                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2002

Elwell v. PP&L Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4512




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                                                                       NOT PRECEDENTIAL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.


                                   ________________________
                                      OPINION OF THE COURT
                                     ________________________

FUENTES, Circuit Judge.

        Plaintiff Edward Elwell appeals           the      District Court’s grant   of the   motion for

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

& L, Inc., and the denial of his motion for reconsideration 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 factual 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 pursuant 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,

beginning 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 employment actions in retaliation for filing a charge of discrimination with

the Equal Employment Opportunity Commission (EEOC).                     Defendant moved for summary



                                                     -2-
judgment as to all counts of Elwell’s complaint.

            Initially,   the   District Court denied Defendant’s motion for summary judgment.

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

judgment, which the District Court granted 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 Manager 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 reasons advanced by the

Defendant for the selection of other candidates for these positions. 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 EEOC, 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 continuing violations theory and were therefore time-barred.             The court

rejected Elwell’s claim of retaliation based on his employer’s failure to hire him 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 reconsideration, which the court denied in its

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

                                                   -3-
discrimination arising out of Defendant’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 “mailbox 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 failed to show that he was qualified for the Audit Team Leader position and,

therefore, failed to establish a prima 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 prima facie case, no reasonable finder of fact could find that he was denied the position based

on age discrimination.

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

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

The court held that, even assuming that Elwell could make out a prima 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 age discrimination

motivated the hiring decision.        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 Elwell’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

                                                      -4-
discrimination claims 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 reconsideration varies with the

nature of the underlying judicial decision.”     Federal 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 that he did not establish a prima

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 parties.     In response, Defendant asserts that, because Appellant failed to

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

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

                                                  -5-
          The parties essentially agree as to the controlling legal standards. In order to establish

a prima facie ADEA case, a plaintiff must show that “(1) he 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.”

Sempier 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

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

action.    See 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 discrimination

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 District Court held that, even assuming Elwell could establish a prima facie case

of age discrimination arising out of the selection of a younger candidate for the Audit Team

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

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

pretextual.    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 Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme

Court held that a juror could “infer the ultimate fact of discrimination from the falsity of the

                                                 -6-
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, combined with sufficient
               evidence to find that the employer’s asserted justification is
               false, may permit the trier of fact to conclude that the employer
               unlawfully discriminated.

               This is not to say that such a showing by the plaintiff will always
               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 sufficient evidence to reject the
               defendant’s explanation, no rational factfinder could conclude
               that the action was discriminatory. For instance, an employer
               would be entitled to judgment as a matter of law if the record
               conclusively revealed 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 evidence that
               no discrimination had occurred.

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

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

               because the factfinder may infer from the combination of the
               plaintiff’s prima facie case and its own rejection of the
               employer’s proffered non-discriminatory reasons that the
               employer 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
               defeat a motion for summary judgment by either (i) discrediting
               the proffered reasons, either circumstantially or directly, or (ii)
               adducing evidence, whether circumstantial or direct, that
               discrimination was more likely than not a motivating or
               determinative cause of the adverse employment action. Thus, if
               the plaintiff has pointed to evidence sufficiently 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.

                                                -7-
Fuentes, 32 F.3d at 764 (emphasis in original) (citations omitted).     Defendant came forward

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

Defendant who interviewed Elwell for the Audit Team Leader position in February of 1997 and

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

Elwell 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 2.43 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 received 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 interview 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

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

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

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

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

explained,

                                              -8-
               [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 inference that favor the nonmoving party.
               However, we may only consider reasonable inferences; we may
               not improperly consider those inferences that are unreasonable.
               We have drawn all reasonable inferences in favor of Plaintiff.

                       It remains our 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, Federal 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 given 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 structure 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 electric suppliers.” App. at 232, Krall

                                                -9-
Decl.

        The District Court properly rejected this argument on the basis that Elwell failed 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 reasonable

factfinder could rationally find them ‘unworthy of credence[.]’” Fuentes, 32 F.3d at 765

(emphasis 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

discrimination, he failed to carry his burden under the McDonnell 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 proved 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 Elwell had expressed doubts about the team’s ability to

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

                                                  -10-
he did not present evidence 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 was fifty years old at the time he made his hiring choice. See 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 plaintiff’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

        After 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




                                                   -11-
