2002 D e c i sion s O p inion s of the U nit e d

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. e du/thir dc ir c uit_2002/626NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 01-4512

___________

EDWARD ELWELL

Appellant

v.

PP&L, INC., formerly

PENNSYLVANIA POWER AND LIGHT, INC.

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. Civil No. 99-cv-2716)

District Judge: The Honorable Franklin S. VanAntwerpen

___________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 13, 2002

Before: ALITO and FUENTES, Circuit Judges and OBERDORFER*, District Judge

(Filed: September 30, 2002)

* The Honorable Louis F. Oberdorfer, United States District Judge for the District of

Columbia, sitting by designation.

________________________-2- OPINION OF THE COURT

________________________

FUENTES, Circuit Judge

.

Plai n tiff Edward Elwell appeals the District Court’s grant of the motion for

reconsideration of its motion for summary judgment brought by his employer, Defendan t PP

& L, Inc., and the denial of his motion for reco nsideration of his motion for summary

judgment. Because we agree with the District Court that Plaintiff failed to raise a genuine

issue of material fact with respect to his age discrimination claims, we affirm.

I. Facts and Procedural Background

The fact ual allegations underlying this case are well known to the parties, and therefore,

they are not detailed here, except to the extent that they directly bear upon the analysis. Elwell

asserted age discrimination and retaliation claims against the Defendant pur suant to the Age

Discrimination and Employment Act, 29 U.S.C. § 621 et seq. (ADEA) and the Pennsylvania

Human Relations Act, Pa. Stat. Ann. tit. 43, § 955 (a). In his Complaint, Elwell alleged that,

b eginning in 1995, when his position of Area Operations Manager was eliminated, and

continuing until the filing

of his Complaint, the Defendant subjected him to an ongoing pattern

of discriminatory

decision-making by demoting him and subsequently failing to hire and/ or

promote him to positions for which he was qualified. Elwell alleged that, as a result, his salary

was reduced and was susceptible to further reduction. Additionally, Elwell asserted that he

suffered adverse e mployment actions in retaliation for filing a charge of discrimination with

the Equal Employment Opportu n ity Commission (EEOC). Defendant moved for summary-3-

judgment as to all counts of Elwell’s complaint.

Initially, the Di

strict Court denied Defendant’s motion for summary judgment.

Subsequently, Defendant filed a moti on for reconsideration of its motion for summary

judgment, which the District Court gr anted in part and denied in part. The court ruled that only

the last three positions for which Elwell applied could be considered. These positions were

the Power Delivery Regional Work Manager, Supervising Engineer, and the Service Order

Fulfillment (SOF) Team Leader positions. The court held that Elwell failed to establish a

prima facie claim as to the Power Delivery Regional Work Manage r position because the

candidate selected

for this position was but one year younger than Elwell. As to the

Supervising Engineer and SOF Team Leader positions, the court held that Elwell did not

present evidence which successfully rebutted the nondiscriminatory r e asons advanced by the

Defendant for the selection of other candidates for these position s. Because it held that Elwell

failed to establish that any acts of discrimination occurred within the 300 day time window

preceding his filing of a charge of discrimination with the EEO C, the court ruled that Elwell’s

claims arising out of employment decisions made prior to the 300 day period could not be

brought under a continuin g violations theory and were therefore time-barred. The court

rejected Elwell’s claim of retaliation based on his employer’s failure to hire h im for a Project

Manager position, ruling that Elwell presented a triable issue only as to whether he had

received a less favorable evaluation due to his filing an EEOC charge.

Thereafter, Elwell filed a motion for recons ideration, which the court denied in its

entirety. In doing so, the court reversed its earlier holding that Elwell’s claim of-4-

discrimination arising out of Defe ndant’s failure to hire him for the Audit Team Leader

position was untimely. The court held that Elwell’s claim pertaining to this position was timely

because a “m

ailbox rule” applied, and therefore the date that the charge was received by the

EEOC was not determinative. The court nevertheless dismissed Elwell’s claim on the basis

that Elwell fail

ed to show that he was qualified for the Audit Team Leader position and,

therefore, failed to establish a p rima facie case of age discrimination arising out the selection

of another candidate for the position. The court further held that, even if Elwell established

a p r ima facie case, no reasonable finder of fact could find that he was denied the position based

on age discrimination.

The court also revisited Elwe ll’s claim of age discrimination with respect to

Defendant’s decision not to hire him for the Power Delivery Re gional Work Manager position.

The court held that, even assuming that Elwell could make out a p rima facie case, i.e.

, even

though the candidate chosen for the job was merely one year younger than him, he did not

present evidence from which a reasonable trier of fact could conclude that ag e discrimination

motivated the hiring dec ision. The court declined to revisit its holding with respect to the

Supervising Engineer position. After revisiting its analysis of why Elwell failed to establish

a triable issue arising out of another candidate’s selection for the SOF Team Leader position,

the District Court reiterated its previous ruling dismissing this claim.

After a bench trial on Elw ell’s retaliation claim which survived summary judgment,

Judge Rueter entered judgment in favor of Defendant. Elwell does not challenge this judgment

on appeal. Elwell appeals the District Court’s rulings that he could not sustain his age-5-

discrimination cla ims on the merits with respect to three of the positions for which he applied

and was rejected, namely the Audit Team Leader, Supervising Engineer, and SOF Team Leader

positions.

II. Jurisdiction and Standard of Review

The District Court exercised jurisdiction over this matter under 28 U.S.C. § 1331 and

pendent jurisdiction over Appellant’ s state law claims pursuant to 28 U.S.C. § 1367. We have

appellate jurisdiction under 28 U.S.C. § 1291.

“[T]he standard of review for a denial of a motion for rec o nsideration varies with the

nature of the underlying judicial decision.” F ederal Kemper Ins. Co. v. Rauscher , 807 F.2d

345, 348 (3d Cir. 1986). Because this court is addressing the District Court’s rulings on

Defendant’s motion for summary judgment, this Court has plenary review. See id. at 349.

III. Discussion

Elwell asserts that the District Court erred in holding t hat he did not establish a p rima

facie case with respect to the Audit Team Leader position and in holding that, even assuming

that he did, he failed to rebut the nondiscriminatory reasons advanced by Defendant with regard

to its hiring decision for this position as well as the Supervising Engineer and SOF Team

Leader positions. Elwell asserts that the District Court usurped the role of the jury by

improperly making

credibility determinations regarding the age discrimination evidence

submitted by the p arties. In response, Defendant asserts that, because Appellant failed to

present evidence in support of his age discrimination claims, the ju dgment of the District

Court should not be disturbed and this appeal should be denied.-6-

The parties essentially agre e as to the controlling legal standards. In order to establish

a prima facie ADEA case, a plaintiff must show that “(1) h e is over 40, (2) he is qualified for

the position in question

, (3) he suffered an adverse employment decision, and (4) he was

replaced by a sufficiently younger person to create an inference of age discrimination.”

Semp ier v. Johnson & Higgins , 45 F.3d 724, 728 (3d Cir. 1995). If the plaintiff is able to

establish a prima facie case, a presumption of age discrimination arises, which the employer

mus t rebut by providing a legitimate non-discriminatory reason for the adverse employment

action. S ee id. “To defeat a summary judgment motion based on a defendant’s proffer of a

nondiscriminatory reason, a plaintiff who has made a prima facie showing of di s crimination

need only point to evidence establishing a reasonable inference that the employer’s proffered

explanation is unworthy of credence.” Id.

A. Audit Team Leader

The Dist rict Court held that, even assuming Elwell could establish a p rima facie case

o f age discrimination arising out of the selection of a younger candidate for the Au dit Team

Leader position, this claim nece ssarily failed because Elwell did not present evidence which

would lead a rea sonable jury to conclude that the reasons advanced by the Defendant were

pr etextual. Elwell asserts that, in arriving at its conclusion, the District Court improperly

weighed the evidence by reasoning that Defendant’s “subjective evidence” was more worthy

of credence than the “objective evidence” he introduced. Appellant’s Br. at 11.

In Reeve s v. Sanderson Plumbing Products, Inc

. , 530 U.S. 133 (2000), the Supreme

Court held that a juror could “infer the ultimat e fact of discrimination from the falsity of the-7-

employer’s explanation” absent the introduction of “additional, independent evidence of

discrimination.” Reeves , 503 U.S. at 147-49. The Court explained that:

[A] plaintiff’s prima facie case, co mbined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit the trier of fac t to conclude that the employer

unlawfully discriminated.

This is not to say that such a showing by the plaintiff will a lways

be adequate to sustain a jury’s finding of liability. Certainly there

will be instances where, although the plaintiff has established a

prima facie case and set forth s ufficient evidence to reject the

defend ant’s explanation, no rational factfinder could conclude

that the action was discri m inatory. For instance, an employer

would be entitled to judgment as a matter of l aw if the record

conclusively r evealed some other nondiscriminatory reason for

the employer’s decision, or if the plaintiff created only a weak

issue of fact as to whether the employer’s reason was untrue and

there was abundant and uncontroverted independent evid ence that

no discrimination had occurred.

Id. at 148 (emphasis in original). This is consistent with our earlier holding in F uentes v.

Perskie, 32 F.3d 759 (3d Cir. 1994), where we explained that:

because the factfinder may infer from the co m bination of the

plaintiff’s prima facie case and its own rejec tion of the

employer’s proffered non -discriminatory reasons that the

em ployer unlawfully discriminated against the plaintiff and was

merely trying to conceal its illegal act with the articulated

reasons, a plaintiff who has made out a prima facie case may

d efeat a motion for summary judgment by either (i) discreditin g

the proffered reasons, eit her circumstantially or directly, or (ii)

adducing eviden

ce, whether circumstantial or direct, that

discrimination

was more likely than not a motivating or

determinative ca use of the adverse employment action. Thus, if

the plaintiff has pointed to evidence s ufficiently to discredit the

defendant’ s proffered reasons, to survive summary judgment the

plaintiff need not also come forward with additional evidence of

discrimination beyond his or her prima facie case.-8-

Fuentes

, 32 F.3d at 764 (e mphasis in original) (citations omitted). Defendant came forward

with the deposition testimony of Martin Urban, who was one of three employees of the

Defendant who i

nterviewed Elwell for the Audit Team Leader position in February of 1997 and

was the person who made the decision to not hi re Elwell. Urban testified that he decided that

Elwe ll was not the best candidate for the Audit Team Leader position because a score of 3.0

was required for the position and he had interviewed him for a position entailing similar

responsibilities in a different area of the company in August of 1996, at which time Elwell

received a consensus score of 2.4 3 from the three interviewers. In order to show that this

reason was but a pretext for discrimination, Elwell came forward with a “Synchrony Feedback”

evaluation of Elwell from August of 1996, in which he rece ived a score of 4.2 for his

performance on his then current job. The District Court correctly reasoned that, because there

was no evidence (1) that either Elwell’s score of 2.43 in the earlier intervie w for the similar

position or the requirement of a score of 3.0 were incorrect; or (2) that the level of

proficiency required to score 4.2 on the Synchrony Feedback evaluation was sufficient to

qualify for the Audit Team Leader position; or (3) that Elwell’s qualifications for his then

current job implied he was sufficiently qualified for a higher level position, a reasonable jury

co uld neither discredit Defendant’s reasons as pretextual nor find that age discrimination was

more likely than not a determinative factor in Defendant’s decision n ot to promote Elwell.

The District Court properly rejected Elwell’s argument that it usurp ed the role of the

jury by weighing the Synchrony Evaluat ion against the consensus score. As the District Court

explained,-9- [c]redibility determinations are indeed the province of the trier of

fact. On a motion for summary judgment, the court must accept

as true all reasonable i

nference that favor the nonmoving party.

However, w e may only consider r easonable inferences; we may

not im properly consider those inferences that are unreasonable.

We have drawn all reasonable inferences in favor of Plaintiff.

It remains o ur function, however, to determine whether

there is sufficient evidence for a claim to reach the trier of fact.

App. at 60-61 ( citing 9A Charles Alan Wright & Arthur R. Miller, Fed eral Practice and

Procedure § 2528 (2d ed. 1995), at 294) (emphasis in original). Accordingly, we affirm the

District Court’s dismissal of Elwell’s claim for age discrimination arising out of the selection

of a younger candidate for the Audit Team Leader position.

B. Supervising Engineer

Similarly, Elwell’s claim of discrimination arising out of Defendant’s choice of another

candidate for the Supervising Engineer position, which Elwell applied for and was rejected

from without having the opportunity to interview, fails due to his failure to rebut the reasons

advanced by the Defendant for its hiring choice. Elwell asserted that Douglas Krall, the PP &

L employee with hiring authority with respect to this position, could not have known that he

lacked the skills the position required because he was never giv en the opportunity to present

his qualifications at an interview. Moreover, Elwell asserts that the job posting for which he

tailored the materials he submitted did not indicate that the position required “technical

knowledge of energy scheduling and reconciliation, the tariff st ructure within the Pennsylvania,

New Jersey and Maryland (PJM) power grid, factors that lead to power flow disruptions, and

coordination and drafting of contracts with alternative el ectric suppliers.” App. at 232, Krall-10-

Decl.

The District Court properly rejected this argument on the basis that Elwell fa iled to

introduce evidence that age discrimination more likely motivated the hiring choice and failed

to demonstrate “such weaknesses, implausibilities, inconsistences, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a re asonable

factfinder could rationally find them ‘unworthy of crede nce[.]’” F uentes

, 32 F.3d at 765

(em phasis in original) (citations omitted). Because Elwell did not show that the reasons

advanced for the hiring of a candidate possessing the skills sought were a pretext for age

discri mination, he failed to carry his burden under the M cDonnell Douglas framework and

dismissal of his claim regarding the Supervising Engineer position was appropriate.

C. SOF Team Leader Position

Finally, the Court addresses Elwell’s contention that the District Court erred in

dismissing his claim of age discrimination arising out of his nonselection for the SOF Team

Leader position. Assuming, without deciding, that nonselection for this project leadership role

amounted to an “adverse employment action,” Elwell’s claim fails as it boils down to his

assertion that the candidate selected pr oved to be a disappointing choice and that he could have

done a better job. Michael Sobeck, Defendant’s employee who made the hiring decision with

respect to this position, asserted that he did not choose Elwell for the job because his staff

recommended against his selection due to a lack of confidence in Elwell’s leadership and

management skills and because Elw ell had expressed doubts about the team’s ability to

complete the project. While Elwell asserted that he was the logical choice for the position,-11-

he did not present evi

dence from which a reasonable jury could find that he was discriminated

against because of his age. We observe that Elwell’s case is further weakened by the fact that

Sobeck wa s fifty years old at the time he made his hiring choice. S ee App. at 207; Dungee v.

Northeast Foods, Inc.

, 940 F. Supp. 682, 688 n. 3 (D. N.J. 1996) (citing cases that hold that

a pl aintiff’s ability to raise an inference of discrimination is hampered when the decision

maker is a member of the plaintiff’s protected class).

IV. Conclusion

Af ter carefully considering the arguments discussed above and all other arguments

advanced by the Appellant in support of his assertion that the District Court erred in dismissing

his claims on summary judgment, we affirm the District Court’s decision.

TO THE CLERK OF COURT:

Please file the foregoing opinion.

By the Court,

/s/ Julio M. Fuentes

Circuit Judge