Goosby v. Johnson & Johnson

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

9-25-2000

Goosby v. Johnson & Johnson
Precedential or Non-Precedential:

Docket 99-3819

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Filed September 25, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3819

DEBORAH S. GOOSBY,

Appellant

v.

JOHNSON & JOHNSON MEDICAL, INC.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil No.: 98-cv-0097
District Court Judge: Honorable Donetta W. Ambrose.

Argued: June 30, 2000

Before: ALITO, McKEE, Circuit Judges and
FULLAM,* District Judge

(Filed: September 25, 2000)

Domenic A. Bellisario, Esq. (Argued)
1000 Law & Finance Building
Pittsburgh, PA 15219

Attorney for Appellant

_________________________________________________________________
*Hon. John P. Fullam, Senior Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
 Richard F. Shaw, Esq. (Argued)
Amy E. Dias
Maureen T. Taylor
JONES, DAY, REAVIS & POGUE
500 Grant Street
Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

McKEE, Circuit Judge.

Deborah S. Goosby, a Black female, brought this Title VII
action against her former employer, Johnson & Johnson
Medical Inc. ("JJMI"), alleging that certain adverse
employment decisions were the result of illegal racial and
gender bias. The district court granted JJMI's motion for
summary judgment and dismissed all of Goosby's claims.
For the reasons that follow, we will reverse in part and
affirm in part, and remand for further proceedings
consistent with this opinion.

I.

JJMI initially hired Goosby as a Territory Assistant in
Virginia in 1990, and she was subsequently transferred
from Virginia to JJMI's Empire Division in New York. There,
she worked as a Sales Representative and was later
promoted to Senior Sales Representative. In January 1992,
Ms. Goosby was transferred to the Three Rivers Division in
Pennsylvania where she was working when she filed this
suit. She was the only Black female in that division, and
her direct supervisor there was the Division Manager,
Martin Murray. Murray reported to the Regional Manager,
Ron Evans.

Goosby's responsibilities at Three Rivers consisted
primarily of selling operating room related products to
Western Pennsylvania area hospitals. In November 1994,
JJMI restructured its sales force by creating three new
positions: (1) Account Manager ("AM"); (2) Surgical

2
Specialist Representative ("SSR"); and (3) Continuing Care
Representative ("CCR"), and assigning its sales
representatives to one of those three new positions. The AM
& SSR positions involved essentially the same hospital
customers, and many of the same products, Goosby had
been servicing before the reorganization. The CCR position,
on the other hand, was geared toward the nursing home
market -- which JJMI was attempting to enter for the first
time -- and involved products Goosby was not familiar
with.

Goosby expressed interest in the SSR and AM positions
because they involved selling the same products and
utilizing the same sales contacts she was involved with
before the reorganization. In addition, because JJMI was
relatively new to the nursing home market, the CCR
position required calling sales referrals she did not know.
This "cold-calling" was far more difficult than calling
established customers. Goosby alleges without
contradiction that she had been so effective selling to her
old customers that she had won several awards for
exceptional sales including recognition for the highest sales
volume, and induction into the company's "Ring Club" for
outstanding sales performance. App. at 526. She also had
the highest average commissions within her division and
alleges that her customers had high regard for her. App. at
503-16.

Goosby believed that the AM and SSR positions were
preferable to the CCR position because both appeared to
provide greater opportunity sales and would therefore result
in larger commissions and better promotions. She also
based her belief in part upon a conversation with a JJMI
representative who had told her that the AM position was
for the "best of the best" and that AM positions had been
assigned only to employees that the company believed in.
App. at 441-444. Goosby alleges that the CCR position, on
the other hand, was for employees that the company
wanted to get rid of.

JJMI developed a competency assessment tool (the
"Matrix") to match employees with the new positions.
According to JJMI, the District Managers evaluated each of
his/her employees according to eight competencies and five

3
skill sets that the District Managers were given to use as
evaluators.1 The Division Managers assigned each of
his/her employees a score from "one" to "five" for each
competency and skill set and sent the completed forms to
the Regional Manager.2 The Regional Manager then applied
various weights to the Matrix scores to reflect the different
competencies required for each position. For example,
according to JJMI, the most important qualifications for the
CCR position were drive, selling process, relationship
building, product knowledge and presentation skills while
administrative and organizational skills were the primary
attributes of an AM. Each employee was then given a
separate score for each of the new positions based upon the
weighted calculations of the Matrix. The lowest score for a
particular position indicated which of the three positions
the employee was most qualified for. However, JJMI
concedes that each Division Manager also recommended
placements for the employees he/she supervised when the
Division Manager sent the Matrix to the Regional Manager.

Goosby received poor scores in administrative, time
management, and organizational skills but she received
high scores in relationship building and presentation skills.
App. at 199. Her scores for drive, product knowledge,
business savvy, and pricing/contracts were satisfactory. Id.
Based solely upon the weighted numerical ranking that
resulted from those scores, the Matrix indicated that she
was best suited for the CCR position; and Division
_________________________________________________________________

1. The listed competencies were drive, selling process, relationship
building, product knowledge, business savvy, analytical, administrative,
and time management. The listed skill sets were computer skills,
leadership, pricing and contracts, presentation skills, and organization
skills.

2. The numbers assigned to the skills were as follows:

1- outstanding; 2- consistently exceeds standards;
3- meeting standards in this area;
4- occasionally meets standards;
5- does not meet standards

Thus, under this system, the position which yielded the lowest score
after the weights were attached, was ostensibly the position for which
the employee was most suited.

4
Manager, Martin Murray, recommended her for that
position when he sent the completed Matrix to the Regional
Manager. Id.; App. at 189.

Goosby was subsequently assigned to the CCR position,
but she was openly displeased. Five days after being
informed of the assignment, she filed a charge of race and
sex discrimination with the EEOC and the Pennsylvania
Human Relations Commission ("PHRC"). In the latter she
alleged a violation of the Pennsylvania Human Relations
Act. 43 P.S. S 955 ("PHRA").3

Despite her displeasure with her assignment, Goosby
began working as a CCR on January 1, 1995. However, in
May 1995, she took a short-term disability leave. Under
JJMI's disability policy, salaried employees were allowed to
remain on short-term disability for a maximum of twenty-
six weeks, but JJMI reserved the right to reassign afield
sales employee's sales territory (Goosby's CCR position)
after twelve weeks of disability leave. The policy also
required the employee to "communicate any unexpected
change in medical status to the medical department[of
JJMI]." App. at 265. The employee could not return without
submitting a "return-to-work authorization" form by which
the treating physician confirmed the employee's ability to
perform the full scope of his/her job. App. at 264-67.
Goosby was medically cleared to return to work and did
return on July 11, 1995.

However, Goosby took a second disability leave on August
14, 1995. On November 17, 1995, her treating physician
again authorized her return to work, but only in a limited
capacity. Accordingly, Evans and Murray compiled a list of
possible reduced duty jobs that Goosby could perform
consistent with her physician's authorization. App. at 145.
However, JJMI never extended an offer for limited duty
because Evans and Murray subsequently concluded that an
employee could not discharge the responsibilities of a CCR
_________________________________________________________________

3. The analysis required for adjudicating Goosby's claim under PHRA is
identical to a Title VII inquiry. Jones v. School District of
Philadelphia,
198 F.3d 403, 410-11 (3d Cir. 1999), and we therefore do not need to
separately address her claim under the PHRA.

5
on a reduced duty basis. App. at 298. Accordingly, Goosby
remained on disability leave.

The second twenty-six week leave that Goosby was
entitled to ended on February 14, 1996, under JJMI's
policy; but Goosby had not yet been cleared to return to
work on that date. Goosby now claims that the delay in
returning resulted from JJMI's failure to send the necessary
authorization forms for her doctor's approval. However,
JJMI argues that specific forms are not necessary.
According to JJMI, Goosby only had to obtain a letter from
her treating physician stating that he/she unconditionally
cleared Goosby to return to work full time. App. at 272,
276-77.

On March 6, 1996, Goosby learned that JJMI had
permanently reassigned her territory to another sales
representative. Six days later, she did finally submit an
unrestricted medical clearance from her treating physician.
The authorization stated that Goosby had been capable of
returning to work as early as February 14, 1996. App. at
322. However, JJMI had already filled Goosby's CCR
position, and it was therefore not available. JJMI did,
however, offer Goosby a CCR position in Buffalo, New York.
JJMI claims that was the only CCR position available at the
time. App. at 323-7. Goosby failed to respond to the offer,
and JJMI thereafter terminated her employment.

On January 14, 1998, Goosby filed the instant action in
the district court alleging race and gender discrimination in
violation of 42 U.S.C. S 1981 ("Title VII"), and the PHRA.
She alleges that the discrimination consists of her
assignment to the CCR position, JJMI's refusal to allow her
to work in a restricted duty capacity, and the reassignment
of her territory while she was on disability leave. Goosby
also claims that JJMI illegally retaliated against her for the
first charge of discrimination that she had filed with the
EEOC.4 Following discovery, the district court accepted the
magistrate judge's report and recommendation, and granted
JJMI's motion for summary judgment on all of Goosby's
claims. This appeal followed.
_________________________________________________________________

4. The EEOC had investigated and found her original charges were
meritorious.

6
II.

Our review of a grant of summary judgment is de novo.
See Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir. 1987).
Summary judgement is appropriate "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c).

III.

Title VII and the PHRA both prohibit an employer from
engaging in race or gender discrimination against an
employee. Under the oft cited decision in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), Goosby mustfirst
establish a prima facie case of discrimination. To do so she
must offer sufficient evidence that she was: (1) a member of
the protected class, (2) qualified for the position she sought,
and (3) nonmembers of the protected class were treated
more favorably. See Ezold v. Wolf, Block, Schorr and Solis-
Cohen, 983 F.2d 509, 522 (3d Cir. 1993). Once a plaintiff
under Title VII establishes a prima facie case, the employer
must come forward with a legitimate, non-discriminatory
reason for the adverse employment decision. See Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-
56 (1981). If the employer is able to proffer a legitimate,
nondiscriminatory reason for its actions, the plaintiff must
demonstrate that the proffered reason was merely a pretext
for unlawful discrimination. See Reeves v. Sanderson
Plumbing Products Inc., 120 S.Ct. 2097 (2000).

IV.

The district court concluded that Goosby had established
a prima facie case, and we agree. She can obviously satisfy
the first prong of the inquiry as a Black female. Secondly,
the AM and SSR positions involved the products and
customers she had dealt with prior to the restructuring.
She had not only performed those duties well, she had
excelled. As noted above, she earned the highest average
sales commissions within her division, and her sales ability

7
won her national recognition. We therefore conclude that
Goosby has established her qualifications for the two
positions she sought.

However, before we address JJMI's explanation for its
employment decisions, we must address a dispute about
whether JJMI's decision to award Goosby the CCR position
really was an "adverse employment decision." JJMI argues
that each of the three positions it created during the
reorganization had equivalent compensation and the
opportunity for advancement and promotions was the
same. However, as noted above, Goosby testified in her
deposition that the CCR position was the least desirable
because it operated in a new market, and the AM and SSR
positions dealt with established customers. Therefore, she
contends, it would be much harder for her to achieve the
same level of sales in her new CCR position despite JJMI's
assurances that the three positions were equal. Goosby also
testified that AMs were viewed by the company as the best
employees and placement in that position improved an
employee's chances of promotion and recognition. JJMI
disputes this by arguing that it would not go to the expense
and effort necessary to successfully compete in the new
market the CCR position was aimed at and then assign
employees it didn't intend to keep to develop the new area
of sales.

The divergence of Goosby's view of the CCR position and
her employer's rejoinder obviously creates a genuine issue
of material fact as to whether Goosby was treated
adversely. Inasmuch as we are reviewing a grant of
summary judgment, we must accept Goosby's assertion
that the CCR position was less desirable than the other
two. Accordingly, we must examine JJMI's explanation for
awarding Goosby the CCR position. See Jones v. School
Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). JJMI
justifies Goosby's assignment to the CCR by arguing that it
was dictated by the objective scoring of the Matrix that
Evans, not Murray completed. According to JJMI, Goosby's
assignment was determined by her poor administrative
skills score. JJMI points out that those low scores were
consistent with, and confirmed by, several performance
evaluations wherein Goosby's administrative and

8
organizational skills had been evaluated as needing
improvement. App. at 205, 213, 221, 223, 231, 238, 241,
257. JJMI asserts that those were the skills that were most
important to the positions Goosby preferred.5

JJMI argues that Murray did not even know how the
"objective" rating he gave Goosby would be weighed when
he completed the Matrix. Moreover, Goosby concedes that
her Matrix score is consistent with her assignment to the
CCR position given JJMI's scoring system, and that she
does have the administrative weaknesses that JJMI claims
lead to her assignment as a CCR. However, Goosby argues
that JJMI's stated reliance on the Matrix was itself merely
a pretext to camouflage the subjective decision of
Division Manager, Martin Murray, and that Murray's
recommendation actually caused her placement. She claims
that Murray ran a "good old boys" network that has
adversely effected her since she began working in the Three
Rivers Division. She suggests that this is reflected in the
fact that her pay increases were "drastically reduced" by
Murray, see App. 423-4, despite her stellar sales, and in
Murray's practice of inviting the White males in the division
to play golf, as well as the discriminatory manner in which
Murray handled complaints against various employees in
his division.

Goosby insists that her assignment as a CCR reflects
Murray's bias rather than her Matrix score, and she points
to situations where the Matrix score supported one
assignment, but Murray contemporaneously recommended
another. In the instances she refers to, the ultimate
assignment was consistent with Murray's recommendation;
not the purportedly objective scoring of the Matrix. For
example, according to the Matrix score, employee Naetzker
should have been assigned to an SSR or CCR position. App.
at 197. However, Murray recommended Naetzker to be
placed into an AM position, and Murray's recommendation
was honored. Similarly, the Matrix scoring indicated that
employees Kennedy and Deluca should become CCRs. App.
at 198, 200. However, Murray recommended that both
_________________________________________________________________

5. JJMI maintains that employees' preferences were irrelevant as they
weren't considered in making the placements.

9
employees be awarded positions as AMs, and his
recommendations were once again honored.

Goosby also argues that other employees with poor
scores for administrative and organizational ability were
nevertheless awarded the "preferable" positions purportedly
denied her because of those weaknesses. That allegation, if
proven, would support a finding of discrimination despite
her administrative weaknesses. JJMI attempts to explain
this discrepancy by pointing out that only a limited number
of employees were needed to fill each position and therefore
the Matrix could not always be followed. That may well be,
however, a reasonable fact finder could also conclude that
the Matrix did not have the importance JJMI claims, and
that JJMI's reliance on it to explain Goosby's placement is
merely a pretext to cover Murray's discriminatory motive in
not recommending her for the "better" positions. See Meritor
Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 75 (1986) ("An
employer can act only through individual supervisors. . .
discrimination is rarely carried out pursuant to a formal
vote of a corporation's board of directors."). Moreover, the
Matrix criteria and their weighting are themselves highly
subjective even though they are given an apparently
objective numerical ranking. Accordingly, the Matrix does
not insulate JJMI to the extent that JJMI suggests.
"[S]ubjective evaluations are more susceptible of abuse and
more likely to mask pretext." See Weldon v. Kraft, Inc., 896
F.2d 793, 798 (3d Cir. 1990)(citations and internal
quotations omitted).

We have held that while objective job qualifications
should be considered in evaluating a plaintiff 's prima
facie case, the question of whether an employee
possesses a subjective quality, such as leadership or
management skill, is better left to the later stage of the
McDonnel Douglas analysis.

Id.

Moreover, "subjective" scoring is sometimes based upon
factors that are too speculative to base a meaningful
comparison. Carter v. Three Springs Residential Treatment,
132 F.3d 635, 644 (11th Cir. 1998). In Carter , the court
held that an employer's reliance on plaintiff 's lack of

10
"special knowledge and skills" was "too subjective to allow
for any meaningful comparison between [two applicants]."
Id. at 644. The court noted that other requirements such as
"initiative and judgment capabilities" and the ability "to
relate to people in a manner to win confidence and
establish support" can not be evaluated objectively and
therefore should not be relied upon to overcome a prima
facie case of discrimination. Id.

Of course, a plaintiff can not ultimately prove
discrimination merely because his/her employer relied
upon highly subjective qualities (i.e. "drive" or
"enthusiasm") in making an employment decision. However,
just as use of such criteria does not establish
discrimination, cloaking such criteria with an appearance
of objectivity does not immunize an employment decision
from a claim of discrimination.

Although courts must be careful not to second-guess
an employer's business judgment that it makes in good
faith, plaintiff must be allowed to show that her
employer's asserted reasons for discharging her were a
pretext and that the real reason was [illegal
discrimination].

Gallo v. Prudential Residential Services, 22 F.3d 1219, 1226
(2nd Cir. 1994) (citing St. Mary's Honor Center v. Hicks, 509
U.S. 502, 519 (1993).

JJMI also argues that Goosby's claim of gender
discrimination should be dismissed because the only other
woman in her division was assigned to a position as an AM.
However, that does not necessarily defeat Goosby's claim of
gender bias. Clearly, an employer does not have to
discriminate against all members of a class to illegally
discriminate against a given member of that class. See
Pivirotto v. Innovative Systems, 191 F. 3d 344, 353-4 (3rd
Cir. 1999) ("even if a woman is fired and replaced by
another woman, she may have been treated differently from
similarly situated male employees."). Within the atmosphere
of the "old boys' network" that Goosby alleges, it is certainly
possible that some females may have been preferred
because they were more "like one of the boys" than Goosby.
Id. at 354 ("an employer may fire women who fail to act in

11
a particular manner" or who appear more assertive and
"less feminine"). In addition, it is conceivable that an
employer who harbors a discriminatory animus may
nevertheless allow one or two females to advance for the
sake of appearances.

Moreover, evidence that JJMI afforded a White female an
assignment that it denied to a Black female hardly defeats
a claim of race/gender discrimination brought by a Black
female.

We are, of course, reviewing a grant of summary
judgment, and we do not suggest that JJMI is guilty of race
and/or gender discrimination, or that Goosby will
ultimately be able to prove the discrimination she is
alleging. Goosby admits to having problems with
administrative tasks, and JJMI argues that the positions
she sought placed a premium on the very areas where
Goosby admits to being weakest. However, Goosby's claim
that she was treated less favorably than White males with
similar weaknesses can not be decided as a matter of law.
In an employment discrimination case "a trial court must
be cautious about granting summary judgment to an
employer when, as here, its intent is at issue." Gallo v.
Prudential Residential Services, Ltd. Partnership , 22 F.3d
1219, 1224 (2d Cir. 1994). Inasmuch as there are genuine
issues of material fact as to JJMI's motives in assigning
Goosby to the CCR position, we hold that the district court
erred in granting JJMI summary judgment on that portion
of Goosby's claim. Accordingly, the court's dismissal of
Goosby's Title VII and PHRA claims based upon JJMI's
failure to place her in the AM or SSR position will be
reversed.

V.

Goosby also alleges that JJMI discriminated against her
by not allowing her to return to work in a limited duty
capacity. As noted above, JJMI explained that it"did not
have a restricted duty policy for any field sales employees"
because "a sales employee [such as Goosby] could not
perform all the essential tasks, such as makingfield visits
to existing and potential customers, if they were on

12
restricted duty." App. at 49. When Goosby's physician first
released her for restricted duty, her supervisors began
discussing possible options. On October 16, 1995, Evans e-
mailed Murray with a list of reduced activities which JJMI
would have Goosby perform if they "decide[d] to recommend
a reduced activity assignment." App. 486. A few days later,
Evans sent a memo to Pat Van Wye, JJMI's leave
coordinator, stating "I am of the opinion we should
aggressively move forward and . . . potentially establish a
reduced duty assignment." App. at 488. He attached the list
of potential reduced duty activities to that memo. However,
before any firm offer was made, Evans and Murray decided
to only allow the return of a field sales representative such
as Goosby if the representative was capable of performing
his/her full duties. There is no evidence that any other
JJMI sales representative was ever allowed to work in a
limited capacity, and Goosby has not produced any
evidence that JJMI's explanation for its refusal to offer her
such a position was pretextual. Therefore, the district court
did not err in dismissing this portion of Goosby's claim.

VI.

Ms. Goosby also claims that JJMI discriminated against
her by permanently filling her position while she was on
leave. However, as noted above, JJMI's short term disability
policy provided for a maximum of twenty-six weeks
disability leave and guaranteed only that a field sales
employee's territory would remain open for the first twelve
weeks of that leave. App. 264-66. Moreover, before
returning to work, an employee on leave was clearly
required to submit a medical release from a treating
physician.

It is undisputed that Goosby's twenty-six weeks of leave
expired on February 14, 1996 and that she did not submit
her doctor's authorization until after that date. She argues
that the authorization was delayed because JJMI did not
send her the paperwork for completion until February 6,
1996. We find that excuse unavailing. JJMI asserts that it
would have accepted a letter from her treating physician,
and had done so in the past, so that Goosby knew that she
did not have to wait for specific forms to obtain her

13
physician's authorization to return to work. However, even
if that claim is not accurate, Goosby clearly knew the clock
was ticking and she had sufficient time between the forms
being sent and the expiration of her leave period to return
the forms to JJMI. She failed to do so. Absent any evidence
that she was unable to comply with JJMI's policy because
of something JJMI did, we are not persuaded that there is
a genuine issue of material fact as to this issue.

Goosby argues that, although the short term disability
policy did exist, JJMI did not uniformly follow it. A violation
of company policy can constitute a pretext for unlawful
discrimination if others similarly situated also violated the
policy with no adverse consequence. See Delli Santi v. CNA
Ins. Companies, 88 F.3d 192, 203-4 (3d Cir.1996). Goosby
points to two White female employees who returned to work
in their original positions after being on leave for more than
twenty-six weeks. Appellant's Brief at 27. However, even
assuming that is true, Goosby has not demonstrated that
either of those employees was similarly situated to her.
Goosby can not establish the type of leave those women
took or whether their paperwork was submitted on time.
Thus, Goosby can not overcome JJMI's reliance on its
established policy, and the district court properly concluded
that JJMI was entitled to summary judgment on the
portion of Goosby's claim that arose from her termination
following her disability leave.

VII.

Finally, Goosby claims that JJMI unlawfully retaliated
against her for filing a charge of discrimination. To
establish a prima facie claim of retaliation, a plaintiff must
show that he/she is engaged in protected activity, that the
employer took an adverse employment action against
him/her, and that there is a causal connection between the
protected activity and the adverse employment action. See
Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir.
1997). Goosby filed the relevant charges with the EEOC on
November 28, 1994 and claims that JJMI retaliated by not
allowing her to return to work in a restricted duty capacity
and by reassigning her territory before her return.

14
The district court disposed of that claim as follows:

plaintiff 's argument . . . does not provide a jury with
sufficient evidence from which an inference of
retaliation can be made. Plaintiff does not, and cannot,
contest that her position was held open to her for a full
26 weeks of disability leave. . . Further, plaintiff
concedes that defendant requested from her, prior to
the expiration of her sick leave, a return to work
authorization, and that she did not provide such an
authorization until almost a month after her sick leave
expired. No inference of retaliation can be rationally
drawn from these facts.

App. at 603-4.

We agree. In addition, the time frame between Goosby's
EEOC filing and the alleged retaliation weighs against the
causation that she must establish. There was nearly a full
year between the first filing with the EEOC and Goosby's
attempts to return to work on restricted duty, and almost
fifteen months passed before she was permanently replaced
and ultimately terminated. Although such a lapse may not
prevent a plaintiff from establishing the required nexus in
every case, given the circumstances here Goosby can not
establish that a genuine dispute as to the material fact of
causation. There is nothing to suggest any link between the
EEOC filing and the adverse job action that followed.

VIII.

For the foregoing reasons, the district court's dismissal of
Goosby's claim of discrimination based on her assignment
to a CCR position is reversed and remanded for further
proceedings consistent with this opinion. The district
court's grant of summary judgment to JJMI is affirmed in
all other respects.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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