No: 04-3351 NADINE MCCLAM-BROWN v. THE BOEING COMPANY Nadine McClam-Brown

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-3351
NADINE MCCLAM-BROWN; RONALD H. CLARKE; DARLA JOHNSON;
LAWRENCE KING; LARRY MCINTOSH; CONSTANCE E. PERRY-ROSE;
SHOMIDE TOKUNBO, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS
SIMILARLY SITUATED
v.
THE BOEING COMPANY
Nadine McClam-Brown; Ronald H. Clarke;
Darla Johnson; Larry McIntosh;
Constance Perry-Rose; Shomide Tokunbo,
Appellants
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 98-CV-03994)
District Judge: Hon. Marvin Katz
Submitted Under Third Circuit LAR 34.1(a)
July 14, 2005
Before: SLOVITER, McKEE and WEIS
Circuit Judges
(Opinion filed: July 29, 2005 )
OPINION
McKEE, Circuit Judge.
Six Boeing employees appeal the District Court’s order granting Boeing summary

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The district court’s order adopted, almost verbatim, the findings of fact proposed1
by Boeing. Relying on Bright v. Westmoreland County, 380 F.3d 729, 732 (3d Cir.
2004), appellants maintain that by so-doing the district court erred. We do not agree.
Here, unlike in Bright, we are convinced that the district court conducted an
independent review of the case. The findings of fact are replete with citations to the
record, and the court heard argument from the parties before issuing its opinion.
Moreover, the district court had before it appellants’ response to Boeing’s “Statement of
Undisputed Facts.” See Ladsford-Coaldale Joint Water Auth. v. Tonolli Corp., 4 F.3d
1209, 1215-16 (3d Cir. 1993) (“While we cannot dispute that a district court's verbatim
adoption of many of a party's proposed findings does not always represent a desirable
practice, we are satisfied that the district court's findings here satisfy Rule 52(a) and
should be upheld unless they are not supported by the evidence in the record. We note
that we found no indication in the record that the district court was unfamiliar with the
testimony and exhibits or that it was using the proposed findings as a crutch; if we had,
we might view the matter differently. Rather, the record suggests to us that the district
court's findings reflected its informed and considered views.”).
For example, appellants aver that the evidence demonstrates that Ken Dabundo2
was chosen over McClam-Brown for a supervisory position because the group’s manager
knew Dabundo better than McClam-Brown.
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judgment in their action under Title VII alleging racial discrimination in their
employment. For the reasons that follow we will affirm the District Court’s decision.1
Because we write primarily for the parties, it is not necessary to recite the facts or
procedural history of this case except insofar as may be helpful to our brief discussion.
Appellants first assert that the District Court “clearly usurped the province of the
jury by making findings of fact and credibility determinations regarding each of the
plaintiffs.” They cite fourteen specific findings of fact to support their contention.
However, many of the factual disputes which they claim exist on this record are not at all
material to their claims, and in some instances, appellants have failed to support their2

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For example, appellants fail to cite to evidence in the record, which they claim3
contradicts the District Court’s finding that, as part of the 1995 reduction in force, two
Caucasian males were laid off and all retention 3 level employees were treated the same.
For example, appellants contend that the evidence contradicts the District Court’s4
finding that McClam-Brown’s lower than average wage increase in 1994 was due solely
to poor teamwork and interpersonal problems in her group. Not only is this not what the
District Court found, but also, the supposed contradictory evidence – that the complaints
that formed the basis for her less-than-average pay increase were false – is not sufficient
to create an inference that her pay raise was instead based on racial discrimination.
There has been much discussion among the circuit courts of appeals as to whether5
Desert Palace impacted the McDonnell Douglas v. Green, 411 U.S. 792 (1973),
framework. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005)
(concluding that Desert Palace has no effect on pretext cases under McDonnell Douglas);
Griffith v. City of Des Moines, 387 F.3d 733, 736 (8th Cir. 2004) (concluding that Desert
Palace has no impact on prior Eighth Circuit summary judgment decisions).
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position with citations to the record. In addition, appellants ask us to draw inferences in3
their favor that are really nothing more than speculation. Therefore, the fourteen4
findings of fact are not indicative of genuine disputes of material fact that appellants had
to demonstrate to defeat Boeing’s motion for for summary judgment.
Appellants also contend that the District Court failed to apply the proper legal
standard for summary judgment in Title VII cases. They claim the court should have
applied the test set forth in Costa v. Desert Palace, 539 U.S. 90 (2003) in determining
whether race was a motivating factor in each of the plaintiffs’ adverse employment
actions. Boeing argues that, given the absence of direct evidence of discrimination, the5
District Court correctly applied the familiar burden shifting analysis outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the alternative, Boeing

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maintains that appellants can not succeed even under the Desert Palace framework.
Briefly summarized, the McDonnell Douglas analysis proceeds in three stages.
First, the plaintiff must establish a prima facie case of discrimination. Id. at 802. If the
plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant "to
articulate some legitimate, nondiscriminatory reason for the employee's rejection." Id. If
the defendant meets that burden, the plaintiff must then prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination.
Jones v. School Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir.1999), citing Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).
In Desert Palace, the Supreme Court held that, in order to obtain a mixed-motive
jury instruction, a Title VII plaintiff need not produce direct evidence of discrimination.
Instead, a plaintiff may establish discriminatory animus through circumstantial evidence.
539 U.S. at 101-02.
Here, while the District Court did not engage in a detailed legal analysis of each of
plaintiffs’ claims, it is clear from the court’s opinion that it granted summary judgment
based upon its conclusion that plaintiffs had not satisfied the third prong of McDonnell
Douglas. See e.g., McClam-Brown v. Boeing, 2004 WL 1646731, at *7 (E.D.Pa. Jul. 23,
2004) (“Plaintiff has not produced any evidence which either casts sufficient doubt on the
defendant’s legitimate non-discriminatory reasons for taking any adverse employment
actions against her or which would allow a fact-finder to infer that discrimination was

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more likely than not a determining factor.”). We need not resolve appellants’ contention
that the District Court should have conducted an inquiry under Desert Palace, rather than
McDonnell Douglas, however, because appellants failed to produce sufficient direct or
circumstantial evidence to cast doubt on Boeing’s stated reasons for the challenged
employment actions.
Accordingly, because we conclude that the District Court did not erroneously make
findings of fact and credibility determinations, nor did it apply an improper legal standard
in deciding Boeing’s motion for summary judgment, we will affirm the court’s summary
judgment orders.

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