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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-4230

___________

JOSEPH T. LYNN,

Appellant

v.

SECRETARY, DEPARTMENT OF DEFENSE, DEFENSE LOGISTICS AGENCY; 

LT. COL. YVONNE MACNAMARA, U.S. ARMY; JOHN HEUBERGER, 

CIVILIAN CHIEF D.L.A. A76, CONTINUING GOVERNMENT AUTHORITY; 

PENNY GRAFF, D.L.A.; DEFENSE LOGISTICS AGENCY, (D.L.A.); 

CONTINUING GOVERNMENT AUTHORITY; U.S. ARMY; 

U.S. GOVERNMENT; JOHN HUBER, D.L.A.

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 09-cv-00629)

District Judge: Honorable James M. Munley

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

June 8, 2011

Before: BARRY, JORDAN and GARTH, Circuit Judges

(Opinion filed: June 10, 2011 )

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OPINION

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PER CURIAM
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Appellant Joseph Lynn, proceeding pro se, appeals from the judgment entered in 

the United States District Court for the Middle District of Pennsylvania in favor of 

Appellees. For the reasons that follow, we will affirm.

On April 6, 2009, Lynn filed an employment discrimination lawsuit against the 

Secretary of the United States Department of Defense, and various employees of the 

Defense Logistics Agency (“DLA”) and United States Army. He alleged that he was 

wrongfully discharged from his position as a Distribution Process Worker based on his 

age and his gender, and that many of the charges which led to his termination were “false 

and inaccurate.” Lynn began working at Defense Distribution in Tobyhanna, 

Pennsylvania on July 11, 2005. He had previously worked for the U.S. government in

various other capacities. He alleged that he had always received “„good‟ and „very good‟ 

evaluations from his supervisors” and commendations for his military service. On July 

27, 2005, less than a month after his employment commenced, Lynn was terminated 

based on allegations that he was tardy on more than one occasion, that he violated various 

safety regulations, and that he damaged government property.

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 At that time, he was 58 

years old. He claimed that he was “singled out and targeted for firing” and that “[n]o 

younger people were terminated for similar allegations.” 

 

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The specific allegations are set forth in detail in both the Magistrate Judge‟s 

Report & Recommendation at pages 7-9, and in the District Court‟s Opinion at 

pages 3-6. Among other things, Lynn was reported for repeatedly operating a 

forklift with his seatbelt unfastened, striking, knocking down, and dropping items 

from the forklift while driving, and maneuvering the forklift with the forks in an 

elevated position rather than close to the ground. 
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Appellees moved for partial judgment on the pleadings, arguing that the only 

proper defendant in an employment discrimination lawsuit against the United States 

government is the head of the agency, sued solely in his official capacity, and that Lynn‟s 

claim for punitive damages should be dismissed as punitive damages cannot be sought 

against the federal government or an agency. Over Lynn‟s objections, the District Court 

agreed, dismissing all defendants save the Secretary of Defense, as the head of the DLA,

and dismissing Lynn‟s claim for punitive damages. See Brown v. General Servs. 

Admin., 425 U.S. 820, 835 (1976) (holding that Title VII of the Civil Rights Act of 1964 

provides the exclusive remedy for claims of employment discrimination by federal 

agencies); 42 U.S.C. § 2000e-16(c) (stating that the only proper defendant in a Title VII 

action is the head of the department, agency or unit in which the allegedly discriminatory 

acts occurred); 42 U.S.C. § 1981a(b)(1) (barring complaining party in intentional 

employment discrimination action from seeking punitive damages against government, 

government agency, or political subdivision). 

The remaining Appellee, Secretary Gates, then moved for summary judgment. In 

support of his motion, he submitted a statement of material facts detailing the infractions 

committee by Lynn, the recommendations made regarding his conduct, and the actions 

ultimately taken. The statement was supported by the declarations of John Huber, who 

was then the Lead Quality Assurance Evaluator at the Defense Distribution Center;

Penny J. Graff, then the Acting Site Manager; John J. Heuberger, then the Deputy 

Commander; and Karen Y. Doyle, Human Relations Specialist. Lynn filed a brief in 
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opposition, claiming that the information contained in the affidavits was “false and 

hearsay,” that it had been discredited during the Pennsylvania unemployment 

compensation hearings, and that the truth would come out at trial. He failed to support 

the brief with a response to the statement of facts or any sworn statement of his own. 

After Appellee filed a reply brief, pointing out the deficiencies in Lynn‟s opposition, 

Lynn filed a supplemental opposition brief, in which he primarily averred that most of the 

allegations against him were false. With respect to those he admitted were true, Lynn 

attempted to offer an explanation for his misconduct. Finally, he concluded that the only 

reason he could have been terminated was due to his “gray or silver hair.”

Based on these filings, the Magistrate Judge recommended that Appellee‟s motion 

for summary judgment be granted. As the Magistrate Judge explained, Lynn failed to 

adduce any direct evidence of age or gender discrimination. See Torre v. Casio, Inc., 42 

F.3d 825, 829 (3d Cir. 1994). The Magistrate Judge then considered whether Lynn had 

advanced any evidence to prove under the McDonnell Douglas burden-shifting 

framework that he had been discriminated against. See McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 802-03 (1973). Assuming, as Appellee had, that Lynn had 

established a prima facie case of discrimination, and concluding that Appellee had set 

forth legitimate non-discriminatory reasons for Lynn‟s termination, the Magistrate Judge 

ultimately found that Lynn had failed to offer any evidence to suggest that there were 

genuine issues of material fact in dispute as to whether the proffered reasons were 

pretextual. Because Lynn failed to sustain his burden, the Magistrate Judge 
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recommended that Appellee‟s motion for summary judgment be granted. In his 

objections, Lynn again called into question the veracity of the information provided by 

Appellee, and averred that at the time of trial, he would be able to prove that the reasons 

given by Appellee were pretextual. Over Lynn‟s objections, the District Court adopted

the Magistrate Judge‟s Report & Recommendation and entered summary judgment in 

favor of Appellee. Lynn appeals.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 

plenary review over the District Court‟s decision to grant a motion for judgment on the 

pleadings. See Ehrheart v. Verizon Wireless, 609 F.3d 590, 593 n.2 (3d Cir. 2010). We 

also review de novo the District Court‟s entry of summary judgment, viewing the 

underlying facts and all reasonable inferences therefrom in the light most favorable to 

Appellant, the non-moving party. See Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 

2010). Summary judgment is appropriate only if “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. 

P. 56(a). A party asserting that there is a genuine dispute as to a material fact must 

support that assertion with specific citations to the record. See Fed. R. Civ. P. 56(c). 

On appeal, Lynn continues to dispute the veracity of the facts presented by 

Appellee, but still does not present any evidence, other than his own assertions, to 

support the idea that he was fired for a discriminatory reason. As we have explained, 

“[t]o establish such circumstantial proof, the plaintiff first must present evidence that 

each of the defendant‟s reasons is pretextual, viz, each reason was „a post hoc fabrication 
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or otherwise did not actually motivate the employment action.‟” Ryder v. Westinghouse 

Elec. Corp., 128 F.3d 128, 136 (3d Cir. 1997). Whatever Lynn‟s opinion of the reasons 

given for his termination may be, the record is devoid of any evidence to suggest that 

they were not the true reasons for his dismissal. We recognize that Lynn is proceeding 

pro se. While we have held that “[t]he allegations of a pro se litigant are generally held 

to a „less stringent standard‟ than formal pleadings prepared by a lawyer,” United States 

v. Albinson, 356 F.3d 278, 284 n.9 (3d Cir. 2004), pro se litigants are nonetheless 

required to comply with the procedures outlined in Rule 56 of the Federal Rules of Civil 

Procedure. See Zilich v. Lucht, 981 F.2d 694, 696 (3d Cir. 1992). As explained in detail 

by the District Court, by failing to produce any affirmative evidence to support his 

allegations of discrimination, Lynn has not done so. See Fuentes v. Perskie, 32 F.3d 759, 

765 (3d Cir. 1994). Based on the foregoing, we will affirm the judgment of the District 

Court.2

 

2 We note that Lynn mentions in his appeal brief that he was denied union 

representation at the time of his termination. We agree with Appellees that this 

claim would properly be brought against the Union, not against the Secretary of 

Defense.