Bruce D. Bisbing v. LEHIGHTON AMBULANCE ASSOCIATION, INC. Bruce Bisbing

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2275
BRUCE D. BISBING
v.
LEHIGHTON AMBULANCE
ASSOCIATION, INC.
Bruce Bisbing,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 02-cv-01550)
District Judge: James M. Munley
Argued on April 20, 2005
BEFORE: ROTH, FUENTES and BECKER, Circuit Judges
(Opinion Filed July 29, 2005)
Richard L. Orloski, Esquire (Argued)
Orloski, Hinga, Pandaleon & Orloski
111 North Cedar Crest Blvd.
Allentown, PA 18104
Counsel for Appellant

-- 1 of 8 --

2
Paul J. Dellasega, Esquire (Argued)
Laura C. Gargiulo, Esquire
James K. Thomas, II, Esquire
Thomas, Thomas & Hafer
305 North Front Steet
P.O. Box 999
Harrisburg, PA 17108
Counsel for Appellee
OPINION
ROTH, Circuit Judge:
This case is an appeal in an employment discrimination suit brought by a former
employee, Bruce Bisbing, against Lehighton Ambulance Association, Inc. The District
Court denied Bisbing’s motion for reconsideration of its grant of summary judgment for
Lehighton and Bisbing now appeals. Because we find that Lehighton had legitimate,
non-discriminatory reason for terminating Bisbing, we will affirm the judgment of the
District Court.
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. We have appellate jurisdiction

-- 2 of 8 --

3
pursuant to 28 U.S.C. § 1291.
Federal Rule of Appellate Procedure 3(c)(1)(B) requires that the notice of appeal
“designate the judgment, order, or part thereof being appealed.” Although Bisbing did
not name the order granting summary judgment in his notice of appeal, we may exercise
jurisdiction over orders not named in the notice of appeal “if there is a connection
between the specified and unspecified order, the intention to appeal the unspecified order
is apparent and the opposing party is not prejudiced and has a full opportunity to brief the
issues.” Williams v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989). Those requirements are
met here, as the motion for reconsideration was predicated on the grant of summary
judgment and the parties briefed and argued the issue of whether summary judgment was
appropriate. Further, both parties agreed at oral argument that the summary judgment
motion is properly before us.
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

-- 3 of 8 --

4
to his case. Celotex, 477 U.S. at 323-24. On a motion for summary judgment, we 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).
II. Background
Bisbing was employed as a paramedic by Lehighton beginning in 1996. In 2001,
Bisbing’s wife, Michelle Bisbing, applied for a volunteer position with Lehighton and
was rejected. In June 2001, Michelle Bisbing filed a claim of gender discrimination
against Lehighton. In November 2001, Bisbing was the subject of a citizen complaint.
As a result of this complaint, he received a memo and had a meeting with his supervisor,
Mark Walck, and a subsequent meeting with Joni Gestl, the lead supervisor. A few days
after Bisbing’s meeting with Gestl, Bisbing was terminated.
Bisbing then filed this suit, alleging retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000 et seq. The District Court granted Lehighton’s motion for
summary judgment and Bisbing appealed.
III. Summary Judgment
The District Court granted summary judgment for Lehighton, concluding that
Bisbing had established neither that he was engaged in a protected activity nor that there

-- 4 of 8 --

5
was a causal connection between his activity and his termination. Thus, the District Court
concluded, Bisbing had not established a prima facie case and summary judgment was
appropriate.
To prevail on his Title VII retaliation claim, Bisbing must prove a prima facie case
by showing that he engaged in a protected activity, that he was the subject of an adverse
employment action, and that there was a causal connection between his activity and the
adverse action. Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997). If
Bisbing establishes a prima facie case, the burden shifts to Lehighton to set forth a
legitimate non-discriminatory reason for the discharge. Fuentes v. Perksi, 32 F.3d 759,
765 (3d Cir. 1994). If Lehighton does so, then Bisbing must show that the reasons
asserted are a pretext for discrimination. To withstand a motion for summary judgment,
Bisbing 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).
While the District Court granted summary judgment on the ground that Bisbing
had not established his prima facie case, we will not affirm on that issue. We focus
instead on the clearer issue – Lehighton had a legitimate, non-discriminatory reason for
terminating Bisbing. The evidence plainly shows that Bisbing’s interactions with his
superiors following the citizen complaint present a legitimate reason for his discharge.
On November 13, 2001, Bisbing and his supervisor, Walck, had a conversation

-- 5 of 8 --

6
regarding the citizen complaint. After that conversation, both Bisbing and Walck had
separate conversations with Gestl, the lead supervisor. Walck claimed that Bisbing was
being insubordinate and Bisbing maintained that he was not. Thus, at the time Gestl met
with Bisbing, she had only each man’s account of the meeting. However, after Gestl’s
meeting with Bisbing, she received a letter from William Mullin, a coworker and friend
of Bisbing, who had overheard the conversation between Bisbing and Walck. Mullin’s
letter describes Bisbing as “agitated” and with a “less than desirable attitude.” Mullin
also describes Bisbing as aggravated and yelling at Walck. After Gestl received this
letter, she consulted the President of Lehighton and terminated Bisbing. In addition,
Bisbing admits in his testimony for this case that he was frustrated and raised his voice at
Walck.
This evidence clearly shows that Bisbing was insubordinate to his superiors, which
is a sufficient, legitimate reason for termination. In addition, before this incident Bisbing
had received several work violations and had had problems with his employment
relationship. This collective evidence sufficiently demonstrates that Lehighton
terminated Bisbing for legitimate reasons.
Bisbing has not shown that this reason for termination is pretextual. We have held
that “to avoid summary judgment, the plaintiff’s evidence rebutting the employer’s
proffered legitimate reasons must allow a factfinder reasonable to infer that each of the
employer’s proffered non-discrimintory reasons was either a post hoc fabrication or

-- 6 of 8 --

7
otherwise did not actually motivate the employment action (that is, the proffered reason is
a pretext).” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citation omitted).
Bisbing has not met this standard. He argues that the fact that Gestl did not terminate him
during their conversation shows that he was not actually terminated for his insubordinate
behavior. However, between that conversation and the termination, Gestl received
Mullin’s letter and consulted with Lehighton’s president, both activities supporting a
legitimate discharge. There was also evidence that Bisbing’s insubordination had deeply
affected Walck, who had suggested that he might resign if Bisbing remained at Leighton.
There was thus substantial evidence for the sincerity of Gestl’s stated reason for firing
Bisbing; against this, Bisbing offered only the fact that Gestl waited a while before
terminating him. No reasonable factfinder could infer from these facts that the legitimate
reason was a post hoc fabrication.
Similarly, Bisbing points to comments by Gestl and Walck, referring to his wife’s
discrimination claim, as evidence that he was being terminated in retaliation for the claim.
These random comments, which neither express displeasure or animus against Bisbing’s
wife nor indicate any perception of Bisbing acting for his wife, are not sufficient to allow
a reasonable factfinder to infer that Bisbing’s insubordination did not motivate his
termination. Bisbing thus has failed to bring forth evidence to support a reasonable
inference of discrimination to overcome Lehighton’s legitimate reason for termination.

-- 7 of 8 --

8
IV.Conclusion
The evidence shows that Bisbing was terminated for his insubordinate behavior, a
legitimate and non-discriminatory reason for discharge. Thus, the District Court’s grant
of summary judgment for Lehighton was not in error and the denial of the motion for
reconsideration and the grant of summary judgment will be affirmed.

-- 8 of 8 --