Opinion
22-2876
12-12-2023
ALCUIN MITCHELL, Appellant v. UNIVERSITY OF PITTSBURGH
NOT PRECEDENTIAL
Submitted Under Third Circuit L.A.R. 34.1(a) September 19, 2023
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-19-cv-00525) District Judge: Honorable W. Scott Hardy
Before: RESTREPO, McKEE, and RENDELL, Circuit Judges
OPINION [*]
McKEE, CIRCUIT JUDGE
Alcuin Mitchell appeals the District Court's grant of summary judgment in favor of his former employer, the University of Pittsburgh, on his claims that his demotion from sergeant to patrolman violated the Age Discrimination in Employment Act and the Pennsylvania Human Relations Act. For the reasons that follow, we will affirm the District Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
I.
The Amended Complaint contains two Counts: (I) age discrimination under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; and (II) age discrimination under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq.
The District Court granted the University's Motion for Summary Judgment, denied Mitchell's Motion to Supplement the Record, and entered a Final Judgment Order. This appeal followed.
"We exercise plenary review over the grant or denial of summary judgment and apply the same standard the district court should have applied." Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." When reviewing an order granting summary judgment, we view the evidence in the light most favorable to the nonmoving party.
Minarsky v. Susquehanna Cnty., 895 F.3d 303, 309 (3d Cir. 2018).
Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015).
II.
Under the ADEA, it is unlawful for an employer to "discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." As the provisions of the PHRA and ADEA are "analogous," we apply the same analysis. To prove discrimination under the ADEA, "a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision."
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 n.5 (3d Cir. 1998).
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009).
A plaintiff can establish a claim of discrimination under the ADEA or PHRA by presenting either direct or circumstantial evidence. "[E]vidence is not direct where the trier of fact must infer the discrimination on the basis of age from an employer's remarks." When there is no direct evidence of discrimination, a plaintiff can rely on circumstantial evidence to make out a claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 167 (3d Cir. 2001).
Torre v. Casio, Inc., 42 F.3d 825, 829 (3d Cir. 1994).
Willis, 808 F.3d at 644.
Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case of age discrimination by presenting evidence that: (1) he is forty years of age or older; (2) he suffered an adverse employment action; (3) he was qualified for the position; and (4) the action occurred under circumstances that support an inference of discrimination such as replacement by a younger employee. After the plaintiff establishes a prima facie case of discrimination, the burden shifts to the employer to offer a legitimate nondiscriminatory reason for its action. If the employer offers a nondiscriminatory justification for the adverse employment action, then the burden shifts back to the plaintiff to show that this reason was pretext for discrimination.
Id. at 644-45.
Id. at 644.
Id.
Mitchell contends that he presented direct evidence of discrimination, and the District Court erroneously applied the McDonnell Douglas framework. Alternatively, he argues that the District Court erred by holding that his claims could not succeed under the burden-shifting framework.
"Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption." The only "direct evidence" Mitchell offered to the District Court was that Chief James Loftus handed him a copy of the collective bargaining agreement when he was demoted and told him that he could "take advantage of retirement." Mitchell argues that this "evidence leads not only to a 'ready logical inference' of bias, but also to a 'rational presumption' that Loftus acted upon this age-related bias when he demoted Sergeant Mitchell." The District Court rightly found that Loftus's suggestion that Mitchell consider retirement was not direct evidence of age discrimination.
Torre, 42 F.3d at 829 (quoting Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)).
App. 13 (internal quotation marks omitted); Opening Br. 27 n.7.
Opening Br. 27 n.7.
The District Court concluded that there was a legitimate reason for Loftus's remark: the retirement provision of the collective bargaining agreement that would cover Mitchell after his demotion had changed since he had last been covered by it. Informing Mitchell of his retirement options was not direct evidence of discrimination because this single instance of communicating relevant information to an employee did not show without inference or presumption that age discrimination was the but-for cause of Mitchell's demotion from sergeant to patrolman. Accordingly, the District Court appropriately applied the McDonnell Douglas burden-shifting framework to assess the probative value of this evidence.
Under the McDonnell Douglas framework, the District Court correctly found that Mitchell had not established the fourth element of a prima facie case of discrimination- that a younger employee replaced him thus creating an inference of discrimination. Mitchell argues that Loftus replaced him with 30-year-old Officer Brooke Riley and that she was promoted to sergeant after he was demoted. However, the University responds, without contradiction by Mitchell, that "Sergeant" was merely a broad classification within the Department. The University notes that Mitchell was a "senior Sergeant and Shift Supervisor of the Day Shift" when demoted, and that his performance reviews were governed by that assignment rather than his general classification of sergeant. Therefore, Mitchell's evidence did not establish that Riley replaced him or otherwise subsumed his duties. The only evidence Mitchell offered to that effect was his own declaration that he was "replaced by patrol officer Brooke Riley" after he was demoted.However, Mitchell did not depose Riley. Nor did Mitchell question Loftus about Riley's role during Loftus's deposition.
Answering Br. 17.
App. 317. On appeal, Mitchell argues that an organizational chart provides additional evidence. However, the District Court denied Mitchell's Motion to Supplement the Record, which included this organizational chart. Because Mitchell does not challenge the denial of that motion on appeal, we cannot consider the organizational chart. Moreover, even if we could consider it, we agree with the District Court's conclusion that the organizational chart does not establish that Riley replaced Mitchell or subsumed his duties.
Mitchell's own declaration only establishes his "understanding from speaking with Officer Riley." The District Court noted that Mitchell's declaration, was not based on his personal knowledge as required by Rule 56(c)(4). Rather it was based upon Riley's statements, and is therefore inadmissible hearsay. Moreover, the declaration does not provide relevant details such as the date of Riley's promotion, her duties, or her subsequent assignment within the Department.
App. 317.
See Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge [and] set out facts that would be admissible in evidence ....").
See Fed.R.Evid. 801.
The District Court explained that Mitchell's ability to make out his prima facie case was severely limited by his choice during discovery not to depose Riley or question Loftus about her position or duties at the time of her promotion. Because Mitchell presented no evidence that Riley directly replaced him or subsumed his duties, the District Court correctly found that Mitchell could not satisfy the fourth element of the prima facie case.
Because Mitchell did not establish his prima facie case, we need not address whether Mitchell also failed to establish pretext. We note, however, that the District Court carefully and thoroughly explained why Mitchell did not meet his burden of showing pretext.
III.
For the foregoing reasons, we will affirm the District Court's order granting the University of Pittsburgh's motion for summary judgment.
[*] This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.