El v. Southeastern Pennsylvania Transp. Auth.

• Decision Date: 19 March 2007
• Docket Number: No. 05-3857.,05-3857.
• Citation: 479 F.3d 232
• Parties: Douglas EL, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA"), Defendant/Third-Party Plaintiff v. J & D Jagicla Enterprises, Inc., trading as Liberty Vans; King Limousine Service, Inc.; Anderson Travel; Krapfs CPS, Inc.; Community Transit, Inc.; Atlantic Paratrans, Inc.; Triage, Inc.; Edens Corporation; King Paratransit Service, Inc., Third-Party Defendants.
• Court: U.S. Court of Appeals — Third Circuit

479 F.3d 232

Douglas EL, Appellant v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY ("SEPTA"), Defendant/Third-Party Plaintiff v. J & D Jagicla Enterprises, Inc., trading as Liberty Vans; King Limousine Service, Inc.; Anderson Travel; Krapfs CPS, Inc.; Community Transit, Inc.; Atlantic Paratrans, Inc.; Triage, Inc.; Edens Corporation; King Paratransit Service, Inc., Third-Party Defendants.

No. 05-3857.

United States Court of Appeals, Third Circuit.

Argued September 28, 2006.

Opinion filed March 19, 2007.

Eugene A. Spector, Esquire, David J. Cohen, Esquire (Argued), Spector, Roseman & Kodroff, P.C., Philadelphia, PA, Timothy M. Kolman, Esquire, Wayne A. Ely, Esquire, Tomothy M. Kolman and Associates, Langhorne, PA, Counsel for Appellant.

Saul H. Krenzel, Esquire (Argued), Robert J. Haurin, Esquire, Saul H. Krenzel & Associates, Philadelphia, PA, Counsel for Appellee.

Theodore M. Shaw, Director-Counsel and President, Norman J. Chachkin, Esquire, Robert H. Stroup, Esquire, Melanca D. Clark, Esquire, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Sharon M. Dietrich, Esquire, Community Legal Services, Inc., Philadelphia, PA, Counsel for Amicus-Appellants.

Before McKEE, and AMBRO, Circuit Judges, RESTANI,^* Chief Judge.

AMBRO, Circuit Judge.

This appeal arises out of a Title VII action alleging employment discrimination based on race. Plaintiff Douglas El claims that the Southeastern Pennsylvania Transportation Authority ("SEPTA") unnecessarily disqualifies applicants because of prior criminal convictions—a policy that he argues has a disparate impact on minority applicants because they are more likely than white applicants to have convictions on their records.¹

The Court granted summary judgment, however, in favor of SEPTA, concluding that it had borne the burden of proving that its policy is consistent with business necessity. Though we have reservations about such a policy in the abstract, we affirm here because El did not present any evidence to rebut SEPTA's expert testimony.

I. Factual Background and Procedural History

In January 2000, King Paratransit Services, Inc. ("King") conditionally hired El to drive paratransit buses. The position involves providing door-to-door and curb-to-curb transportation service for people with mental and physical disabilities. King subcontracted with SEPTA to provide paratransit services on SEPTA's behalf. King's subcontract with SEPTA disallowed hiring anyone with, among other things, a violent criminal conviction. Accordingly, among the conditions stipulated in El's offer was successful completion of a criminal background check. Within the first few weeks of El's employment, King discovered that El had a 40-year-old conviction for second-degree murder.² Following the terms of King's subcontract with SEPTA and El's employment offer, King terminated his employment. According to King personnel, the murder conviction was their sole reason.

As the background check revealed, El was convicted of second-degree murder in 1960. According to his testimony, the murder took place in the context of a gang-related fight in which the victim was shot and died. El was 15 years old at the time, and the victim was 16. El claims not to have been the triggerman, and, indeed, he was not the only person convicted of the murder, but no objective report of the circumstances appears in the record before us. Following his conviction, El served three-and-a-half years for his crime. This now 47-year-old conviction is El's only violent offense.

According to the contract in place between King and SEPTA in 2000, King was required to ensure that anyone in SEPTA service as a driver or attendant have:

e. no record of driving under [the] influence (DUI) of alcohol or drugs, and no record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s);

f. have no record of any conviction within the last seven (7) years for any other felony or any other misdemeanor in any category referenced below (see section F.2.10.C) [listing specific offenses], and not be on probation or parole for any such crime, no matter how long ago the conviction for such crime may be.

App. at 429.

The parties dispute whether this provision accurately states the hiring policy that was applied to El. SEPTA contends that it does. El, on the other hand, argues that King and SEPTA applied a much broader exclusion taken from language in another part of the contract that seems to disallow hiring anyone with a criminal conviction of any kind. Specifically, El argues that King applied a nearby provision in the contract stating that "[t]he Contractor [King] shall . . . reject/bar any applicant or current employee from SEPTA-related work whose record includes . . . any conviction for any felony and/or misdemeanor." App. at 430.

The District Court found that King applied the narrower policy. King personnel testified that they applied the narrower policy to El and to all of its SEPTA-related applicants. Moreover, personnel from other SEPTA subcontractors testified that they applied the narrower policy in similar contracts, and SEPTA personnel testified that the narrower policy was the one that SEPTA intended for them to apply and the one that they referred to when asked for assistance with contract interpretation. SEPTA's transactional lawyers may have been less than precise in writing an internally inconsistent contract, but all of the record evidence shows that one particular interpretation of that inconsistency prevailed,³ and so we cannot conclude that the issue is genuinely disputed. Thus, we decide this case on the basis of the narrower hiring policy quoted above.

After his employment was terminated, El filed a complaint with the Equal Employment Opportunity Commission ("EEOC") in which he alleged that SEPTA's hiring policy violated Title VII of the Civil Rights Act of 1964⁴ by discriminating on the basis of race. Specifically, he argued that the policy has a disparate impact because African Americans and Hispanics are more likely to have a criminal record, they are more likely to run afoul of the policy. After investigating his complaint, the EEOC found in El's favor. The agency was, however, unable to resolve the dispute, and the Civil Rights Division of the Department of Justice declined to pursue the matter.

El elected to pursue this claim himself in District Court as a class action. The District Court decided not to determine immediately whether to certify the proposed class. Rather, it allowed full discovery leading up to a period in which parties could file dispositive motions. After completing discovery, SEPTA moved for summary judgment, arguing that (1) it was not El's employer for Title VII purposes, (2) El had not submitted sufficient evidence that SEPTA's policy had a disparate impact on racial minorities, (3) it had submitted sufficient evidence to prove that its policy was justified by business necessity, and (4) El had not submitted sufficient evidence of an alternative policy that would accomplish SEPTA's legitimate goal of public safety. The District Court denied the motion on the first two grounds, but granted it on the second two, thus effectively ending the litigation in SEPTA's favor. This appeal follows.⁵

II. Standard of Review

The standard for awarding summary judgment is well-worn: it is fitting when "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

Because SEPTA sought summary judgment on its affirmative defense of business necessity, it would bear the burden of proof⁶ at trial and therefore must show that it has produced enough evidence to support the findings of fact necessary to win. Marzano v. Computer Sci. Corp., Inc., 91 F.3d 497, 502 (3d Cir. 1996); Sorba v. Penn. Drilling Co., Inc., 821 F.2d 200, 202-03 (3d Cir.1987). When a witness's credibility is critical to supporting the necessary findings of fact, the District Court must consider whether there are sufficient grounds for impeachment that would place the facts to which he testifies in legitimate dispute. See Horowitz v. Fed. Kemper Life Assur. Co., 57 F.3d 300, 302 n. 1 (3d Cir.1995) ("Summary judgment is inappropriate when a case will turn on credibility determinations.") (citing Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). In considering the evidence, the court should draw all reasonable inferences against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.") (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)); see also Atkinson v. LaFayette Coll., 460 F.3d 447, 451 (3d Cir.2006).

If the moving party successfully points to evidence of all of the facts needed to decide the case on the law short of trial, the non-moving party can defeat summary judgment if it nonetheless produces or points to evidence in the record that creates a genuine issue of material fact. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993). The non-moving party cannot rest on mere pleadings or allegations; rather it must point to actual evidence in the record on which a jury could decide an issue of fact its way. Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.2006) ("In this respect, summary judgment is...