Third Circuit disposition — 091904np-pdf

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1904
___________
ALI WARIS,
Appellant
vs.
HEARTLAND HOME HEALTHCARE SERVICES, INC.
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 07-03344)
District Judge: Honorable Michael M. Baylson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 4, 2010
Before: SLOVITER, CHAGARES and WEIS, Circuit Judges
(Opinion filed: February 17, 2010)
___________
OPINION
___________
PER CURIAM.
Ali Waris appeals pro se from the order of the United States District Court
for the Eastern District of Pennsylvania granting summary judgment and dismissing his
discriminatory failure to hire action.

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Minimal qualifications required a nursing diploma or degree in business,1
health care, nursing, or a related field, and a minimum of three to five years experience in
an administrative or supervisory capacity in a home health agency, hospice or other
related health program.
2
The District Court’s opinion thoroughly recounts the undisputed facts and,
thus, we will summarize here. In March 2006, Waris, an Asian-Indian native of India,
applied on-line for a job that Heartland Home Healthcare Services, Inc. (“Heartland”)
posted for an administrator of its home health care services office in Plymouth Meeting,
Pennsylvania. He was sixty years old at the time. Heartland’s senior recruiter, Susan
Obriot, screened all applicants for the position, eliminating those who lacked minimal
qualifications. Finding that Waris met the minimal qualifications for the job, Obriot sent1
his resume along with others to the person responsible for hiring an administrator,
Heartland’s Regional Director of Operations, Leslie Mackey.
Mackey initially picked Waris and three other candidates for interviews.
Obriot expressed a concern, however, that Waris lacked the necessary knowledge and
experience for the position. Obriot based her opinion on telephone conversations with
Waris early in the application process and on his resumé, which showed that he had
unrelated experience and gaps in employment. On Mackey’s direction, Obriot conducted
additional pre-screening. She sent Waris an e-mail correspondence on May 30, 2006, to
which she attached a short questionnaire containing seven essay-type questions that were
to be answered in one day. Waris was the only candidate to receive such a questionnaire.

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Waris admitted that he spent about thirty minutes on the questionnaire.2
(See Waris deposition, Defendant’s Stmt. of Undisputed Facts, Exh. 25, at 407.)
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According to Mackey, Waris’s response, submitted a day later, gave vague, one sentence
responses that failed to shed any further light on his experience. Mackey inferred from
Waris’s insufficient response that he did not want the job and she decided not to interview
him. As the District Court correctly noted, the record does not reveal exactly when2
Heartland first notified Waris that he was no longer a candidate, but it does indicate that
he was notified on June 29, 2006.
Mackey initially offered the Plymouth Meeting administrative position to a
caucasian male candidate, Gregory Field, on June 23, 2006, which he did not accept.
Mackey eventually hired Kathleen Lamb in October 2006. Lamb was a fifty-two-year-old
caucasian American woman with a nursing degree who was employed at the time as the
Director of the Sacred Heart Hospice program. Her prior experience included seven years
in management at Lifequest Homecare.
After exhausting his administrative remedies, Waris filed an employment
discrimination complaint pro se in the Montgomery County Court of Common Pleas in
July 2007, alleging discrimination in hiring on account of his race and national origin in
violation of Titles VI and VII of the Civil Rights Act of 1964 (hereafter “Title VI” and
“Title VII”) and similar provisions of the Pennsylvania Human Relations Act (“PHRA”).
He also claimed race discrimination under 42 U.S.C. § 1981, and age discrimination in

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Waris also alleged common law fraud, and violations of Pennsylvania’s3
Unfair Trade Practices and Consumer Protection Act, which he later withdrew
voluntarily.
By dismissing all of Waris’s pending claims, the District Court implicitly4
denied his Title VI and § 1981 race discrimination claims and his state law claims. Waris
has not presented argument in his appellate brief regarding the denial of his state law
claims or of his claims under § 1981 and Title VI. Thus, we deem these claims to be
waived on appeal. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue
is either not set forth in the statement of issues presented or not pursued in the argument
section of the brief, the appellant has abandoned and waived that issue on appeal.”).
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hiring in violation of the Age Discrimination in Employment Act (ADEA). Heartland3
removed the matter to federal court. After a contentious discovery period (the details of
which are set forth in the District Court’s opinion at 10-12), Heartland and Waris filed
cross-motions for summary judgment, and Waris filed motions to vacate, stay, and recuse
pursuant to 28 U.S.C. §§ 144 and 455(a). The District Court denied Waris’s recusal
motion in December 2008. In February 2009, the court granted summary judgment for
Heartland, denied Waris’s pending motions (including his motion for summary
judgment), entered final judgment for Heartland, and closed the case. The District Court4
determined that, in the absence of any record evidence showing that Heartland’s stated
reason for declining to hire him was pretextual under McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-03 (1973), Waris’s employment discrimination claims failed as a
matter of law. Waris filed an assortment of post-trial motions, all of which the District
Court denied. Waris filed this timely appeal.
We have jurisdiction to review the District Court’s final order pursuant to

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28 U.S.C. § 1291. We exercise plenary review over a District Court’s grant of summary
judgment pursuant to Fed. R. Civ. P. 56(c), and we apply the same standard that the
District Court should have applied. See Regents of Mercersburg College v. Republic
Franklin Ins. Co., 458 F.3d 159, 163 (3d Cir. 2006). Summary judgment is proper when,
viewing the evidence in the light most favorable to the non-movant, there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. See
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001); Fed. R. Civ. P. 56(c).
Our task is not to second-guess employment decisions. Rather, we must
determine whether the employment decisions were motivated by an illegal discriminatory
purpose. In employment discrimination cases under Title VII and the ADEA, we apply
the burden-shifting analysis set forth in McDonnell Douglas. In a failure-to-hire case
such as Waris’s, a plaintiff must make a prima facie showing that: (1) he is a member of a
protected class; (2) he was qualified for the position sought; (3) he was rejected despite
being qualified; and (4) under circumstances that raise an inference of discriminatory
action, the employer continued to seek out individuals with qualifications similar to
plaintiff’s to fill the position. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.
2003) (citing McDonnell Douglas, 411 U.S. at 802). Once the plaintiff presents a prima
facie case of discriminatory hiring, the burden shifts to the employer to show that the
action it took was not discriminatory. Id. If an employer presents a non-discriminatory
reason for the decision not to hire, the burden shifts to the plaintiff to “present evidence

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contradicting the core facts put forward by the employer as the legitimate reason for its
decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). A plaintiff “must
submit evidence which (1) casts sufficient doubt upon each of the legitimate reasons
proffered by the defendant so that a factfinder could reasonably conclude that each reason
was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely
than not a motivating or determinative cause of the adverse employment action.” See
Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
We agree with the District Court that Waris established a prima facie case
of race and age discrimination and that Heartland offered a legitimate, nondiscriminatory
reason for declining to hire him. We further conclude that Waris failed to rebut
Heartland’s proffered legitimate non-discriminatory reason. The District Court properly
rejected Waris’s argument that his educational achievements showed that he was better
qualified for the administrative position than Lamb. Both Waris and Lamb satisfied the
minimum educational qualifications for the job. Although Waris had about two years
more overall work experience than Lamb, Waris’s homecare experience was not as
current as Lamb’s. Thus, we conclude that the differences between Lamb and Waris were
not so disparate that a reasonable factfinder could rationally conclude that Waris was
clearly the better candidate for the job. See Mlynczak v. Bodman, 442 F.3d 1050, 1059
(7th Cir. 2006) (evidence of applicants’ competing qualifications does not constitute
evidence of pretext unless the differences in qualifications are so favorable to the plaintiff

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that there can be no dispute among reasonable persons of impartial judgment that the
plaintiff was clearly better qualified for the position at issue).
Waris contends that Heartland treated him differently from other similarly
situated Caucasian candidates (Alan Kagan and Kevin Massino) by requiring that he
complete a questionnaire. He maintains that his special treatment shows that Heartland’s
proffered reason for deciding not to interview or hire him was fabricated. We agree with
the District Court that material differences between Waris’s application and those of
candidates Kagan and Massino show that neither Kagan nor Massino was similarly
situated to Waris. Kagan’s and Massino’s most recent experiences (which were full-time)
were more relevant to the job at Heartland than Waris’s as a college instructor.
Moreover, Waris’s application revealed two gaps in employment. In 2005, he was
employed for a total of two months as a full-time administrator at a health center. In
2006, he was employed in the spring semester as a part-time instructor of two college-
level courses, human anatomy/physiology and medical office management. Waris
protests that Heartland should have interviewed him, but Waris is not entitled to an
interview and there is nothing in this record to suggest that Heartland’s choice to employ
a screening questionnaire in his case was inherently invidious. Based on the foregoing,
no reasonable factfinder could find that Heartland’s decisions to have Waris complete a
questionnaire and subsequently to disqualify him on account of his insufficient answers
were unworthy of credence. Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 256

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Additionally, Waris claims that Obriot’s statements to him were false5
because no one was hired at the time of her e-mail correspondence with him in June-early
July 2006, and the person who was eventually hired, Kathleen Lamb, did not submit an
application until August or September 2006. The record evidence shows, however, that
Mackey sent an e-mail message to Obriot on June 23, 2006, notifying Obriot of her
decision to offer the Plymouth Meeting position to Field. Although Obriot did not
mention Field by name in her June 29, 2006 response to Waris’s inquiry about the
Plymouth Meeting position, it is fair to infer that she was referring to Field because he
was the only person who was offered the Plymouth Meeting job at that time. Obriot did
not know until July 9, 2006, or thereafter, that Field had declined Mackey’s job offer.
(Pltff. Motion for summary judgment, Exh. “R.”)
On June 28, 2006, Waris sent the following e-mail correspondence to6
Obriot: “Susan: I did not hear back from you regarding the Plymouth Meeting
Administrator position. Also, as I have requested [from] you earlier, I’d greatly
appreciate it if you let me know the reason why I have been rejected for the numerous
positions I applied for with your company in the last 1-2 years. Your input will help me
improve. Thank you.” (Pltff. Motion for summary judgment, Exh. “I.”) On June 29,
2006, Obriot responded: “I did get back to you and you e-mailed me back and thanked me
for letting you know. You were not selected for the administrator position because they
went with a candidate that had more experience.” (Id. at Exh. “J.”) On July 2, 2006,
Waris sent Obriot another e-mail correspondence stating, “No, I applied for home care
administrator positions in the last several months. And I applied through you.” (Id. at
Exh. “Q.”) Obriot responded on July 5, 2006, that “I filled the position with local
candidates who were already in the interviewing process prior to receiving your resume. I
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(1981).
Next, Waris contends that Heartland’s proffered reason was pretextual
based on the allegedly inconsistent statements Obriot made in two e-mail responses dated
June 29 and July 5, 2006, in which, allegedly, she explained why Waris was not hired for
the Plymouth Meeting job. We disagree that Obriot’s statements are inconsistent.5
Unlike her e-mail response to Waris dated June 29, 2006, Obriot’s July 5 e-mail response
did not pertain to the Plymouth Meeting position. In any event, even assuming that both6

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will keep your resume on file for future opportunities.” (Id.)
Obriot’s e-mail responses were not inaccurate. Field’s resumé indicates7
that he had worked continuously in home healthcare in a variety of full-time management
positions for about sixteen years (1989 through 2006). Waris, on the other hand, had a
total of eleven years of home healthcare experience as a full time executive director
(1986-1993 and 2000-2004) and worked as a part-time consultant for 4 years in the
1990’s. As for Obriot’s second explanation that Heartland picked local candidates,
Field’s resumé indicates that his work was based largely in Pennsylvania. Waris’s most
recent full-time experience in healthcare was in Texas and Delaware.
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of Obriot’s e-mail responses referred to the Plymouth Meeting position, we conclude that
they are insufficient to discredit Heartland’s proffered reason for declining to hire Waris.
By the time Obriot engaged in e-mail correspondence on June 29, 2006, she knew that
Waris was no longer being considered for the Plymouth Meeting position because
Mackey had told her in an e-mail correspondence dated June 23, 2006, that she had
decided to offer the job to Field. There is no record evidence, however, that Obriot knew
Mackey’s specific reason for eliminating Waris as a candidate for that position. The
reasons Obriot gave in her e-mail responses to Waris addressed only why Field, in
particular, was offered the Plymouth Meeting administrative position instead of Waris,
(more experience and a local candidate). Notably, she did not address why or when7
Waris was eliminated as a serious candidate. To survive summary judgment on the issue
of pretext, it is not enough for a plaintiff to show that an employer’s decision was
misguided or wrong. See Fuentes, 32 F.3d at 765 (3d Cir. 1994). For all of the foregoing
reasons, we conclude that a reasonable juror could not rationally infer from Obriot’s

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statements that Heartland’s reason for not hiring Waris was not credible.

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We review the District Judge’s decision not to recuse for abuse of
discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.
2000). After a careful and independent review of the record, we find nothing in it to
indicate that the District Judge in Waris’s case was personally biased against him under
28 U.S.C. § 144, or that a reasonable person would harbor doubts as to the judge’s
impartiality under 28 U.S.C. § 455(a). See United States v. Rosenberg, 806 F.2d 1169,
1173 (3d Cir. 1986) (§ 144 standard); In re Prudential Ins. Co. of Am., 148 F.3d 283, 343
(3d Cir. 1998) (§ 455(a) standard)). Even assuming that Waris’s affidavit in support of
his § 144 motion was timely filed, the District Court properly held that it was legally
insufficient to state personal bias. We agree with the District Court that Waris’s
allegations amounted to mere disagreement with the court’s adverse rulings, which does
not form a sufficient basis for recusal under § 144 or § 455(a). See Securacomm, 224
F.3d at 278.
Accordingly, we will affirm the judgment of the District Court.
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