Sharon A. Finizie v. ERIC K. SHINESKI, Secretary, Department of Veterans Affairs Substituted pursuant to…

Honorable Nora Barry Fischer, United States District Judge for the Western District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2835
SHARON A. FINIZIE,
Appellant
v.
ERIC K. SHINESKI, Secretary, Department of Veterans Affairs
(Substituted pursuant to Fed. R. App. P. 43(c))
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-03-cv-04437)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
May 13, 2009
Before: AMBRO and ROTH , Circuit Judges and FISCHER , District Judge*
(Opinion filed October 19, 2009 )
OPINION
AMBRO, Circuit Judge
Between 2003 and 2006, Sharon A. Finizie brought five separate employment-

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She has participated in EEO activity on behalf of herself by filing various complaints1
and also on behalf of other employees by being a witness in their discrimination
complaints against the VA. She refers to her history of protracted litigation and EEO
activity as “legendary,” “tenacious” and “unrelenting.”
In her first set of actions, which were consolidated in 2002, Finizie lost on all of her2
claims. See Finizie v. Principi, Civil Action No. 00-3268, aff’d, 69 F. App’x 571 (3d Cir.
2003).
2
discrimination actions against the Department of Veterans Affairs Medical Center
(“VA”), alleging violations of Title VII of the Civil Rights Act of 1964 as amended by
the Civil Rights Act of 1991 42 U.S.C. § 2000e et seq. The District Court consolidated
the different actions into one action in July 2007, and later granted summary judgment to
the VA on each of Finizie’s claims. Finizie now appeals those grants of summary
judgment, in addition to a prior order denying her motion to compel the production of
discovery materials. We affirm all the judgments of the District Court.
I.
Because we write solely for the parties, we recite only the facts necessary to our
decision. Finizie, a registered nurse, has worked for the VA since the late 1970s. She has
held various positions during her time at the VA and currently works in the area of
Quality Management (QM). She began participating in Equal Employment Opportunity
(“EEO”) activity in May 1993. Her participation was continuous, at least up to the time1
of the District Court’s decision. This appeal relates to her second set of actions against
the VA.2
The employment-discrimination claims at issue here stem from five separate

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3
incidents, each of which (according to Finizie) involved either retaliation for her prior
EEO activity or gender discrimination. The various claims were brought in 2003, 2004,
and 2006, but were held in civil suspense by the District Court pending the final outcome
of all the associated administrative proceedings. The claims were ultimately consolidated
in July 2007.
Finizie’s first employment-discrimination claim relates to the VA’s alleged delay
in permanently assigning her to the position of QM Specialist. That position became
vacant in February 2000, but was not offered to Finizie until February 2001. In the
interim, Finizie performed QM Specialist duties, reported to the temporary QM Director
and had the title of “QM Specialist of Neurology, Audiology, Dental,” but still technically
remained outside of the QM Department. During that same period, the VA employed a
part-time, temporary QM Specialist, whose contract it repeatedly renewed. Finizie
alleges that the initial withholding of the permanent position from her, combined with the
continued decision to employ a temporary employee also working in the QM area,
amounted to a deliberate underuse of her skills in retaliation for her prior EEO activity.
Finizie’s second claim stems from her first round of litigation against the VA.
After she appealed the 2002 judgment against her to our Court, the Director of the Third
Circuit Mediation Program scheduled a mediation. In December 2002, the Director
cancelled the mediation after reading the parties’ position papers, having concluded that
mediation would be fruitless. In her subsequent complaint, Finizie alleged that the VA

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4
had, for retaliatory reasons, failed to engage her in a good-faith settlement process.
Finizie’s third and fourth claims both relate to her non-selection for the position of
infection control nurse. In May 2002, the VA posted the job listing for that position. The
hospital interviewed six people for the job and ranked Finizie fourth. The hospital
offered the job to the top three candidates in order of ranking, each of whom turned it
down. Instead of then offering the position to Finizie, who met the minimal
qualifications, the hospital chose to offer the job, on an interim basis, to the first-choice
candidate, who accepted the interim position. The hospital then reposted the position in
January 2003. Finizie again applied and interviewed for the job. The hospital ultimately
hired a male applicant for the position. Finizie subsequently brought two complaints
related to this sequence of events—a retaliation claim for not hiring Finizie when the
position was initially listed, and a gender-discrimination claim for hiring a man instead of
her when the position was listed the second time.
Finizie’s final claim relates to her status as an ad hoc member of the VA Medical
Center’s Infection Control Committee. She alleges that she was the only member of the
Committee identified as merely an “ad hoc member,” and that the withholding of
unrestricted membership status from her was retaliatory.
In October 2007, shortly after Finizie’s five claims were taken out of civil
suspense and consolidated, the VA moved for summary judgment on each. Finizie
responded by moving, under Federal Rule of Civil Procedure 56(f), for more discovery,

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When the District Court consolidated these actions, it ordered Finizie to file an3
amended consolidated complaint incorporating the claims brought in her initial
complaints. In her amended complaint, however, Finizie failed to divide her claims into
separate counts. Accordingly, the Court referred to Finizie’s initial complaints in its
orders so as to identify clearly the claims on which it was granting summary judgment in
favor of the VA.
5
naming seven people she wanted to depose. On February 1, 2008, the Court granted
summary judgment to the VA on the claims relating to the VA’s alleged failure to
negotiate in good faith, its initial refusal to hire her for the infection control nurse
position, and its giving her ad hoc Infection Control Committee status. However, the3
Court granted Finizie’s Rule 56(f) motion with respect to Finizie’s remaining two claims
(the ones relating to the VA’s alleged delay in placing her in a permanent QM position
and its alleged discrimination in hiring a man for the infection control nurse position
when it was listed the second time). The Court set a discovery period of February 1, 2008
to March 14, 2008 and gave the parties until March 21, 2008 to make motions for
summary judgment.
On February 19, 2008, Finizie filed a motion to reconsider the District Court’s
grants of summary judgment. The Court denied this motion three days later. Shortly
thereafter, Finizie served a set of interrogatories and document requests on the VA
relating to her remaining two claims. She received those responses on March 17. The
VA moved for summary judgment on the remaining two claims on March 20. On March

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Later that same day, Finizie filed a motion to reconsider after the Court denied her4
motion to compel. The Court denied this motion to reconsider, citing the same reasons it
gave when denying the initial motion to compel.
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction5
under 28 U.S.C. § 1291.
As noted above, Finizie seeks to challenge on appeal (1) the District Court’s grants
of summary judgment on three of Finizie’s claims on February 1, (2) its denial of her
motion to compel on April 1, and (3) its grants of summary judgment on Finizie’s two
remaining claims on April 16. Technically, however, the final order from which Finizie
appeals is the Court’s May 6, 2008 denial of her motion to reconsider its grants of
summary judgment on April 16. Thus, while our jurisdiction over the Court’s April 16
order was preserved, see LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 225
n.6 (3d Cir. 2007) (a notice of appeal that identifies only the order denying a motion for
reconsideration “does not in itself deprive us of jurisdiction over the appeal from the
underlying order on the summary judgment motions”), we must assess our jurisdiction
over the additional orders Finizie seeks to challenge.
We are satisfied as to our jurisdiction to review these orders. A notice of appeal
must “designate the judgment, order or part thereof being appealed.” Fed. R. App. P.
3(c)(1)(B). However, we “liberally construe the requirements of Rule 3(c),” Pacitti by
Pacitti v. Macy’s, 193 F.3d 766, 776 (3d Cir. 1999), and an appellant’s “fail[ure] to refer
specifically to earlier orders disposing of other claims . . . does not preclude us from
reviewing those orders.” Shea v. Smith, 966 F.2d 127, 129 (3d Cir. 1992). Moreover,
because the District Court did not mention Federal Rule of Civil Procedure 54(b) in its
February 1, 2008 grant of partial summary judgment—or make an express determination
that there was “no just reason for delay,” Fed. R. Civ. P. 54(b)—we “cannot reasonably
conclude that the . . . Court intended to enter a partial final judgment pursuant to that
Rule.” Berckeley Inv. Group, Ltd. v. Colkitt, 259 F.3d 135, 144 (3d Cir. 2001).
Accordingly, we may review directly the Court’s February 1 grants of summary judgment,
as well as its denial of Finizie’s motion to compel. See Drinkwater v. Union Carbide
Corp., 904 F.2d 853, 858 (3d Cir. 1990) (“[S]ince . . . only a final judgment or order is
appealable, the appeal from a final judgment draws in question all prior non-final orders
6
31, Finizie filed a motion to compel, which the Court denied on April 1. The Court then4
granted summary judgment to the VA on the remaining claims on April 16. Finizie filed
a motion for reconsideration of the grants of summary judgment on April 30, which the
Court denied one week later. Finizie timely appealed.5

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and rulings.”) (quoting Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d
Cir. 1977)).
Exactly what Finizie appeals on this issue is not clear, as this section of her brief6
merely recites the case’s procedural history before concluding that “[t]he [C]ourt abused
its discretion by thwarting Finizie’s ability to develop a nuanced and factually complex
case.” Finizie’s Br. at 33. Our best guess is that she is appealing the denial of her motion
to compel, as she never renewed her Rule 56(f) motion after it was partially granted and
partially denied, and there does not appear to be any other order of the District Court to
which this particular line of argument might be linked.
In particular, instead of taking full advantage of the six-week discovery period the7
District Court granted, Finizie waited for more than three weeks to serve interrogatories
and document requests on the VA. After receiving the VA’s replies, Finizie waited
another two weeks—after discovery had closed and after the deadline to file motions for
summary judgment had passed—to request additional information from the VA and to
file a motion to compel after the VA refused that request. In addition, there is no
evidence in the record indicating that Finizie took, or attempted to take, any of the seven
depositions that she asserted she needed in order to withstand a motion for summary
judgment. Lastly, it appears that Finizie had approximately three and a half months for
7
II.
To review the bidding, Finizie appeals both the denial of her motion to compel
discovery materials and the various grants of summary judgment against her.
A.
She argues that the District Court erred in denying her motion to compel. A6
denial of a motion to compel is reviewed for “gross abuse of discretion.” Kinkead v.
Southwestern Bell Tel. Co., 49 F.3d 454, 457 (8th Cir. 1995); Lee v. Armontrout, 991 F.2d
487, 489 (8th Cir. 1993). We see nothing to suggest such an abuse of discretion here.
The record clearly indicates that Finizie was given the opportunity to obtain the discovery
she seeks and simply failed to do so. We thus affirm.7 8

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discovery in 2003–2004 relating to her delay of placement claim in addition to what the
Court granted in February 2008.
Finizie also alleges, as a distinct ground for appeal, that “The Trial Judge Exhibited8
Bias and Prejudice Against [her].” Finizie’s Br. at 33. We see nothing to suggest bias or
prejudice on the District Judge’s part. On the contrary, the record indicates that the
District Judge made every attempt to allow Finizie to build her case and that he treated
her claims with great care. We caution Finizie’s attorney about throwing such serious
allegations around lightly.
Our review of a District Court’s grant of summary judgment is plenary. See9
Scheidelmantle v. Slippery Rock Univ. State Sys., 470 F.3d 535, 538 (3d Cir. 2006).
8
B.
Next, Finizie argues that the District Court erred in concluding that she had not
presented sufficient evidence of discrimination or retaliatory behavior to withstand
summary judgment on any of her five employment-discrimination claims. In those9
claims, Finizie alleged that the VA: (1) retaliated against her when it delayed placing her
in the permanent QM Specialist position, while at the same employing a temporary
worker with similar responsibilities; (2) retaliated against her by failing to negotiate in
good faith; (3) retaliated against her when it initially did not select her for the infection
control nurse position, but instead filled the position on a temporary basis; (4) engaged in
sex discrimination when it did not select her for the infection control nurse position the
second time around and instead hired a man; and (5) retaliated against her when it made
her an ad hoc Infection Control Committee member. We agree with the District Court
that none of the claims should make it to a jury.
Each of Finizie’s claims is governed by the burden-shifting framework laid out in

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9
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, Finizie
bears the initial burden of establishing a prima facie case of discrimination. For her
retaliation claims, this means that she must show, inter alia, that she suffered some
adverse employment action at the hands of the VA. See Kachmar v. Sungard Data Sys.
Inc., 109 F.3d 173 (3d Cir. 1997). If Finizie succeeds in making out her prima facie case,
the burden of production (but not persuasion) then shifts to the VA to articulate a
legitimate non-discriminatory reason for the challenged action. If the VA does so, the
burden shifts back to Finizie to show that the VA’s proffered reason is mere pretext. See
McDonnell Douglas, 411 U.S. at 801–05.
We start with Finizie’s delay/underuse claim. The VA has stated a legitimate, non-
discriminatory reason for not assigning her the QM Specialist position until February
2001—it did not receive permission to fill the vacancy on a permanent basis until that
time. Finizie has offered nothing that could cause a reasonable jury to doubt that
explanation. That also takes care of Finizie’s associated argument relating to the VA’s
decision to continue to employ a temporary person with responsibilities that overlapped
with Finizie’s area of competence. If that decision were unconnected to the delay in
moving Finizie to the QM Specialist position, we do not see how it could have been an
adverse employment action against Finizie. We thus affirm the grant of summary
judgment on this claim.
Finizie’s claim alleging that the VA failed to negotiate in good faith in the Third

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10
Circuit mediation cannot succeed for an even simpler reason. The action she complains
of—cancelling the mediation—was undertaken by the Director of the Third Circuit
Mediation Program, not the VA. Thus, it cannot serve as the basis for an employment-
discrimination against the VA.
Finizie’s third and fourth claims—the ones relating to her non-selection for the
position of infection control nurse—fail at the third step of the McDonnell Douglas
analysis. The legitimate, non-discriminatory reasons offered by the VA for not hiring her
as an infection control nurse were that it (1) initially hired its first choice, albeit on a
contract basis, and (2) when it hired a man the second time around it was because he had
current infection control experience, while Finizie did not. Finizie’s various attempts to
show that these explanations are mere pretext revolve around emphasizing her own
qualifications for the position, not showing that the persons hired instead were
demonstratively less qualified. It is well-established that, under Title VII, an “employer
has discretion to choose among equally qualified candidates, provided the decision is not
based upon unlawful criteria.” Texas Dep’t of Cmty. Affairs v. Burdline, 450 U.S. 248,
269 (1981). Thus, Finizie has failed to show that the VA’s proffered reasons are mere
pretext.
Finally, Finizie’s claim stemming from her ad hoc committee status also cannot
succeed. That is because being accorded ad hoc committee status was not a “materially
adverse” action, and thus cannot serve as basis of an action for retaliation. See Burlington

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N. & Sante Fe Rwy. Co. v. White, 548 U.S. 53, 67 (2006) (“The antiretaliation provision
[of Title VII] protects an individual not from all retaliation, but from retaliation that
produces an injury or harm.”). Finizie argues that being placed on this status constituted a
“materially adverse” employment condition because all other committee members had
rights to attend all of the meetings, participate in all discussions, and receive copies of the
meeting minutes, while she was told that she only had to attend the meetings that involved
subject matter relating to her position. That is not sufficient to qualify. See id. at 68
(distinguishing between “material adversity” and “trivial harms” and following a
“reasonable employee” standard to make that distinction). We thus find that Finizie fails
even to state a prima facie case on this claim.
* * * * *
For these reasons, we affirm the judgments of the District Court.

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