                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                      No. 10-4462
                                      __________

                               SHARON MCGUIGAN,

                                                Appellant,
                                           v.

            SECRETARY OF THE U.S. DEPARTMENT OF TREASURY.

                                      __________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvnia
                               (D.C. No. 2-09-cv-01129)
                        District Judge: Hon. Petrese B. Tucker

                                      __________

                      Submitted under Third Circuit LAR 34.1(a)
                                   June 20, 2011

Before: HARDIMAN and ALDISERT Circuit Judges, and RESTANI,* Int’l Trade Judge.

                                 (Filed: June 21, 2011)

                                      __________

                              OPINION OF THE COURT
                                    __________




*
 Honorable Jane A. Restani, Judge of the United States Court of International Trade,
sitting by designation.

                                           1
ALDISERT, Circuit Judge.

      Sharon McGuigan appeals from the order of the United States District Court for

the Eastern District of Pennsylvania granting her employer’s motion for summary

judgment in her action alleging gender discrimination in violation of Title VII, 42 U.S.C.

§ 2000e-2 (2010), and age discrimination in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 623 (2010). We will affirm the District Court’s order.

                                            I.

      Because the parties are familiar with the events that gave rise to this appeal, we set

forth only the facts necessary to explain our disposition. On May 17, 2006, Andrew

Zuckerman, the Field Director of the Internal Revenue Service (“IRS”) Philadelphia

branch, chose Frank DelSignore for the position of Supervisory Management and

Program Analyst (“SMPA”) over McGuigan. At the time of selection, DelSignore was

under the age of 40 and McGuigan was 47. DelSignore was a level two manager with

one-and-a-half to two years of experience at that position. McGuigan had been working

for four to five years as a program analyst for the team that the selected SMPA would

supervise. A program analyst is not a management position. Before being a program

analyst, McGuigan had eight years of first level management experience and four years

of second level management experience. There were no specific written criteria created

for the SMPA position, which is a first level management position.

      Charles Felthaus, direct supervisor of the SMPA, selected two female

interviewers, Joann Brown and Marjorie Gallagher, to sit with him on the interview

panel. All interviewers were over 40 years of age. At the time of selection, Brown was


                                            2
the direct supervisor of DelSignore. Brown and her husband are personal friends of

DelSignore. One of the department managers raised concerns about having Brown on the

panel, but Felthaus decided to keep her on the panel because both Brown and Gallagher

would be working directly with the selectee. Felthaus previously had selected McGuigan

for two positions that directly reported to him and gave her outstanding evaluations for

both.

        The interviewers agreed that DelSignore was a better candidate than McGuigan

because he was more forward thinking and adaptable to change. They unanimously

recommended DelSignore to Andrew Zuckerman, who was the selecting official. He

chose DelSignore over McGuigan and gave the following reasons for his choice: (1) the

interview panel unanimously recommended DelSignore; (2) his package was ranked one

point higher than McGuigan’s; (3) at the time of selection he was working two levels

above McGuigan in a position that supervised seven to nine managers; (4) at that time

McGuigan was not working in a managment position; and (5) McGuigan’s management

experience had been several years in the past. Zuckerman was also over the age of 40 at

the time of selection.

        On March 11, 2009, McGuigan filed a complaint against the IRS alleging age and

gender discrimination. On August 9, 2010, the IRS moved for summary judgment. On

September 24, 2010, the District Court granted the IRS’s motion for summary judgment.

McGuigan timely appealed.

                                            II.




                                             3
       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

We have jurisdiction pursuant to 28 U.S.C. § 1291.

       Our review of a grant of summary judgment is plenary. See, e.g., Fed. Home Loan

Mortg. Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). In reviewing a

district court’s decision, we assess the record using the same summary judgment standard

that guides the district court. See id. To prevail on a motion for summary judgment, the

moving party must demonstrate “that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Rule 56(c), Federal Rules of

Civil Procedure (2010) (amended Dec. 1, 2010). A factual dispute is “genuine” and thus

warrants trial “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A court

reviewing a summary judgment motion must evaluate the evidence in the light most

favorable to the nonmoving party and draw all reasonable inferences in that party’s

favor.” EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

                                             III.

       McGuigan contends that her failure to be promoted was the product of gender and

age discrimination. The framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1979), applies to both causes of action. See Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-254 (1981) (applying the McDonnell Douglas framework to

gender discrimination); Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009)

(reaffirming the application of the McDonnell Douglas framework to age discrimination).

Under this framework, a plaintiff has the burden of proving by a preponderance of the


                                              4
evidence a prima facie case of discrimination. See Burdine, 450 U.S. at 253; Sorba v. Pa.

Drilling Co., 821 F.2d 200, 202 (3d Cir. 1987). To establish a prima facie case for gender

discrimination an employee must show that (1) she applied and was qualified for the

vacant position, and (2) she was rejected under circumstances that give rise to an

inference of unlawful discrimination. Burdine, 450 U.S. at 253. To establish a prima facie

case for age discrimination, an employee must show that (1) she is 40 years of age or

older, (2) the employer took an adverse employment action against her, (3) she was

qualified for the position in question, and (4) she was ultimately replaced by another

employee who was sufficiently younger to support an inference of discriminatory animus.

Allentown, 589 F.3d at 689. If the plaintiff succeeds in establishing a prima facie case,

the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory

reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. Should the

defendant carry this burden, the plaintiff must prove by a preponderance of the evidence

that the reasons offered by the defendant were a pretext for discrimination. Id. at 804.

       We will assume without deciding that McGuigan established a prima facie case

because the District Court’s ruling rests on (and the IRS does not contend otherwise) its

finding that McGuigan failed to show pretext. McGuigan’s major argument is that her

employer’s reasons for choosing DelSignore were suspect, because they were a pretext

for unlawful discrimination.

       To survive summary judgment, McGuigan was required to provide evidence

suggesting that the employer’s proffered reasons were a pretext for unlawful

discrimination. See Burdine, 450 U.S. at 253; Allentown, 589 F.3d at 690. She failed to


                                             5
do so. What she did offer was: (1) Andrew Zuckerman’s description of her managing

experience as “old and cold”; (2) the interview panel member Joann Brown was a

personal friend of DelSignore; and (3) DelSignore’s old position was “back-filled,”

suggesting that the application and interview process had no bearing on his selection. We

are not convinced. Zuckerman did not use the words “old or cold” to describe

McGuigan’s age or gender but rather to describe her management experience, which was

several years in the past. Evidence that DelSignore was friends with Brown, or that his

previous position was filled before he was selected for the SMPA, does not trump the

neutral reasons offered by Zuckerman and the interview panel. At bottom, all the

evidence provided by McGuigan, evaluated in the light most favorable to her, does not

establish that Zuckerman’s reasons for choosing DelSignore were a pretext for unlawful

discrimination on the basis of age or gender.

       We therefore agree with the District Court that McGuigan did not provide

evidence that would permit a jury to conclude that she was discriminated against because

of her age or gender. Accordingly, we hold that the District Court properly granted

summary judgment in favor of the IRS.

                                         *****

       We have considered all contentions presented by the parties and conclude that no

further discussion is necessary.

       The judgment of the District Court will be AFFIRMED.




                                                6
