Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-17-2008
Cerol v. Temple Univ
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3644
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"Cerol v. Temple Univ" (2008). 2008 Decisions. Paper 92.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3644
MARIE-JOSEE CEROL, DR.
v.
TEMPLE UNIVERSITY OF THE COMMONWEALTH
SYSTEM OF HIGHER EDUCATION
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 06-00213)
Honorable Mary A. McLaughlin, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 3, 2008
BEFORE: AMBRO, and GREENBERG, Circuit Judges,
and RODRIGUEZ, District Judge*
Filed: December 17, 2008
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on an appeal from an order of the District
*The Honorable Joseph H. Rodriguez, Judge of the United States District Court for the
District of New Jersey, sitting by designation.
Court entered on August 16, 2007, granting summary judgment to defendant Temple
University in this action brought against it by plaintiff Marie-Josee Cerol, a French citizen
from Guadeloupe, charging that Temple denied her a promotion to full professor in its
Department of African-American Studies by reason of national origin discrimination and
in retaliation for her earlier having filed a charge against Temple with the EEOC. See
Cerol v. Temple Univ., Civ. No. 06-00213, 2007 U.S. Dist. LEXIS 60056 (E.D. Pa. Aug.
16, 2007). Cerol filed the underlying EEOC charge because Temple allegedly denied her
merit salary increases because of the place of her national origin.
Cerol brought this action under both Title VII and the Pennsylvania Human
Relations Act (“PHRA”), but, as the District Court noted, in this case the same standards
and decisional law apply to retaliation claims under both statutes. See Slagle v. County
of Clarion, 435 F.3d 262, 265, 265 n.5 (3d Cir. 2006). Inasmuch as Cerol abandoned her
national origin claim in the District Court, we are concerned only with her retaliation
claim. The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367, and
we have jurisdiction under 28 U.S.C. § 1291.
The law governing this appeal is quite clear. We exercise plenary review over the
order of the District Court. See Baer v. Chase, 392 F.3d 609, 615 (3d Cir. 2004). Thus,
we determine whether when Temple moved for summary judgment, the pleadings,
deposition, answers to interrogatories, admissions, and affidavits showed that “there
[was] no genuine issue as to any material fact” and it was “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). The burden-shifting law with respect to Title VII
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and the PHRA is equally clear and follows the framework that the Supreme Court
established 35 years ago in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93
S.Ct. 1817, 1824-25 (1973). As the District Court said:
Under this framework, a plaintiff must first establish a prima facie case of
retaliation. If the plaintiff succeeds, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for its actions. Should
the defendant carry this burden, the plaintiff must convince the factfinder
that this explanation was a pretext and that retaliation was the real reason
for the adverse employment action.
Cerol, 2007 U.S. Dist. LEXIS 60056, at *21 (internal quotation marks and citation
omitted). The District Court concluded that Cerol had “failed to provide sufficient
evidence to establish a prima facie case or permit an inference that [Temple’s]
explanation for its action was pretextual.” Id.
After our review of this matter, we have concluded that we are in full accord with
both the District Court’s analysis and the result it reached, and inasmuch as the District
Court’s opinion includes all of the facts and its reasoning we need not repeat what it said.
We, however, do add two points to its opinion. First, Cerol could prevail only if a court
adopted as the law a theory that once an employee files a discrimination case against an
employer, in any subsequent retaliation action predicated on the employer having taken
an adverse action against the employee, the complaint creates a jury question surviving
the employer’s motion for summary judgment no matter what evidence the employer
presents supporting its motion. Certainly that formulation is not the law and courts
should not adopt it as such.
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Second, Cerol makes the following point:
by email dated December 1, 2003, Susan Herbst, not the College Promotion
Committee, informed Appellant on behalf of the Committee ‘her two books
written in French will need to be translated, since the Committee cannot
read it and therefore cannot evaluate it.’ Herbst knew this request was
physically and economically impossible to do within ten days. Dean Herbst
completed her email with the helpful suggestion ‘I suggest you withdraw
your case until you can provide the above. Thank you.’ Cerol was being
jerked around by Temple and she knew [it]. She refused to withdraw. She
was in a no win ‘jump or be pushed’ situation and she knew it. She decided
not to make it easy for Temple.
Appellant’s br. at 13-14 (footnote and record citations omitted). In a footnote to the
foregoing quotation Cerol set forth the following point: “With less than ten days to go of
consideration of this promotion, [Susan Herbst] demanded that [Cerol] have two of her
books, which were authored in French, translated into English.” Id. at 13 n.3.
We do not doubt that Cerol could not obtain the requested translations within ten
days. Nevertheless, it cannot be argued reasonably that it was wrong for Herbst on behalf
of the Committee to request them. Yet Cerol makes the unappealing argument that when
Herbst informed her that her books had to be translated to English and suggested that she
withdraw her application until she could provide the translations, she, Cerol, was being
“jerked around.”
Even if we assume that Temple could have made the request for translations
sooner, surely Herbst’s suggestion that Cerol withdraw her case until she could provide
them was reasonable. After all, Herbst suggested a procedure that preserved Cerol’s right
to seek a promotion to professor. In sum, we find that the request for translations, even
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though part of a larger picture that Cerol presented, cannot be a basis for a retaliation
lawsuit against Temple.
For the foregoing reasons and for the reasons the District Court set forth, we will
affirm the order of August 16, 2007, granting Temple summary judgment.
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