Ricky Thompson-El v. Chris Basher ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1623
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RICKY THOMPSON-EL,
Appellant
v.
CHRIS BASHER; ROBIN ROBERTS;
TRISH MOSES; GREATER DOVER BOYS AND GIRLS CLUB
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On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil Action No. 1:18-cv-01426)
District Judge: Honorable Richard G. Andrews
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 3, 2023
Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed: August 3, 2023)
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OPINION *
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PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Ricky Thompson-El, proceeding pro se, appeals from the District Court’s sua
sponte dismissal of three defendants and grant of summary judgment for the remaining
defendant. For the reasons that follow, we will affirm.
Thompson-El, who is over 60 years old, was fired from his job as a lifeguard at the
Greater Dover Boys and Girls Club in 2017. 1 He filed suit against the Club and three
Club employees, alleging discrimination under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 et seq. Dkt. Nos. 1 & 8. After screening the complaint
pursuant to 28 U.S.C. § 1915(e)(2)(B), the District Court sua sponte dismissed the three
employees based on the lack of individual liability under the ADEA and otherwise
dismissed the complaint without prejudice. Dkt. No. 6. Thompson-El then filed an
amended complaint. Dkt. No. 8. After the Court ordered Thompson-El to respond to the
Club’s discovery requests and he failed to do so, the Club filed a motion for summary
judgment, which the District Court granted. Dkt. Nos. 81 & 90. Thompson-El filed this
timely appeal. Dkt. No. 92.
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over
both the District Court’s sua sponte dismissal and its grant of summary judgment. 2 See
1
Thompson-El filed a charge of discrimination with the Delaware Department of Labor
after he was terminated and subsequently received a right-to-sue letter. Dkt. Nos.
1-1 & 12.
2
To the extent Thompson-El attempts to appeal from an order entered after he filed his
notice of appeal, C.A. Dkt. No. 9 at 2, we cannot review that order because he has not
filed an amended notice of appeal.
2
Dooley v. Wetzel, 957 F.3d 366, 373 (3d Cir. 2020); Blunt v. Lower Merion Sch. Dist.,
767 F.3d 247, 265 (3d Cir. 2014).
On appeal, Thompson-El argues that the District Court erred in refusing to allow
his case to proceed to a jury trial. C.A. Dkt. No. 9 at 2-4. However, the District Court
had the authority to dismiss the matter at any time under certain circumstances. 3 See 28
U.S.C. § 1915(e)(2)(B). The District Court also had the authority to grant summary
judgment to the Club upon its motion, pursuant to Federal Rule of Civil Procedure 56.
See Fed. R. Civ. P. 56. Finally, the Seventh Amendment protects the right to a jury in
civil cases only where there are factual issues to be decided. See In re Peterson, 253 U.S.
300, 310 (1920). The District Court’s legal determination that a claim cannot succeed
does not usurp the fact-finding province of the jury and does not violate the Seventh
Amendment. See Christensen v. Ward, 916 F.2d 1462, 1466 (10th Cir. 1990).
Thompson-El also asserts on appeal that the District Court erred in granting
summary judgment in favor of the Club. C.A. Dkt. No. 9 at 3. However, we agree with
the District Court that Thompson-El failed to establish age discrimination under the
ADEA, because he presented no evidence that he was qualified to be a lifeguard or that
his replacement was sufficiently younger than he. See Hill, 455 F.3d at 247. Even if he
3
To the extent Thompson-El argues otherwise, the District Court correctly dismissed the
individual defendants pursuant to § 1915(e)(2)(B)(ii), as only “employers” may be held
liable under the ADEA, not individuals. See Hill v. Borough of Kutztown, 455 F.3d 225,
246 n.29 (3d Cir. 2006).
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had, as the District Court explained, Thompson-El set forth no facts indicating that the
Club’s legitimate, nondiscriminatory reason for his termination—his poor performance
history—was pretext for age discrimination. See Martinez v. UPMC Susquehanna, 986
F.3d 261, 266 (3d Cir. 2021) (applying the McDonnell Douglas burden-shifting
framework to an age discrimination claim). On appeal, Thompson-El asserts that Club
employees lied about his performance, C.A. Dkt. No. 9 at 3 & 10, but he has not offered
any evidence from which a reasonable factfinder could rationally find the Club’s reason
for his firing “unworthy of credence.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994).
Accordingly, we will affirm the judgment of the District Court.
4