id. cita- may proceed discrimination under omitted). tions analysis ‘mixed-motive’ set forth in Price Hopkins.”)] Waterhouse v. v. E.E.O.C. case, present Majority con- Co., Inc., Casket 364 F.3d that, despite foregoing cludes Warfield-Rohr instruc- (4th Cir.2004) that, 164 n. 2 (noting Gross, VII-style tion from Title burden following VII, the amendment of Title shifting naturally §in controls 1981 cases. “ADEA subject mixed-motive cases remain it, Majority § As the sees because burden-shifting rules of Price Wa does not contain the same of’ “because (citation omitted)); Vesprini terhouse.” ADEA, clause found simply Gross is Services, Inc., Flooring Shaw Contract 315 inapposite. irony There is an here. While (1st Cir.2002) F.3d 40-41 (applying recognizing a textual distinction between claim). Price Waterhouse to ADEA § the ADEA and the Majority’s ap- Laying special emphasis on avoiding as- proach ignores the textual distinctions be- sumptions in statutory interpretation, Moreover, § tween Title VII and it Supreme Court said that it had to be ignores the fundamental instruction in “careful not to apply applicable rules un- analytical Gross that constructs are not to der one statute to a different with- statute simply transposed from one statute to out careful and critical examination.” thorough another without a thoughtful Gross, 129 (quoting S.Ct. at 2349 Federal analysis. Even when there has been such Holowecki, Express Corp. v. 522 U.S. analysis, arising Supreme later 1147, 1153, 128 S.Ct. 170 L.Ed.2d 10 precedent may require reevaluation. (2008)). Then, looking language to the true, course, It is that we are bound ADEA, it determined since the and, precedent our own as Majority says

statute “[i]t shall be unlawful ... rightly recognizes, prior opinions our indi fail or refuse to hire discharge any or to cate that 1981 claims must be analyzed individual or otherwise discriminate because under the same framework age[,]” of such individual’s as Title VII 623(a)(1), U.S.C. and since claims were under “[t]he words Price Waterhouse be ‘because ‘by of mean reason of: on ac- fore the 1991 amendments to Title VII.8 Rights 8. The 1991 Civil Act amended Title VII to allow for mixed-motive claims where a to decision termi- to whether Craftmatic’s v. Resorts (citing at 182 Schurr Maj. Op. (3d animus, Hotel, Inc., by F.3d nate her was tainted racial Int’l Cir.1999)). Nevertheless, quite it seems to on Craftmatic demon- burden will be that, language given the broad possible that it have made jury to a would strate Gross, a in Supreme Court chosen irrespective the same decision precedent of our re-examination critical Brown’s race. say to presume in order.9 I do

may be may turn re-examination

how such that, my col though note only I

out. § lack of 1981’s are untroubled

leagues though they provision and

a mixed-motive analysis that the Price Waterhouse

assert § onto 1981 because

may grafted sug statutory text language of

“plain 5), I am less (Maj. HELEVA, Appellant at n. Op. as much gests” Daniel Arthur they or suggestion see perceive to able v. trumps it what the statute accept that to actually says. BROOKS; M. PA Mrs. State Warden County Attorney General; Monroe § on our impact of Gross

Since Attorney. District by the has not been tested precedents with- and we are thus process adversarial No. 07-4118. how, if considering a basis for proper out in allocation of the all, change Appeals, States Court of United case, I might affect this proof burden of Third Circuit. Majority agree with am left 12, 2009. Argued March Waterhouse stan- consistent with Price dard, direct evidence presented has Sept. Filed: 2009. and, mixed-mo- under a discrimination an issue that must analysis, has raised tive short, by jury. because

be considered fact as raised a triable issue of

Brown has Rights the Civil Act of 1991 the ADEA under that race was "a moti- plaintiff demonstrates Gross, challenged employer's in it has vating for the instructive factor” was considered 2000e-2(m). No analo- 42 U.S.C. respect action. 1981. been seen to be so 1981. gous was made to section amendment v. Food & Commercial See Mabra United Congressional viewing the lack of Rather than No.1996, 176 F.3d Local Union Workers oversight, that we Gross instructs action as Cir.1999) (”[T]he (11th mixed-mo- regard Congress's decision to amend should apply Title VII do not tive amendments to amending a statutory provision one without claims.”). § 1981 Gross, provision deliberate. separate as ("We ignore Congress’ at 2349 cannot statutory analysis of the ADEA Beyond its provi- VII’s relevant to amend Title carry may implications changes to the but not make similar sions cases, questions raised § 1981 the Court also statutory Congress amends one When ADEA. burden-shifting general, saying about another, presumed provision it is but Price Water- the deficiencies of “[w]hatever intentionally.”); have acted Glanzman cf. retrospect, it has become evident house Metropolitan Mgmt. Corp., 391 F.3d years was decided that its since that case (3d Cir.2004) (concluding Civil that "the n. 3 ap- burden-shifting difficult to framework is apply to ADEA Rights 1991 does not Act of Gross, S.Ct. at 2352. cases”). ply.” not to amend Much as the decision notes Craftmatic’s “the employee is an turns on individual assign appointments to its sales was to control the manner hiring party’s right representatives, representatives such could accom product means which the appointments. also schedule their own Darden, plished.” 503 U.S. notes that made Brown also omitted). (quotation As the representa- recommendations to its sales in Darden: Court summarized regarding appropriate statements to tives the other factors relevant to this Among

Case Details

Case Name: Brown v. J. Kaz, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Sep 11, 2009

Citation: 581 F.3d 175

Docket Number: 08-2713

Court Abbreviation: 3rd Cir.