NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-1627

_____________

CLIVE BARON,

 Appellant

v.

ABBOTT LABORATORIES 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-14-cv-4706)

District Judge: Hon. Jan E. DuBois

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Submitted Under Third Circuit L.A.R. 34.1(a)

November 9, 2016

Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.

(Filed November 29, 2016)

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OPINION

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JORDAN, Circuit Judge.

Appellant Clive Baron asks us to reverse an order of the United States District 

Court for the Eastern District of Pennsylvania granting Abbott Laboratories’ motion for 

 

 This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.
2

summary judgment. The District Court held that Baron had failed to establish a prima 

facie case of discrimination under the Age Discrimination in Employment Act 

(“ADEA”), the Pennsylvania Human Relations Act (“PHRA”), and the Florida Civil 

Rights Act of 1992 (“FCRA”). We will affirm.

I. Background1

From 2007 to 2013, Clive Baron worked for STARLIMS, a company that provides 

a web-based platform to manage various types of laboratory information. At first, Baron 

served as STARLIMS’s Chief Business Development Officer. Then, in 2010, 

STARLIMS was acquired by Abbott Laboratories, and Baron was promoted to the 

position of General Manager of the Europe/Africa region.

2

 

In 2012, he was subsequently promoted to the position of Manager of Global 

Commercial Operations, which effectively made him General Manager of STARLIMS.3 

His job was to oversee the management and operation of each of STARLIMS’s four 

geographic regions. That promotion coincided with the promotion of another Abbott 

employee, Scott Goss. Goss was promoted from General Manager of North America (for 

STARLIMS) to General Manager of OneLab, another business within Abbott. After their 

respective advancements, Baron and Goss reported to the same boss and were at the same 

 

1 When evaluating summary judgment, we view the facts in the light most 

favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 

(1986); Fakete v. Aetna, Inc., 308 F.3d 335, 336 (3d Cir. 2002).

2 At the time, STARLIMS operated in four regions, designated as North America, 

Europe/Africa, Asia Pacific, and Latin America.

3 The parties disagree on Baron’s exact title, but for the sake of simplicity we refer 

to his position as General Manager. See A5.
3

level on the organizational chart. Notably, both Baron’s and Goss’s previous positions

(region-level general manager positions) were left vacant following their promotions. In 

addition to his duties as General Manager of STARLIMS, Baron took on the 

responsibilities of the vacant region-level general manager positions. 

In the summer of 2013, Abbott eliminated the position of General Manager of 

OneLab, resulting in Goss’s termination. He was 42 years old at the time. About six 

months later, in December of 2013, Abbott eliminated the position of General Manager

of STARLIMS, resulting in Baron’s termination. Baron was then 60. According to 

Abbott, the restructuring that caused Goss and Baron to lose their jobs reflected a desire 

“to shake things up” (A238 ¶ 19), to increase “visibility into the workings in the field” 

(A31 ¶ 42), and “to take a layer out of the organization, so that the organization could 

make decisions and act on them more quickly” (id. ¶ 41). Abbott further suggested that it 

restructured partially due to “the underperformance of [Abbott Informatics Solutions 

(“AIS”)].”4 (A31 ¶ 45.)

Shortly after Baron’s termination, STARLIMS promoted two country-level 

managers to region-level general manager positions. Simon Wood, who is six years 

younger than Baron, became the General Manager of Europe/Africa.5 Tamir Gottfried, 

who is 21 years younger than Baron, became the General Manager of the Americas.6 

 

4 STARLIMS is a division of AIS. 

5 Prior to Baron’s termination, he had recommended Wood for this position. 

6 After Baron’s termination, the North America and Latin America regions were

combined into “the Americas.”
4

Baron was not considered for either of these positions. In February 2015, Abbott hired 

Richard Lanchantin. By May of that year, Lanchantin was performing a role that 

mirrored Baron’s old position.7 At the time, Lanchantin was 59 years old.

On May 14, 2014, Baron filed a verified charge of discrimination with the Equal 

Employment Opportunity Commission, the Pennsylvania Human Relations Commission, 

and the Florida Commission on Human Relations, asserting claims of age discrimination. 

Three months later, he filed this action, alleging violations of the ADEA, PHRA, and

FCRA. After the close of discovery, Abbott filed a motion for summary judgment, 

arguing that Baron had failed to make out a prima facie case of age discrimination and 

that Baron had failed to show that Abbott’s nondiscriminatory justification for 

terminating him was a pretext for age discrimination. The District Court concluded that 

either ground was sufficient to grant the motion, and it entered summary judgment. 

Baron appealed.

 

7 The parties disagree about whether Lanchantin was hired into the position 

previously held by Baron, or whether he was hired into a different position, and switched 

roles in May of 2015. Regardless of whether Lanchantin started in Baron’s former 

position, the undisputed facts show, at a minimum, that he was hired for the purpose of 

one day filling Baron’s former position.
5

II. Discussion8

To determine whether a plaintiff is entitled to summary judgment for claims of age 

discrimination under the ADEA, PHRA, or FCRA, courts apply the burden shifting 

paradigm described by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 

U.S. 792 (1973). See Tomasso v. Boeing Co., 445 F.3d 702, 705 (3d Cir. 2006) (ADEA 

and PHRA); Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266, 1270 (11th 

Cir. 2014) (FCRA). Analysis under that paradigm takes place in three steps. McDonnell 

Douglas, 411 U.S. at 802-05. First, an employee must point to facts that establish a 

prima facie case of discrimination. Specifically, the employee must show “(1) that he 

was at least forty years old, (2) that he was fired, (3) that he was qualified for the job 

from which he was fired, and (4) that he ‘was replaced by a sufficiently younger person 

to create an inference of age discrimination.’” Tomasso, 445 F.3d at 706 n.4 (quoting 

Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.3 (3d Cir. 2002) (citation omitted)). If the

plaintiff was terminated as part of a “reduction in force,”9 he need not show that he was 

 

8 The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 

1332 and supplemental jurisdiction under 28 U.S.C. § 1367. We have jurisdiction 

pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of summary 

judgment is de novo. Tomasso v. Boeing Co., 445 F.3d 702, 705 n.3 (3d Cir. 2006). 

Summary judgment is appropriate if there are no disputes of material fact and if the 

moving party is entitled to judgment as a matter of law. Anderson, 477 U.S. 242, 250 

(1986); Fed. R. Civ. P. 56. Again, in reviewing the District Court’s summary judgment 

ruling, we view the facts in the light most favorable to the nonmoving party. See 

Anderson, 477 U.S. at 248-49; Fakete, 308 F.3d at 336.

9 A reduction in force takes place if an employee’s position is eliminated, and/or if 

there is a permanent cut in head count. See, e.g., Showalter v. Univ. of Pittsburgh Med. 

Ctr., 190 F.3d 231, 233 (3d Cir. 1999) (employees terminated because of “budgetary 

constraints”).
6

replaced by a younger person but can instead show that he was terminated while younger, 

similarly situated employees were retained. See Showalter v. Univ. of Pittsburgh Med. 

Ctr., 190 F.3d 231, 234-36 (3d Cir. 1999).

If the plaintiff establishes a prima facie case, the analysis moves to the second 

step: the burden to produce evidence shifts to the defendant-employer, who must provide

“a legitimate nondiscriminatory rationale” for its decision to terminate the plaintiff. 

Tomasso, 445 F.3d at 706. This burden of production is “‘relatively light’” – the 

employer need only “introduc[e] evidence which, taken as true, would permit the 

conclusion that there was a nondiscriminatory reason for the unfavorable employment 

decision.” Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (alteration in 

original)).

Finally, at the third step, the burden of production shifts back to the plaintiff, who 

must cite evidence indicating that the rationale offered by the employer is pretext for 

discrimination. Id. (citing Fuentes, 32 F.3d at 764).

We conclude that Baron’s case fails at the first step. He has not establish a prima 

facie case of age discrimination. Abbott admits that “[t]he first three elements [of the 

prima facie case] are not in dispute.” (Abbott Labs Br. at 10.) Baron was 60 years old at 

the time of his termination, was terminated from his position as General Manager of 

STARLIMS, and performed well during the course of his employment. The parties 

disagree, however, about whether Abbott retained similarly situated younger employees 

after Baron was terminated. 
7

Baron argues that Abbott retained at least two younger employees – Simon Wood 

(six years younger than Baron) and Tamir Gottfried (21 years younger than Baron). 

While it is true that both Wood and Gottfried continued working for Abbott after Baron’s 

departure, neither employee was similarly situated to Baron. While Baron was 

responsible for STARLIMS operations around the world, Wood and Gottfried were each 

responsible for operations in only one of STARLIMS’s geographic regions.10 In fact, the 

only employee who was similarly situated to Baron around the time of Baron’s 

termination was Scott Goss. Goss was nearly 19 years younger than Baron and, like 

Baron, was terminated as part of Abbott’s reorganization.

To the extent that Baron argues that he was replaced by a substantially younger 

employee when Abbott hired Richard Lanchantin, we disagree. While it is true that 

Baron was replaced by Lanchantin, it cannot fairly be said that the latter was 

“substantially younger” than the former. Lanchantin was 59 when he was hired, just one 

year younger than Baron was when terminated. In context, this is not enough of an age 

difference to raise an inference of age discrimination. Cf. O’Connor v. Consol. Coin 

 

10 As explained above, when Baron was promoted from regional general manager 

to General Manager of STARLIMS, there were vacancies in at least two region-level 

General Manager positions – the General Manager of Europe and Africa, and the General 

Manager of North America. In addition to his duties as General Manager of STARLIMS, 

Baron “perform[ed] the responsibilities of the [General Manager] Europe and [General 

Manager] North America positions.” (A239-40 ¶ 28.) His argument that he was replaced 

by Wood and Gottfried is premised on Wood’s and Gottfried’s having been promoted to 

region-level general manager positions where they performed some of the duties for 

which Baron had been responsible. But the fact that Baron performed some region-level 

duties did not transform him into a regional manager, especially since he only carried 

region-level duties because of staffing vacancies. Wood and Gottfried were not similarly 

situated to Baron (either before or after his termination), and Abbott’s retention of Wood 

and Gottfried does not support a prima facie case of discrimination.
8

Caterers Corp., 517 U.S. 308, 312 (1996) (explaining that the purpose of establishing a 

prima facie case is to establish an inference of discrimination).

Because Baron has failed to establish a prima facie case of age discrimination, we 

need not consider whether Abbott provided a sufficient, non-pretextual business 

justification for its actions.

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s grant of summary 

judgment.