                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-13-2005

Lyles v. Phila Gas Works
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2083




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                                                           NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 05-2083

                               WILHELMINA LYLES,

                                          Appellant


                                          v.

                                PHILA GAS WORKS

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Eastern District of Pennsylvania
                                (Civ. No. 04-cv-1561)
                     District Judge: Honorable Harvey Bartle, III
                   _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 10, 2005

            BEFORE: ALITO, SMITH and COWEN, CIRCUIT JUDGES


                               (Filed October 13, 2005)
                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

      Wilhelmina Lyles appeals pro se from the District Court’s order granting summary

judgment to her former employer, Philadelphia Gas Works (“PGW”), in this employment
discrimination suit. Lyles began working for PGW in 1986 as a Junior Accounting Clerk

and was promoted to the position of Senior Accounting Clerk in February of 2002.1 Lyles

alleges that Gwen MacMullen, her immediate supervisor, constantly harassed her by

closely supervising her and criticizing her work. Lyles, who was approximately 50 years

old at the time these events occurred, contends that she was singled out for this treatment

based on her age. On November 20, 2002, Lyles was suspended for ten days without pay,

following an incident involving herself, MacMullen, and Anne Breyer, the department

director. PGW contends that Lyles was suspended for insubordination when she refused

to retrieve documents from her work area for MacMullen’s review and caused a

disturbance by raising her voice and calling Breyer a liar. Lyles asserts that she was

suspended because of her age.2 The District Court granted PGW’s motion for summary

judgment. Lyles timely appealed.

       We have appellate jurisdiction under 28 U.S.C. § 1291. We review the District

Court’s grant of summary judgment de novo, viewing the underlying facts and all

reasonable inferences therefrom in the light most favorable to the party opposing the



       1
        As the parties are familiar with the facts, we recite them here only as necessary to
our discussion.
       2
          Lyles’ complaint originally alleged the additional claims of discrimination on
the basis of color and slander. In an order entered September 3, 2004, the District Court
dismissed these claims. As Lyles does not refer to this order in her brief, it is outside our
scope of review. See, e.g., MCI Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d
1086, 1092-93 (3d Cir. 1995). We also note that Lyles has filed a separate suit alleging
retaliatory termination. (E.D. Pa. Civ. No. 05-207).

                                              2
motion. Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 235 (3d Cir. 1995). Summary

judgment is appropriately granted where there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A

party opposing summary judgment cannot rest upon the “mere allegations or denials of

the adverse party’s pleading” but must respond with affidavits or depositions setting forth

“specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

       The Age Discrimination in Employment Act (“ADEA”) prohibits employers from

discriminating against individuals with respect to compensation, terms, conditions, or

privileges of employment because of age. 29 U.S.C. § 623(a)(1). We agree with the

District Court that Lyles established a prima facie case under the ADEA, because she

demonstrated that: 1) she is a member of the protected class, i.e., at least 40 years of age;

2) she is qualified for the position; 3) she suffered an adverse employment decision; and,

4) non-members of the protected class were treated more favorably. See Sempier v.

Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). After a plaintiff establishes a prima

facie case, the burden of production shifts to the defendant to supply a legitimate non-

discriminatory reason for the adverse employment decision. See id. PGW claims that it

suspended Lyles for insubordination and supported this reason with an affidavit from

Anne Breyer describing the incident, a copy of an email from Lyles to her union

representative in which Lyles admitted that she did refuse to retrieve the documents, and

excerpts from Lyles’ deposition testimony stating the same.



                                              3
       To defeat a defendant’s motion for summary judgment based on a legitimate non-

discriminatory reason, a plaintiff must point to some evidence from which a factfinder

could reasonably disbelieve the proffered reason or believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Lyles contends

that insubordination was not a valid reason for her suspension and that her age was the

real reason. According to Lyles, MacMullen often retrieved documents (including those

at issue) from Lyles’ work area without Lyles’ assistance or permission. Lyles argues

that, because MacMullen could have retrieved the documents herself, Lyles’ refusal to

retrieve them cannot reasonably be deemed “insubordination” and that PGW’s “reason” is

therefore pretextual. Clearly, Lyles believes that the suspension decision was

unsubstantiated and unfair. However, even if we accept this perception as true for

discussion purposes, it is insufficient to demonstrate pretext. The relevant question is not

whether PGW was wrong or mistaken in its decision to suspend Lyles; it is whether

Lyles’ age was more likely than not the underlying reason for the suspension. See

Fuentes at 765. We agree with the District Court that Lyles fails to present any evidence

to support an affirmative answer to this question.

       Lyles’ pro se complaint also appears to assert a hostile work environment claim




                                             4
based on allegations of ongoing harassment by MacMullen.3 Assuming that such a cause

of action exists under the ADEA, Lyles must show that the harassment was unwelcome;

that it was based on her age; that it was sufficiently severe or pervasive to alter the

conditions of her employment and create an abusive atmosphere; and that there is some

basis for imposing liability on the employer. See Causey v. Balog, 162 F.3d 795, 801 (4 th

Cir. 1998). See also Terry v. Ashcroft, 336 F.3d 128, 147-48 (2d Cir. 2003). In her

summary judgment response, Lyles described several confrontations between herself and

MacMullen which she asserts constitute harassment. However, nothing in Lyles’

proffered evidence could lead a reasonable factfinder to believe that Lyles was treated

differently because of her age. Indeed, as the District Court noted, Lyles, herself, stated

in her deposition that she “didn’t know” if age was a factor motivating MacMullen’s

actions. On appeal, PGW argues that MacMullen’s close supervision was justified and

appropriate in light of Lyles’ unsatisfactory work and was not related in any way to her

age. After a careful review of the record, we agree with PGW that Lyles has failed to

state a prima facie hostile work environment claim.

       For the foregoing reasons, we will affirm the judgment of the District Court.

Appellant’s motion to reconsider the Clerk’s order dated June 22, 2005 is denied.




       3
       We have not formally recognized a cause of action for hostile work environment
under the ADEA. As the parties do not dispute that such a cause of action exists, we
assume, without deciding, that it does for the purposes of this opinion.

                                               5
