                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                    No. 11-3083
                                   ____________

                               ANNA McCLEMENT,

                                           Appellant

                                         v.

                      PORT AUTHORITY TRANS-HUDSON
                               ____________

                   On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 2-09-cv-00522)
                    District Judge: Honorable Stanley R. Chesler
                                     ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  October 1, 2012

           Before: FUENTES, FISHER and GREENBERG, Circuit Judges.

                             (Filed: November 20, 2012)
                                    ____________

                            OPINION OF THE COURT
                                 ____________

FISHER, Circuit Judge.

      Anna McClement appeals from the District Court’s grant of summary judgment to

defendant Port Authority Trans-Hudson Corporation (“PATH”) on her allegations of age
discrimination and retaliation under the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq. We will affirm.

                                              I.

       Because we write principally for the parties, who are familiar with the factual

context and legal history of this case, we will set forth only those facts that are necessary

to our analysis.

       On July 6, 2007, McClement, a 47-year-old certified locomotive engineer

employed by PATH, used her cell phone to order food while operating a seven-car

passenger train. Based on her inappropriate conduct, PATH charged McClement with

violating its rules. McClement accepted responsibility for her behavior, and PATH

formally disciplined her by written reprimand and warning on August 1, 2007.

       PATH applies an unwritten, but well-established, promotional policy to a

disciplined employee. The process begins when PATH posts a promotional opportunity.

PATH’s announcement describes the position’s eligibility qualifications, which usually

include the requirement that the employee not be subject to pending disciplinary action as

of the bulletin’s closing date. PATH considers a disciplinary action to be “pending” for

one year from the date it is instituted. If the employee is subject to pending disciplinary

action, he is automatically screened out of possible promotions; if not, he is screened in.

PATH places screened-in employees on a horizontal roster, which lists all employees

eligible for potential promotion. PATH’s management retains the discretion to select the


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best eligible employee from the horizontal roster for actual promotion. The horizontal

roster may last for longer than a year. For this reason, if an employee eligible for

potential promotion is disciplined after PATH places her on the horizontal roster, she

remains on that list, even though she is ineligible for actual promotion during the one-

year pendency of her disciplinary action.

       On June 17, 2008, PATH posted a promotional opportunity for the operations

examiner training program. The announcement bulletin specified a closing date of

July 2, 2008, and cautioned that “pending disciplinary action will disqualify a candidate

from this promotional opportunity.” On July 1, 2008, McClement applied, and on

July 11, 2008, PATH notified her that it had screened her out because her July 2007

disciplinary action was still pending. PATH also screened out three other employees for

the same reason. PATH later placed four employees on the horizontal roster, two of

whom were over 40 years old and were actually promoted.

       On September 27, 2008, McClement filed an Equal Employment Opportunity

Commission (“EEOC”) charge against PATH, alleging that PATH discriminated against

her on the basis of her age. On November 6, 2008, EEOC dismissed the charge as

untimely.

       On October 15, 2008, PATH posted another promotional opportunity for the

operations examiner training program, specifying a closing date of October 30, 2008.

McClement re-applied, and because her disciplinary action was no longer pending,


                                             3
PATH screened her in. PATH placed McClement on the horizontal roster on

November 24, 2008.

       On December 9, 2008, McClement used a fraudulent parking pass in an

unauthorized PATH lot, and when questioned about the source of her counterfeit pass,

she falsely stated that PATH had given it to her. On February 9, 2009, PATH held an

investigatory hearing after which it disciplined McClement by suspending her without

pay for two weeks and suspending her parking privileges for six months. PATH held an

appellate hearing and denied McClement’s appeal on March 30, 2009. The Public Law

Board later sustained PATH’s discipline of McClement.

       As a result of her second disciplinary action, McClement became ineligible for

promotion from February 23, 2009 to February 23, 2010. When her discipline expired,

PATH’s management decided McClement was not the right fit for the operations

examiner position, which was “a job that held high integrity and responsibility,” because

she had been “untruthful.” Appellee’s Supp. App. at 5.

       On February 27, 2009, McClement filed a second EEOC charge, alleging that

PATH (1) discriminated against her on the basis of her age by screening her out of the

July 2, 2008 operations examiner training program and (2) retaliated against her for filing

her first EEOC charge by disciplining her for her counterfeit parking pass. On

August 20, 2009, EEOC dismissed McClement’s second charge on the merits.




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       On February 5, 2009, McClement filed the instant complaint under the ADEA.

On October 28, 2009, McClement filed an amended complaint that incorporated the

allegations in her second EEOC charge. On June 29, 2011, the District Court granted

summary judgment in favor of PATH. McClement’s timely appeal to this Court

followed.

                                             II.

       The District Court had jurisdiction over this case pursuant to 28 U.S.C. § 1331.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review the

District Court’s grant of summary judgment de novo. Holender v. Mut. Indus. N., Inc.,

527 F.3d 352, 354 n.1 (3d Cir. 2008). We apply the same test as the District Court, and

will affirm its ruling if, viewing the evidence in the light most favorable to the

non-moving party, we find that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Dilworth v. Metropolitan Life Ins. Co.,

418 F.3d 345, 349 (3d Cir. 2005).

                                             III.

                                             A.

       McClement argues that the District Court erred when it granted summary

judgment to PATH on her claim of age discrimination under the ADEA. We disagree.

       The ADEA makes it “unlawful for an employer . . . to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with respect to


                                              5
his compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). This protection against age discrimination is

“limited to individuals who are at least 40 years of age.” Id. § 631(a). When a plaintiff

alleges that he has suffered age discrimination predicated on disparate treatment, liability

under the ADEA depends on whether the plaintiff’s age “actually motivated the

employer’s decision.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)).

       Where, as here, a plaintiff proffers only indirect evidence of discrimination, we

apply the familiar three-step McDonnell Douglas burden shifting framework under which

the plaintiff carries the initial burden of establishing a prima facie case. Id. (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). If the plaintiff is able to show

a prima facie claim of discrimination, the burden of production then shifts to the

defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s

rejection.” McDonnell Douglas, 411 U.S. at 802. If the defendant does so, the burden

then shifts back to the plaintiff to give him an opportunity to show that the stated reason

is in fact mere “pretext.” Id. at 804.

       When a plaintiff complains of age discrimination under the ADEA based on his

employer’s failure to promote him, the prima facie case requires him to show that (1) he

was a member of the protected class, i.e., over 40 years old; (2) he was qualified for the

new position; (3) he suffered an adverse employment decision, i.e., he was passed over


                                               6
for the desired promotion; and (4) his employer’s refusal to promote him occurred under

circumstances that give rise to an inference of age discrimination. Monaco, 359 F.3d at

300; Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999).

       McClement argues that she established a prima facie case of discrimination under

the ADEA. She is incorrect. With regards to the second requirement, in order for

McClement to have been qualified for the promotional program, she must have been

eligible for it. But the bulletin that advertised the promotional program explicitly stated

that “unsatisfactory attendance record, and/or pending disciplinary action will disqualify

a candidate from this promotional opportunity.” App. at 19 (emphasis added). PATH’s

policy is that all employees can be screened out of promotional opportunities for one year

following any disciplinary action. When McClement applied for the first promotional

program on July 1, 2008, she was still within one year of her disciplinary action related to

improper use of her cell phone, which occurred on July 6, 2007.

       McClement argues that (1) because the policy was unwritten, it could not be used

against her and (2) the District Court erred by making a determination of credibility based

on the testimony of a PATH employee. But the mere fact that a policy is unwritten does

not necessarily make it illegitimate. See Raytheon Co. v. Hernandez, 540 U.S. 44, 46, 53

(2003) (holding that employer’s unwritten policy not to rehire certain types of former

employees “plainly satisfied” its obligation to articulate a legitimate, nondiscriminatory

reason for refusing to rehire plaintiff).


                                             7
       Moreover, the District Court did not base its decision on whether there was a

policy solely on the testimony of one PATH employee. Rather, McClement admitted in

her testimony that she was aware of the policy and that before applying for the second

promotional opportunity, she spoke with PATH management about whether her one year

period had expired so that she could apply for the promotion.

       Because McClement failed to establish a prima facie case of discrimination, we

need not decide whether PATH’s proffered non-discriminatory reason for its refusal to

promote McClement was pretext. We conclude that the District Court did not err in

granting summary judgment to PATH on McClement’s ADEA discrimination claim.

                                              B.

       McClement also contends that the District Court erred when it granted summary

judgment to PATH on her claim of retaliation under the ADEA. We disagree.

       In order to establish a prima facie case of retaliation under the ADEA, a plaintiff

must show that (1) she was engaged in a protected activity; (2) the defendant took an

adverse employment action after or contemporaneous with the plaintiff’s protected

activity; and (3) a causal link exists between the plaintiff’s protected activity and the

adverse employment action. Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 508-09 (3d

Cir. 2004).

       Neither adverse employment action at issue in this case amounted to retaliation

under the ADEA. The discipline issued on February 23, 2009, was due to McClement’s


                                              8
display of a fraudulent parking pass, not because of her EEOC complaint. To the extent

that McClement argues that this discipline was based on a false allegation (and therefore

pretextual), we disagree. The disciplinary charge was sustained after a fair and impartial

hearing at which McClement had a chance to present evidence and conduct cross-

examination. It was then upheld after a proper appeal. Finally, the Public Law Board

sustained the charge, finding the discipline to be justified by McClement’s “willful

deceit.” Thus, PATH’s disciplinary action against McClement for her fraudulent

behavior was justified.

       Nor was PATH’s November 2008 refusal to promote McClement due to

McClement’s EEOC filing. PATH’s training program announcement made it clear that

PATH management has discretion to choose the order in which employees are selected

for promotion. McClement’s supervisor provided a legitimate reason for not choosing

her for promotion when he expressed his belief that she lacked the candor needed for the

job. McClement offered no contrary evidence to show this decision actually was a result

of her EEOC filing.

       We conclude that the District Court did not err in granting summary judgment to

PATH on McClement’s ADEA retaliation claim.

                                            IV.

       For the reasons set forth above, we will affirm the order of the District Court.




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