Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2006

Dunleavy v. Mt Olive
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3922




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Dunleavy v. Mt Olive" (2006). 2006 Decisions. Paper 965.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/965


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 05-3922
                                  ________________

                                HARRY DUNLEAVY,
                                           Appellant
                                       vs.

                           MOUNT OLIVE TOWNSHIP;
                     MOUNT OLIVE BOARD OF EDUCATION;
                     GEORGE JOHNSON; MARILYN PERSICO;
                     MARTHA HATCH; LORRAINE WATSON;
                           J. FRANK VESPA-PAPALEO
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 04-cv-00122)
                     District Judge: Honorable Katherine S. Hayden
                    _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                 June 1, 2006
            BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES
                              Filed: June 2, 2006
                          _______________________

                                     OPINION
                              _______________________

PER CURIAM.

             Harry Dunleavy sued Mount Olive Board of Education, Marilyn Persico,

and Martha Harsh, alleging discrimination in violation of the Age Discrimination and

Employment Act (“ADEA”) and the New Jersey Law Against Discrimination

                                           1
(“NJLAD”).1 As the parties are familiar with the facts, we summarize them only briefly.

Essentially, Dunleavy claimed that Defendants passed him over for employment as a high

school math teacher in favor of less-qualified younger applicants.2 Defendants moved for

summary judgment, which the District Court granted. Dunleavy appeals.

              We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over the District Court’s order granting summary judgment. See Podobnick v.

U.S. Postal Service, 

, 589 (3d Cir. 2005).

              To analyze Dunleavy’s claims under the ADEA and the NJLAD, we apply

the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 

(1973), modified slightly for age discrimination cases. See Keller v. Orix Credit

Alliance, Inc., 

, 1108 & 1114 n.5 (3d Cir. 1997) (en banc). In the

McDonnell Douglas framework, a plaintiff must establish a prima facie case. See 

A plaintiff claiming age discrimination in hiring must show (1) that the plaintiff, at

40 years or older, was a member of the protected class; (2) that the plaintiff applied for

and was qualified for the job; (3) that the plaintiff was rejected despite his qualifications;

and (4) that the employer ultimately filled the position with someone sufficiently younger

to allow an inference of age discrimination. See Fowle v. C & C Cola, a Div. of ITT-


   1
     Dunleavy also brought, but later voluntarily dismissed, other claims against other
parties.
   2
     Dunleavy was 60 years old during the time in question. Defendants offered the
teaching position to a 24-year-old, who accepted it, but later rescinded her acceptance.
Defendants then hired another teacher who was 24 years old.

                                               2
Continental Baking Co., 

, 61 (3d Cir. 1989). If a plaintiff establishes a prima

facie case, the burden shifts to the defendants to articulate a legitimate, nondiscriminatory

reason for the failure to hire. See 

defendants offer such a reason, the plaintiff

then has the burden to show that the proffered reason was a pretext. See 

may show pretext directly by persuading the court that a discriminatory reason more

likely motivated the employer, or indirectly by showing that the employer’s proffered

explanation is unworthy of credence. See 

              Defendants concede that Dunleavy satisfied the first, third, and fourth parts

of the prima facie case. They argue that Dunleavy did not show that he was a qualified

applicant for the teaching position. Considering the evidence in the light most favorable

to the non-moving party, however, we agree with the District Court that Dunleavy

showed that he was qualified. After all, he was highly-educated, held the requisite

certification, and had teaching experience. Also, he was among those candidates singled

out to sit for an interview and to give a demonstration lesson.

              Although Dunleavy established a prima facie case of age discrimination, the

Defendants met their burden to show a legitimate, nondiscriminatory reason for not hiring

him. Defendants, in assessing factors to determine which candidate to hire, heavily

weighted the quality of the demonstration lesson. (Appellees’ App. at Da21.) Defendants

asserted that Dunleavy’s lesson was mediocre, citing, among other perceived

shortcomings, his failure to engage students in the topic. (Id. at Da22.) Defendants

contrasted Dunleavy’s performance with the applicants ultimately hired. They deemed

                                              3
both candidates’ performances superior to Dunleavy’s, finding favor with the teacher-

student interactions, and the level of difficulty of the lesson plans. (Id. at Da23-Da24.)

              Dunleavy did not show that Defendants’ proffered reason was a pretext. To

show pretext, Dunleavy relied (and continues to rely) on his argument that he was the

superiorly qualified candidate.3 However, he did not produce evidence of the other

candidates’ supposedly inferior qualifications. Nonetheless, whatever the strength of

Dunleavy’s résumé, Dunleavy did not undermine Defendants’ assertion that they used

other factors, including the strength of the candidates’ practical teaching ability (as shown

through the demonstration lessons) to make their ultimate hiring decision. Furthermore,

Dunleavy did not present evidence to show that Defendants improperly, or even

incorrectly, assessed his lesson as “mediocre.”



   3
     In the District Court, Dunleavy also argued that the proffered reason was pretextual
because Defendants inquired into his employment status after the first candidate withdrew
her acceptance. In addition, he claimed that Mount Olive School District
disproportionately hired younger teachers, citing the Mount Olive hiring profile for the
2002-2003 school year as evidence. Dunleavy does not raise either of these issues on
appeal, so we consider them waived. See Harvey v. Plains Twp. Police Dep’t, 

, 192 (3d Cir. 2005). In his brief before us, as well as through his motion to
supplement the record and his motion for contempt, Dunleavy tries to supplement the
record and raise new issues and arguments on appeal, but he may not do so. See Harris v.
City of Philadelphia, 

, 845 (3d Cir. 1994). His motion to supplement and his
motion for contempt are denied. We note that although Dunleavy requests us to hold one
Defendant, as well as Defendants’ counsel, in contempt, he points to no order of this
Court that they violated. See John T. ex rel. Paul T. v. Delaware County Intermediate
Unit, 

, 552 (3d Cir. 2003) (holding that a valid court order is among the
prerequisites to a contempt finding). To the extent that the parties responding to
Dunleavy’s motion for contempt request fees and costs, their request is denied. They
have failed to provide any factual or legal basis for such an award.

                                              4
             In sum, we are not faced with the question whether Defendants made the

best business decision; we consider only whether the real reason not to hire Dunleavy was

discrimination. See 

. We hold that the Dunleavy did not present

evidence to show that Defendants’ proffered reason was pretext for discrimination.

Therefore, the District Court properly granted summary judgment in favor of Defendants.

Accordingly, we will affirm.




                                           5