Narin v. Lower Merion School Dist.

• Decision Date: 02 November 1999
• Docket Number: No. 99-1029,99-1029
• Citation: 206 F.3d 323
• Parties: (3rd Cir. 2000) SANDRA G. NARIN Appellant, v. LOWER MERION SCHOOL DISTRICT Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 323

206 F.3d 323 (3rd Cir. 2000)

SANDRA G. NARIN Appellant, v. LOWER MERION SCHOOL DISTRICT

No. 99-1029

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: November 2, 1999

Decided March 10, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. No. 97-cv-6376) District Judge: Honorable J. Curtis Joyner

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Theodore R. Mann (Argued) Neil C. Gever Mann, Ungar, Spector & Labovitz 1709 Spruce Street Philadelphia, PA 19103, Counsel for Sandra G. Narin

Kenneth A. Roos (Argued) Justin M. O'Donoghue Wisler, Pearlstine, Talone, Craig, Garrity & Potash, LLP 484 Norristown Road -Suite 100 Blue Bell, PA 19422-2326, Counsel for Lower Merion School District

Before: NYGAARD, MCKEE and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal provides an excellent illustration of the difficulties that confront a claimant under the Age Discrimination in Employment Act (ADEA). 29 U.S.C.S 621 et seq. The plaintiff, Sandra G. Narin, applied for ten different teaching positions with the defendant, Lower Merion School District. The school district did not hire her for any of these positions, and it filled some of them with substantially younger applicants.

Narin sought relief under the ADEA in a suit she filed in the United States District Court for the Eastern District of Pennsylvania. The district court granted summary judgment in favor of Lower Merion on nine of her eleven claims of discrimination brought pursuant to that Act. The remaining two claims were tried to a jury, which returned a verdict in favor of Lower Merion. Before the conclusion of the trial, Narin uncovered additional evidence that cast doubt on the propriety of some of the district court's summary judgment rulings. She did not, however, request the district court to reconsider its rulings or grant her a new trial on the basis of the newly discovered evidence.

After the trial and entry of judgment, Narin timely appealed. Although this is a troublesome case, after hearing oral argument and carefully reviewing the record and briefs, we are constrained to affirm.

I.

Narin was born on April 2, 1941. From 1958 to 1962, she attended Bryn Mawr College where she earned a bachelor's degree in Russian with honors. From 1962 to 1965, Narin attended the University of Pennsylvania where she received a doctorate in Russian language. From 1980 to 1983, Narin attended Villanova University School of Law where she acquired a law degree. In 1994, Narin obtained teaching certifications in French and Russian from Bryn Mawr College. In 1996, Narin also obtained a teaching certification in English from Eastern College.

Narin completed her student teaching program in the Lower Merion School District during the Spring of 1994. Thereafter, she served as a .2long term substitute French teacher in the Lower Merion School District for the 1994-95 school year.¹ This position, which was temporary from the start, was eliminated as planned at the end of the school year. Narin, however, continued to work as a per diem substitute in the Lower Merion School District for the next two school years. During the 1995-96 school year, Narin substituted on 118 days out of the 180-day school year. During the 1996-97 school year, Narin substituted on 130 days. While working as a per diem substitute, Narin applied for ten different teaching positions in the Lower Merion School District.

First, she applied to teach French in a foreign language pilot program to be implemented at Cynwyd Elementary School. ("Count I"). She applied for this position by sending a letter dated April 15, 1996 to William Kearns, the director of personnel for the Lower Merion School District. Kearns replied to Narin by letter dated April 17, 1996 and informed her that, if the school board approved the pilot program, a fractional teacher would be needed for the 1996-97 school year. Although the program was later approved, Narin was neither hired nor interviewed for the position. Sandra Dunn, to whom Kearns delegated the responsibility of selecting applicants for interviews, testified in her deposition that she did not remember reviewing Narin's application, but probably would not have been interested in Narin because she (i.e., Dunn) "very clearly wanted someone who had experience teaching, if not elementary school, at least middle school." Jt. App. at 161. Marie Wells, age 34, was ultimately hired for the position. Although, like Narin, Wells lacked full-time elementary teaching experience, Wells had developed and run an after school French program for second, third, and fourth graders. Wells also taught middle school from 1986 to 1989.

Second, Narin applied for a position as a "Challenge Teacher" at Cynwyd Elementary School. ("Count III").² Narin first expressed interest in this position in her April 15, 1996 letter to Kearns. At that time, however, the position was not yet posted, and Kearns did not respond to Narin's inquiries in regard to it. After the position was posted formally on April 25, 1996, Narin sent another letter to Kearns dated April 29, 1996, in which she reexpressed interest in the "Challenge Teacher" position. Again, however, Narin was not interviewed for the position. In his declaration in support of summary judgment, Kearns stated that Narin was neither hired nor interviewed for the position because she lacked experience teaching at the elementary school level and did not possess an elementary education certification. Lower Merion ultimately hired Jill Horak, age 43, who possessed both.

Third, Narin applied "for the position of regular education teacher for all four major subjects in an alternative setting." ("Count IV"). She did so by sending a letter to Kearns dated April 29, 1996. Narin was never interviewed or contacted in regard to this position. Throughout discovery and in its motion for summary judgment, Lower Merion, relying on Kearns' affidavit and deposition testimony, contended that the position did not exist. In response, Narin pointed to a portion of her deposition, in which she testified that she had read about the position in the paper and that "Domenick someone" had been hired for it. ³ Narin also attached a copy of the formal posting for the position as an attachment to her sur-reply to Lower Merion's motion for partial summary judgment on the statute of limitations.⁴

Fourth, at the suggestion of Nancy Pertschuk, the chairperson of the Harriton High School English Department, Narin applied for a position to teach English at Harriton High School for the 1996-97 school year. ("Count V"). She applied by sending a letter to Kearns dated July 30, 1996. Narin was interviewed for the position on August 1, 1996 by Pertschuk and Harriton High School's principal, Norton Seaman. Seaman, who possessed the authority for the hiring decision, subject to final approval by the superintendent, testified in his deposition that he chose Kathy Bress, age 38, over Narin because he believed that Bress performed better in her interview. Pertschuk, who stated that Narin was her first choice, also stated that Kathy Bress was on her "short list" for the position and that her leanings toward Narin probably reflected her friendship with Narin.

Fifth, on October 21, 1996, Narin applied for a .6 longterm substitute position teaching French at Bala Cynwyd Middle School. ("Count VI"). Again, she did so by sending a letter to Kearns. Narin followed up with her application on several occasions. Between October and January, she made four phone calls to Lower Merion's personnel office in regard to the position, however, Narin was not interviewed until January 7, 1997. When she was interviewed, it was by Kearns and Dunn, who allegedly did not come away with a favorable impression. Both Kearns and Dunn stated that while they were impressed with Narin's academic background they were concerned by Narin's lack of middle school experience. The two also felt that Narin performed poorly in her interview. Ultimately, the two recommended Julia Proger, a 23-year old with no experience teaching middle school students. Narin testified in her deposition that during the interview, Dunn asked her whether she "as a person who is returning to teaching at [her] age, after so long a time, could possibly adapt to the new humanistic methods."⁵

Sixth, on December 19, 1996, Narin applied for a .4 longterm substitute position teaching English at Bala Cynwyd Middle School. ("Count VII"). Again, she applied by sending a letter to Kearns. Lower Merion contends that by the time Kearns received Narin's application, it had already hired Andrew Thomas, age 24.

Seventh, on March 9, 1997, Narin applied for a long-term substitute position teaching English at Lower Merion High School. ("Count VIII"). Again, she did so by sending a letter to Kearns. Narin was interviewed for the position on March 19, 1997 by Dr. Maher, Lower Merion High School's principal, and Dr. Hay, Lower Merion's coordinator of language arts. Dr. Maher rated Narin's interview performance as average. Dr. Hay rated Narin's interview performance slightly higher, but expressed concern about Narin's lack of full-time English-teaching experience. Ultimately, Dr. Maher, who had authority to make the hiring decision, subject to approval by the superintendent, recommended Deborah Gavin, age 27, instead of Narin. Dr. Maher and Dr. Hay both rated Gavin's interview performance highly and thought Gavin an "excellent fit" for the position.

Eighth, on May 12, 1997, Narin applied for a full-time position teaching English at Lower Merion High School. ("Count IX"). Again, Narin did so by sending a letter to Kearns. Narin was granted an interview for the position. Dr. Maher, Lower Merion High School's principal, conducted the interviews for the position in July of 1997. Dr. Maher's first choice for the position was Marsha Pincus, age 45. Pincus,...