Angelina Tillman v. Redevelopment Auth Phila , 598 F. App'x 83 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4424
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ANGELINA TILLMAN,
Appellant
v.
REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-01505)
District Judge: Honorable Robert F. Kelly
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Submitted Under Third Circuit LAR 34.1(a)
January 15, 2015
Before: HARDIMAN, SCIRICA and BARRY, Circuit Judges.
(Filed: January 23, 2015)
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OPINION*
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HARDIMAN, Circuit Judge.
Angelina Tillman appeals the District Court’s summary judgment denying her
claim of unlawful age discrimination. We will affirm.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
I
We review the facts in the light most favorable to Tillman, Hersh v. Allen Prods.
Co., 789 F.2d 230, 232 (3d Cir. 1986), and we will affirm a summary judgment only if a
rational juror could not find for her, Schoonejongen v. Curtiss-Wright Corp., 143 F.3d
120, 129 (3d Cir. 1998).
A
In July 2007, Tillman, who was then 57 years old, was hired by the Philadelphia
Redevelopment Authority as a real estate specialist. Tillman and the Authority’s other
non-management employees were represented by Local 1971 of the American Federation
of State, County and Municipal Employees and relations between the Authority and the
Union were governed by a collective bargaining agreement. The CBA stated that, in the
event of layoffs, junior employees would generally be terminated first. This rule did not
apply, however, to the Union’s president, a set number of stewards, and three union
officers, who were granted “superseniority” status. The CBA also specified that “the
EMPLOYER shall have the right to rely on the last list of appointments of UNION
officials submitted by the UNION.” App. 297.
In early 2010, Tillman was appointed to the Union’s executive board. The Union
notified the Authority of this fact in February 2010 but did not provide a formal list of its
officials until June 20, 2011. Shortly after, the Authority informed the Union that it would
be laying off Tillman and several other employees.
2
In response, the Union president told the Authority’s deputy executive director of
operations, David Thomas, that Tillman could not be fired because she was an executive
board member with superseniority. Thomas countered that executive board members were
not “officers” with superseniority and that, in any event, Tillman was not entitled to
superseniority because the Union had failed to provide an updated list of its officers.
Tillman, who was 61 years old at this point, was subsequently let go, while the
Authority’s other real estate specialist, Irma Gonzalez-Bowie, was retained. Gonzalez-
Bowie was 50 years old and had worked at the Authority for 29 years, compared to
Tillman’s four years.1 Gonzalez-Bowie did not have superseniority status.
B
In March 2012, Tillman sued the Authority, claiming unlawful age discrimination,
in violation of 29 U.S.C. § 623(a)(1), and unlawful employment practice, in violation of
43 Pa. Cons. Stat. § 955(a). The Authority moved for summary judgment and the District
Court granted the motion, finding that Tillman had failed to establish a prima facie case
of age discrimination. Tillman now appeals.2
II
1
Tillman returned to the Authority in December 2012. She now works in its
Residential Services Department as a property management coordinator.
2
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s
summary judgment. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005).
3
Under the McDonnell-Douglas burden-shifting analysis, a plaintiff must first
establish a prima facie case of discrimination. McDonnell-Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). To do so, she must show that she (1) belongs to a protected class;
(2) was qualified for the position held; (3) suffered adverse employment action; and (4)
was replaced by someone “sufficiently younger,” raising the inference of age
discrimination. Anderson v. Consol. Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002).
Tillman argues that there is sufficient evidence to create a genuine issue of fact
regarding whether the Authority’s retention of Gonzalez-Bowie raised the inference of
age discrimination. See Fed. R. Civ. P. 56(c). She asserts that her executive board position
gave her superseniority and that Gonzalez-Bowie was “significantly younger.” Tillman
Br. 11–12 (emphasis added). In Tillman’s view, the Authority’s failure to recognize her
superseniority status “was the result of Thomas’s animosity toward older individuals.” Id.
at 12. Tillman seems to base this claim on David Thomas’s inquiry about her age during
an exit interview, id. at 13, and allegations that Thomas said that another employee was
“too old, he’s been here too long, his knowledge and stuff is, you know, out of date,” id.
at 7 (quoting App. 384), 14–15. Tillman argues that, based on this evidence, a reasonable
juror could infer age discrimination. She faults the District Court, moreover, for failing to
draw justifiable inferences in her favor.
We are unpersuaded. Tillman’s claim that she suffered age discrimination is
unsubstantiated. The record shows that Thomas asked Tillman’s age after she had already
4
been laid off in order to determine when she could begin to receive Medicare benefits.
Tillman leans heavily on Potence v. Hazleton Area School District, where we declined to
overturn a jury’s verdict that an employer’s explicit instruction not to hire any more “old
plumbers,” among other things, constituted age discrimination. 357 F.3d 366, 369 (3d Cir.
2004). Here, however, we have merely a passing comment that another employee—in
another context—was “too old” for a promotion. We also note that, at the time Tillman
was let go, Gonzalez-Bowie was 50 years old and had worked at the Authority 25 years
longer than Tillman.
Finally, Tillman argues that the Authority’s refusal to recognize her superseniority
is a factual matter to be resolved by the jury. But even if a jury found that she had
superseniority, Tillman has provided nothing more than speculation that the Authority’s
failure to recognize that status was linked to ageist animus. And mere speculation does
not suffice.
III
The record shows that Tillman failed to establish a prima facie case of age
discrimination.3 Accordingly, the District Court’s summary judgment will be affirmed.
3
Because we agree with the District Court that Tillman has failed to establish a
prima facie case of age discrimination, we need not say more. Nevertheless, we have
reviewed the District Court’s alternative holding that Tillman could not establish pretext
and find no error there either.
5