                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-8-2004

McCabe v. Voegele Mech Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3444




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Recommended Citation
"McCabe v. Voegele Mech Inc" (2004). 2004 Decisions. Paper 510.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/510


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                                                      NOT PRECEDENTIAL


            IN THE UNITED STATES COURT
                     OF APPEALS
                FOR THE THIRD CIRCUIT


                        NO. 03-3444


                    JAMES P. MCCABE,
                                Appellant

                              v.

             VOEGELE MECHANICAL, INC.




             On Appeal From the United States
                         District Court
           For the Eastern District of Pennsylvania
            (D.C. Civil Action No. 02-cv-07938)
            District Judge: Hon. Berle M. Schiller




       Submitted Pursuant to Third Circuit LAR 34.1(a)
                        July 1, 2004


BEFORE: AM BRO, ALDISERT and STAPLETON, Circuit Judges

                (Opinion Filed: July 8, 2004 )
                                OPINION OF THE COURT




STAPLETON, Circuit Judge:


         Appellant James McCabe (“McCabe”) was a sixty-six year old plumber when he

was laid off on December 19, 2001, by appellee Voegele Mechanical, Inc. (“Voegele”).

He brought this action asserting claims under the Age Discrimination in Employment Act

(“AEDA”). The District Court granted summary judgment to Voegele, and this appeal

followed. We will affirm.

         The District Court found that McCabe had tendered a prima facie case. It

concluded, however, that a reasonable trier of fact, based on the evidence tendered by

Voegele, could not find that McCabe’s termination was attributable to age discrimination

rather than the legitimate, non-discriminatory reasons Voegele put forward – the work to

be done called for fewer plumbers, resulting in a reduction in force, and McCabe was

regarded as the slowest of the plumbers employed on the site.

         The District Court’s opinion contains a thorough and accurate analysis of the

evidence in the summary judgment record viewed in the light most favorable to McCabe.

We agree with the conclusion there reached for substantially the same reasons there

given.



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       The undisputed evidence indicated that the tapering design of the building where

McCabe was working – the Dockside Project – mandated a reduction in force as the job

progressed to the ninth floor. McCabe testified that he was working on the eighth floor

when he was laid off and that the carpenters whose work had to precede his were also on

that floor. There was no admissible evidence that, following McCabe’s termination,

Voegele had plumbing work available either at the Dockside Project or at any other

Voegele site.

       With respect to McCabe’s productivity, Mr. Murtha, the project foreman and the

one who made the termination decision, testified that Mr. Campbell, M cCabe’s unit

foreman, told him that McCabe was “the least productive man I had on copper,” requiring

two days to do a “B” unit. McCabe insisted that it took him only a day and a half to do a

“B” unit, but Murtha testified such a unit could normally be done in six to ten hours, and

there was no contrary evidence.

       With respect to the testimony regarding the Christmas party and M cCabe’s theory

that Mr. Voegele there learned of McCabe’s age and determined to fire him, there is no

competent evidence that Mr. Voegele learned McCabe’s age at the party and, on this

record, McCabe’s theory is sheer speculation.

       The judgment of the District Court will be affirmed.




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