Nicholas Malfitano Mar. 10, 2016, 3:04pm


PHILADELPHIA – A federal appeals court recently determined a female employee was not discriminated against based on her gender when she was not selected for the position of Director of Railroad Service Operations at the Southeastern Pennsylvania Transportation Authority (SEPTA).

U.S. Court of Appeals for the Third Circuit judges Thomas L. Ambro, Kent A. Jordan and Anthony J. Scirica determined appellant Debra Gardner-Lozada was in fact less qualified than the candidate ultimately chosen for the role. Jordan authored the Court’s opinion in this case.

Gardner-Lozada has been in SEPTA’s employ since 1998, hired as a financial analyst after seven years spent as a contractor. In 1999, Gardner-Lozada was promoted to the role of management analyst, and, in 2007, her title changed to assistant director.

On Feb. 14, 2012, SEPTA began the process of hiring a new Director of Railroad Service Operations. Gardner-Lozada applied for the role, and was one of 15 applicants. She was placed in “Group B,” along with other candidates who met the minimum qualifications for the position, but who were not qualified under the rules of the Northeast Operating Rules Advisory Committee (NORAC) – which are “a set of operating rules for railroads in North America intended to enhance railroad safety.”

According to court records, candidates in Group B would only be extended an interview if no candidate in Group A – those who earned NORAC qualifications –received the position. Seven applicants in Group A were interviewed, and one of them, Richard Mahon, was offered the director job.

Gardner-Lozada subsequently filed suit against SEPTA, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA), for not being offered an interview in the hiring process.

After a trial, the jury found for SEPTA on the retaliation claim, but found for Gardner-Lozada on her sex discrimination claim, awarding her $1 in damages. The District Court granted SEPTA’s renewed motion for judgment as a matter of law on July 24.

Gardner-Lozada timely appealed to the Third Circuit.

“In the District Court’s analysis, the dispositive non-discriminatory reason that SEPTA put forward for why it did not promote Gardner-Lozada to the position of Director of Railroad Service Operations is that the candidate it did hire, Mahon, was substantially more qualified,” Jordan said.

“We agree that there was insufficient evidence for a jury to reasonably conclude that Mahon’s superior qualifications were mere pretext for SEPTA’s decision to hire him instead of Gardner-Lozada,” Jordan added.

The Third Circuit’s analysis found Mahon “eminently qualified” for the Director of Railroad Service Operations position, as he possessed a locomotive engineer’s license, is able to operate trains, had experience in railroad operations and had been NORAC-certified for over 20 years, in addition to other “significant” operational attributes.

“Gardner-Lozada had none of those qualifications, and even though she was prepared to at least say at trial that Mahon was ‘just as qualified as [she] was,’ the fact is that she was significantly less qualified,” Jordan said. “Her educational background was in finance and accounting, and her responsibilities at SEPTA were entirely financial and administrative. She managed railroad revenue and third-party ticket vending, along with associated customer service.”

Jordan explained the Third Circuit believed Gardner-Lozada was a fine employee for SEPTA based on her performance evaluations, but Mahon was “much more qualified” for the specific position in question.

“The role of Director of Railroad Service Operations is a thoroughly operations-centric job, for which Mahon’s decades of operations experience made him far better suited,” Jordan said.

“It was therefore not reasonable for the jury to conclude that Gardner-Lozada’s gender was a determinative factor in SEPTA’s decision not to promote her, and judgment as a matter of law for SEPTA was proper,” Jordan concluded.

The plaintiff is represented by Olugbenga O. Abiona and Albert J. Michell, both in Philadelphia.

The defendant is represented by Daniel J. McGravey, Gaetan Alfano and Leslie A. Mariotti of Pietragallo Gordon Alfano Bosick & Raspanti, all also in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-2799

U.S. District Court for the Eastern District of Pennsylvania case 2:13-cv-02755

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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