NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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NO. 10-2169
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WILLIAM P. BURROWS; OTTO G. BARTON, II;
CHRIS WILLIAM BENDER; TERRY WALTER,
Appellants
v.
TOWNSHIP OF LOGAN
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On Appeal from the United States District Court
For the Western District of Pennsylvania
(D.C. Civil No. 3-05-cv-00458)
District Judge: Hon. Kim R. Gibson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
February 7, 2011
BEFORE: JORDAN, GREENAWAY, JR., and
STAPLETON, Circuit Judges
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(filed: March 2, 2011 )
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OPINION OF THE COURT
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STAPLETON, Circuit Judge:
The District Court granted summary judgment to defendant Logan Township,
Pennsylvania (“the Township”) on the Age Discrimination in Employment Act
(“ADEA”) claims brought by Officers William Burrows, Otto Barton, Chris Bender, and
Terry Walter (collectively, “Plaintiffs”), of the Township Police Department (“the
Department”), after they were denied promotions. Plaintiffs appeal. We will affirm.
I.
A.
The Township retained the Police Education Research Forum (“the PERF”) to
conduct an assessment of the Department, and the PERF issued two reports containing a
total of thirty-six recommendations, including that the Department “implement a
promotional process in order to fill much needed vacant supervisory positions.” App. at
201. As a result, the Township Board of Supervisors (“the Board”), which was
comprised of Frank Meloy, Jerome Fulare, and Diane Meling, authorized a three-part
promotional process (an application, written test, and oral interview) and announced that
two officers would be promoted to the rank of sergeant. The Board issued a notice
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describing the minimum qualifications and application process. Eight officers, including
Barton, Bender, and Walter, applied. Burrows did not apply.
Thereafter, Burrows and Barton, along with Officer John Flinn, submitted a
written grievance stating that “eleven [of the Department’s twelve officers] voted to
grieve the [promotion] process as it was deemed to be unfair.” Id. at 132. At an
executive session of the Board, Township counsel recommended, due to the grievance,
that the new promotional process be scrapped and that the Board revert to simply
appointing persons to the sergeant positions. The Board accepted this recommendation;
decided, based on the advice of Police Chief Ronald Heller, that three, rather than two,
sergeants be appointed; and promoted Officer Flinn (then fifty-five years old), Officer
David Hoover (then thirty-nine years old), and Officer Kenneth Patterson (then thirty-
seven years old), all of whom had applied. At the time of the promotions, Burrows and
Barton were fifty years old, Bender was forty-one years old, and Walter was forty years
old.
Supervisor Meloy initially supported Officer Flinn, Officer Patterson, and
Burrows, because “I thought they were the best officers to implement PERF ideas,” id. at
282, including those dealing with community policing and problem-solving. However,
Supervisors Fulare and Meling were not in favor of Burrows because he had not applied,
and so Supervisor Meloy in the end supported Officers Flinn, Patterson, and Hoover.
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Supervisors Fulare and Meling also supported Officers Flinn, Patterson, and
Hoover. Supervisor Fulare stated that Officer Patterson “came across as an honest
person,” and “as I recall he was a proponent of community policing,” id. at 307, one of
the PERF recommendations. Supervisor Meling chose Officer Hoover because he “had
assumed some of the responsibilities of an investigator, even though he wasn’t given
those duties,” id. at 289, and she did not support Plaintiffs because they were in a group
of officers who, according to the PERF, “didn’t seem to have the ability to work as a
group to solve problems,” and were instead “working individually to deal with issues.”
Id. at 291. In addition, Barton had been identified as being resistant to the PERF
recommendations, and “I was not interested in promoting somebody who really was not
buying into the, into implementing the recommendations that PERF had recommended.”
Id.
B.
Burrows filed suit in the District Court for the Western District of Pennsylvania,
alleging that the Township “failed and refused to consider [him] for the position of
Sergeant because of his age,” in violation of the ADEA. Barton, Bender, and Walter then
filed a separate complaint asserting the same claim against the Township. The Township
filed summary judgment motions with respect to both complaints, contending that
Plaintiffs had failed to establish a prima facie case of age discrimination. The District
Court denied both motions.
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The cases were consolidated, and the Township again filed a motion for summary
judgment, arguing that Plaintiffs failed to show that the Township’s proferred reasons for
denying promotions to Plaintiffs were a pretext for age-based discrimination. The
District Court granted summary judgment to the Township on this ground. Plaintiffs now
appeal.
II.
The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331.
We have jurisdiction under 28 U.S.C. § 1291.
We review the District Court’s grant of summary judgment de novo. DIRECTV
Inc. v. Seijas, 508 F.3d 123, 125 (3d Cir. 2007). We apply the same standard as the
District Court in determining whether summary judgment was appropriate. Congregation
Kol Ami v. Abington Twp., 309 F.3d 120, 130 (3d Cir. 2002). Thus, summary judgment
was proper if, viewing the record in the light most favorable to the nonmoving party and
drawing all inferences in that party’s favor, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. See Abramson v. William
Paterson Coll., 260 F.3d 265, 276 (3d Cir. 2001); Fed. R. Civ. P. 56(c).
III.
A.
Plaintiffs contend that the “secretive” and “subjective” promotion process was a
mask for age discrimination, asserting that “the Township kept both the criteria and the
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process secret.” Appellants’ Br. at 15, 17. We have noted that “informal, secretive and
subjective hiring practices are suspect because they tend to facilitate the consideration of
impermissible criteria.” EEOC v. Metal Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990).
However, originally, the Township clearly communicated the criteria and process it
sought to use. When the Board first decided to promote officers to sergeant, it issued a
notice stating the experience and education applicants should have, providing the topics
and specific questions applicants should address in their applications, and describing the
new three-part promotional process. This process was abandoned, though, because
eleven officers, including Burrows and Barton, objected to it. In support of their
objection, they pointed out that in the then current “Logan Township Police Manual, . . .
no promotional processes [were] described or defined,” and “the promotional positions
are by appointment.” App. at 132. Thus, the Township reverted to the appointment
system and abandoned the objective and transparent promotion system because virtually
all of its officers objected to the new system and evidently favored promotions “by
appointment.” In these circumstances, the use of the appointment system does not raise
an inference of age discrimination.
B.
Plaintiffs argue also that certain inconsistencies between the Township’s proffered
reasons for denying promotions to Plaintiffs and actions by the Township at the time of
the promotions are sufficient to show pretext. Specifically, Plaintiffs contend that: (1) the
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Township’s explanation that it promoted Officers Flinn, Patterson, and Hoover because
they would best implement the PERF recommendations is inconsistent with the fact that
the Township had not established or discussed this criterion before the promotions were
made; (2) promoting Officers Flinn, Patterson, and Hoover based on their ability to
implement the PERF recommendations is inconsistent with the fact that the “Township
was ignoring PERF’s recommendation to establish a procedure and criteria for the
selection of sergeants,” Appellants’ Br. at 20; and (3) the fact that the Township retained
Chief Heller and promoted Officers Hoover and Patterson, even though all of these
individuals were critical of PERF, is inconsistent with denying promotions to Plaintiffs
because they were critical of PERF.
We fail to see how these alleged inconsistencies are such “that a reasonable
factfinder could rationally find them unworthy of credence, and hence infer that the
employer did not act for [the asserted] non-discriminatory reasons.” Fuentes v. Perskie,
32 F.3d 759, 765 (3d Cir. 1994) (emphasis in original). First, the Supervisors’ failure to
discuss the PERF recommendations does not sufficiently cast doubt on the explanation
that they sought applicants who would best implement those recommendations, especially
given that the original vacancy notice directed applicants to discuss community policing,
problem analysis, and leadership, all of which are important parts of the PERF
recommendations. See App. at 201 (“The Logan Township Police Department requires
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leadership that possesses the capacity and the desire to manage the police department by
utilizing the practices of community oriented policing and problem oriented policing.”).
Second, the Township did not ignore PERF’s recommendation to establish a
procedure and criteria for the selection of sergeants. In fact, as noted above, the
Township established just such a procedure, but abandoned it because virtually all of its
incumbent officers filed a grievance seeking to stop its implementation. In light of this
fact, we fail to see an inconsistency between the abandonment of the new procedure and
the desire to implement the PERF recommendations.
As the District Court noted, the record reflects that Chief Heller criticized PERF as
an organization and did not criticize its recommendations. Accordingly, the fact that the
Township retained his services is not inconsistent with Supervisor Meling’s opposition to
Plaintiffs because of their resistance to the PERF recommendations. In addition,
Plaintiffs assert that they “heard Officers Hoover [and] Patterson . . . express criticism of
PERF,” id. at 433 (Bender Affidavit), and that Officer Patterson “expressed criticism of
PERF,” id. at 465 (Walter Affidavit), but there is no evidence that the Supervisors were
aware of this alleged criticism from Officers Hoover and Patterson. Thus, the promotions
of Officers Hoover and Patterson are not inconsistent with denying promotions to
Plaintiffs on the ground that they were critical of the PERF recommendations.
C.
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Finally, Plaintiffs contend that the District Court overlooked evidence of ageism in
the Township, namely remarks made by Chief Rubin Moss, Chief Heller’s predecessor,
whose tenure ended more than a year before the promotions; Supervisor James Patterson,
who was no longer on the Board when the promotions were made; and Township
Manager Bonnie Lewis, who was not entitled to vote on the promotions. Relying
principally on Brewer v. Quaker State Oil Refining Corporation, 72 F.3d 326 (3d Cir.
1995), Plaintiffs contend that these remarks show that an ageist atmosphere existed
amongst the Township leadership and that this atmosphere eventually manifested itself in
Plaintiffs being denied promotions.
In Brewer, we held that “stray remarks by non-decisionmakers . . . may provide
some relevant evidence of discrimination,” and thus “may . . . be considered by the jury as
evidence of the corporate culture in which the employment decision to discharge [a
plaintiff] was made.” Brewer, 72 F.3d at 333-34; see also Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 521 (3d Cir. 1997) (“[S]uch remarks can . . . constitute evidence of
the atmosphere in which the employment decision was carried out.”). However, we made
clear in Walden that “comments by those individuals outside of the decisionmaking chain
are stray remarks, which, standing alone, are inadequate to support an inference of
discrimination.” Walden, 126 F.3d at 521 (emphasis added).
We made this point even more clearly in Ezold v. Wolf, Block, Schorr & Solis-
Cohen, 983 F.2d 509, 545 (3d Cir. 1992), where we held that sexist comments by a law
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firm partner not involved in the decision to pass over a female associate for partnership
were not “sufficient in and of themselves to . . . show that there was such a pervasive
hostility toward women at [the firm] sufficient to show that [the] partnership decision was
more likely the result of discriminatory bias than [the firm’s] perception of [the
associate’s] legal ability.” Id. at 547 (emphasis added). We explained:
If we were to hold that several stray remarks by a
nondecisionmaker over a period of five years, while
inappropriate, were sufficient to prove that [the firm’s] associate
evaluation and partnership admission process were so infected
with discriminatory bias that such bias more likely motivated
[the firm’s] promotion decision than its articulated legitimate
reason, we would spill across the limits of Title VII.
Id. We distinguished Ezold from Lockhart v. Westinghouse Credit Corp., 879 F.2d 43
(3d Cir. 1989), overruled on other grounds as recognized in Starceski v. Westinghouse
Elec. Corp., 54 F.3d 1089, 1099 n.10 (3d Cir. 1995), in which we deemed relevant to an
ADEA claim an ageist remark made by an executive of the employer, by noting that
“[t]he other evidence supporting the verdict in favor of the plaintiffs in Lockhart, unlike
the evidence in the present case, was substantial,” and that the partner in Ezold “took no
part in the final votes or evaluations concerning [the associate’s elevation to partnership]
because he had by that time left the firm.” Ezold, 983 F.2d at 546-47.
Here, had there been other evidence of age discrimination, the remarks of Chief
Moss, Supervisor Patterson, and Manager Lewis may well have been admissible to show
the atmosphere in which the promotions decisions were made. However, as in Ezold,
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these individuals were not entitled to vote on the promotions, and, as explained above,
other substantial evidence of age discrimination is lacking. Thus, the statements of Chief
Moss, Supervisor Patterson, and Manager Lewis are stray remarks by individuals outside
of the decisionmaking chain that are insufficient to defeat summary judgment.
IV.
Plaintiffs have failed to make a sufficient showing that the Township’s proffered
reasons for denying promotions to Plaintiffs were a pretext for age discrimination. Thus,
we will AFFIRM the judgment of the District Court.
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