Cherie Hugh v. BUTLER COUNTY FAMILY YMCA On Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1459
CHERIE HUGH,
Appellant
v.
BUTLER COUNTY FAMILY YMCA
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 01-cv-02179)
District Judge: Honorable Maurice B. Cohill, Jr.
Argued on 1/11/05
Before: ROTH, and CHERTOFF*, Circuit Judges
and SHAPIRO**, District Judges.
*Judge Chertoff heard oral argument in this case but resigned
prior to the time the opinion was filed. The opinion is filed by
quorum of the panel. 28 U.S.C. § 46(d).
**Honorable Norma L. Shapiro, District Judge for the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.

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(Opinion filed: August 12, 2005)
NEAL A. SANDERS, Esquire (ARGUED)
1924 North Main Street Ext.
Butler, PA 16001
Attorney for Appellant
Adam M. Barnes, Esquire (ARGUED)
Trisha A. Zaken, Esqiure
Paul J. Walsh, III, Esquire
Walsh, Collins & Blackmer
707 Grant Street
Suite 1400, The Gulf Tower
Pittsburgh, PA 15219
Attorneys for Appellee
OPINION OF THE COURT
ROTH, Circuit Judge:
This case is an appeal from the District Court’s grant
of summary judgment for Defendant Butler County Family
YMCA in a gender-based employment discrimination suit

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brought by a former employee, Cherie Hugh.
I. Jurisdiction and Standard of Review
The District Court had subject matter jurisdiction of
this case pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000 et seq and 28 U.S.C. § 1331. We have
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over the District Court's
grant of summary judgment and apply, de novo, the same
standard that the District Court applied. Doe v. Cty. of
Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001). A grant of
summary judgment is appropriate where the moving party has
established that there is no genuine dispute of material fact
and “the moving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986) (citing Fed. R. Civ. P. 56(c)).
Where the defendant is the moving party, the initial burden is
on the defendant to show that the plaintiff has failed to
establish one or more essential elements to her case. Celotex,
477 U.S. at 323-24. On a motion for summary judgment, a
district court must view the facts in the light most favorable to
the non-moving party and must make all reasonable
inferences in that party's favor. See Marzano v. Computer Sci.
Corp., 91 F.3d 497, 501 (3d Cir. 1996).
To survive a motion for summary judgment, the
non-moving party cannot solely rest upon her allegations in
the pleadings, but rather must set forth specific facts such that
a reasonable jury could find in the non-moving party's favor,
thereby establishing a genuine issue of fact for trial. Fed. R.
Civ. P. 56(e). While the evidence that the non-moving party
presents may be either direct or circumstantial, and need not

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be as great as a preponderance, the evidence must be more
than a scintilla. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
II. Background
In January 1998, Hugh was hired as a part time
volunteer recruiter by the Butler County Family YMCA and,
in June 1999, she was made a full time volunteer coordinator.
In May 2000, she was named Director of the Big Brothers,
Big Sisters program at the YMCA. In April 2001, Hugh was
informed that she was being terminated for poor performance
because she was lacking in leadership skills. Specifically,
Hugh’s supervisor stated that she was terminated because she
had cancelled a meeting, because a sign for the program had
not been completed, and because she had dressed
inappropriately for a meeting. In neither the termination letter
nor a subsequent termination meeting did the YMCA inform
Hugh that she was being terminated due to her lack of
qualifications for the position.
The YMCA’s Employee Handbook specifically
requires an employee’s supervisor to attempt to resolve any
problems and provide written notification prior to termination.
Hugh received no negative performance reviews or criticisms,
by written notification or otherwise, prior to her discharge.
Hugh was replaced by a male employee at a higher salary than
Hugh had been paid.
Hugh timely filed a complaint with the Equal
Employment Opportunity Commission and received a right to
sue letter in August 2001. She then filed this complaint
seeking back pay, front pay, and compensatory damages.

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III. Summary Judgment
In granting summary judgment for the YMCA, the
District Court concluded that Hugh did not establish a prima
facie case of discrimination because she admitted that she was
not initially qualified for the position. The District Court did
not reach the question of whether the YMCA’s reasons for
termination were pretextual. Hugh contends that the District
Court erred in both regards. We agree.
To prevail on her Title VII claim, Hugh must initially
prove a prima facie case by showing that she is a member of a
protected class, qualified for the job from which she was
discharged, and that others, not in the protected class, were
treated more favorably. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-3, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
If Hugh establishes a prima facie case, the burden shifts to the
YMCA to set forth a legitimate non-discriminatory reason for
the discharge. Id. at 804-5. If the YMCA does so, then Hugh
must show that the reasons asserted are a pretext for
discrimination. To withstand a motion for summary
judgment, Hugh must make a prima facie showing of
discrimination and point to “evidence establishing a
reasonable inference that the employer’s proffered
explanation is unworthy of credence. Sorba v. Penn Drilling
Co., 821 F.2d 200, 205 (3d Cir. 1987).
A. Prima Facie Case
The job description for Director of the Big Brothers,
Big Sister program included the requirement that the applicant
have a degree in social work and experience as a caseworker.
The YMCA knew that Hugh did not have either of these
qualifications when it hired her for the position. The YMCA

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states that it hired Hugh despite her lack of a degree and
caseworker experience because it wanted to give her a chance
to do the job, based on her experience in her previous
positions with the YMCA. The YMCA argued to the District
Court, and argues here, that because Hugh did not meet these
qualifications, she was not qualified for the position and thus
cannot present a prima facie case of discrimination.
The YMCA relies on a single case for the proposition
that objective qualifications for a position should be
considered in evaluating an employee’s prima facie case.
Weldon v. Kraft, Inc., 896 F.2d 793 (3d Cir. 1990). In
Weldon, there was no dispute over whether the employee
possessed the background qualifications for the position for
which he was hired. Rather, the employer contended that the
legitimate reason for the employee’s termination was that he
did not possess subjective qualities such as leadership,
productivity, and efficiency. We held that those subjective
qualities were not a necessary part of the employee’s prima
facie case. Instead, these qualities were appropriately
considered at the second stage of the analysis, when
considering whether the lack of these qualities was a pretext
for discriminatory termination. Weldon, 896 F.2d at 798-99.
The holding in Weldon does not control the outcome here
because of the difference in the facts of this case. Here, the
issue is whether Hugh met the objective qualifications of the
position for which she was hired and whether, having hired
Hugh, the YMCA can now justify its termination by pointing
to a lack of objective qualifications.
Contrary to the District Court’s determination, we have
found that satisfactory performance of duties, leading to a
promotion, does establish a plaintiff’s qualification for a job.

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Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989).
Although the facts of Jalil were not identical to those here, the
principle is the same. The YMCA chose to promote Hugh,
despite her lack of a degree and of caseworker experience. It
is a fair inference that the decision to promote Hugh was
based on her satisfactory performance in her two previous
positions with the YMCA. Once the YMCA made this
choice, it was deeming Hugh’s prior satisfactory performance
sufficient qualification for the position of Director of the Big
Brothers, Big Sisters program.
The YMCA, having promoted Hugh with full
knowledge of her background, cannot now say that she was
unqualified for the position, her promotion was an
acknowledgment that she was qualified at the time. This
conclusion would, of course, be different if Hugh had not
disclosed information regarding her qualifications or if she
had misrepresented her qualifications. There are no such
facts here, and the YMCA admits that it had full knowledge
of her background and qualifications. Thus, the District Court
erred in concluding that Hugh did not establish a prima facie
case because she admitted she did not meet the published
qualifications for the Director position.
B. Reasons for Discharge
Having found that Hugh did not demonstrate a prima
facie case, the District Court did not reach the question of
whether the YMCA’s reasons for termination were pretextual.
The YMCA argues that even if a prima facie case has been
established, the reasons for termination were legitimate and
non-discriminatory. Our review of the record does not bear
out such a conclusion.

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When a plaintiff, who was hired despite not possessing
the objective qualifications listed in a job description, does
not subsequently adequately perform her job, the employer
can terminate the employee for performance-based reasons.
For that termination to be proper, however, it must not be
based on discriminatory motives. For example, if a supervisor
had filed reports of unsatisfactory performance or had
conversations with the employee about unsatisfactory
performance before the termination occurred, that evidence
would support a non-discriminatory finding. If, however,
there was no such evidence and there was evidence of
discriminatory behavior, then the employer’s performance-
based reasons could be found to be pretextual. If there are
issues of fact with regard to either evidence of negative
performance reviews or discriminatory behavior, then the
determination of the disputed facts must go to the jury.
In this case, the record does not reflect any complaints
or warnings to Hugh regarding her performance, despite the
fact that the YMCA Employee Handbook requires supervisors
to attempt to resolve problems through counseling or
complaints prior to termination. In addition, Hugh has
presented evidence of a series of interactions with her
supervisors that suggest discriminatory motives. Specifically,
the male members of the Advisory Council, the body to which
Hugh reported, made program decisions without consulting
Hugh, spoke around her at meetings, went to Hugh’s male
predecessor instead of her with questions, and generally
treated Hugh with disrespect. In addition, the President of the
Advisory Council refused to return Hugh’s phone calls, a
practice he did not engage in with Hugh’s male predecessor.
Finally, Hugh’s male supervisor, who was also her

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predecessor, had a series of conversations with Hugh focusing
on the difference her gender would make in her new position,
and specifically told Hugh that she should not take over his
responsibilities interacting with the local Rotary Club.
The YMCA contends that there were two reasons for
Hugh’s discharge. First, in its pleadings in this case, the
YMCA stated that it terminated Hugh because she did not
have the requisite qualifications for her position. As
discussed above, an employer cannot choose to promote an
employee despite a known lack of qualifications and then rely
on the lack of those qualifications as a reason for termination.
Rather, the YMCA must show reasons for terminating Hugh
based on her performance in the position.
Second, when the YMCA terminated Hugh, she was
told that she was being terminated for poor performance,
specifically for cancelling a meeting, not wearing appropriate
attire to a meeting, and failing to order a new sign for the
program. Prior to her termination, Hugh was never
approached regarding these problems. In addition, Hugh
presents evidence that these reasons are not entirely supported
by the record, including evidence that Hugh had made
alternate arrangements for the meeting, which was ultimately
cancelled by her supervisor, and evidence that Hugh did order
the new sign, but it had not yet been delivered.
Thus, as Hugh has presented evidence supporting the
reasonable inference that the YMCA’s reasons for her
termination are pretextual, there are issues of fact regarding
the reasons for Hugh’s termination. Viewing the evidence in
Hugh’s favor, there is far more than a scintilla of evidence
supporting her claim that she was terminated for
discriminatory reasons. Accordingly, it is proper for a jury to

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view this evidence and resolve whether Hugh was terminated
for reasons based on her performance or based on
discriminatory motives.
IV. Conclusion
For the reasons stated above, the District Court erred in
granting summary judgment for the YMCA based on the
finding that Hugh had not proven a prima facie case. The
District Court’s grant of summary judgment will be reversed
and the case will be remanded to the District Court for
proceedings consistent with this opinion.

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