                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                              _______________

                                     No. 10-3600
                                   _______________

                              RAYMOND C. REYNOLDS,

                                                 Appellant

                                            v.

             DEPARTMENT OF THE ARMY; FRANCES J. HARVEY,
                      SECRETARY OF THE ARMY;
                  NORMA KORNWEBEL; JOHN DOES 1-10

                                   _______________

                   On Appeal from the United States District Court
                            For the District of New Jersey
                       (D.C. Civil Action No. 3-08-cv-02944)
                    District Judge: Honorable Freda L. Wolfson
                                  _______________

                                  Argued June 22, 2011
                                   _______________

              Before: BARRY, AMBRO, and COWEN, Circuit Judges

                              (Opinion filed: July 22, 2011)

Ty Hyderally, Esquire (Argued)
Hyderally & Associates
33 Plymouth Street, Suite 202
Montclair, NJ 07042

      Counsel for Appellant
Mark C. Orlowski (Argued)
Office of United States Attorney
Room 430
402 East State Street
Trenton, NJ 08608

       Counsel for Appellees

                                    _______________

                                       OPINION
                                    _______________

AMBRO, Circuit Judge

       Plaintiff-appellant Raymond C. Reynolds sued Defendants Department of the

Army and Dr. Frances J. Harvey, Secretary of the Army, asserting claims of age

discrimination and retaliation arising under the Age Discrimination in Employment Act,

29 U.S.C. § 621 et seq. (“ADEA”). 1 The District Court granted summary judgment in

favor of Defendants, and Reynolds appealed. We now affirm.

                                   I.     Background

       As we write solely for the parties, we recite only those facts necessary for our

decision. In January 2004, Reynolds, a longtime employee of the Federal Government,

began an engineering position with the U.S. Army in the On-The-Move Testbed section

(“Testbed”) of the Communications-Electronics Research, Development, and

Engineering Center, located in Fort Monmouth, New Jersey. His supervisor was Norma

Kornwebel. She asserts that Reynolds did not take his job at the Testbed seriously, that


1
  The other defendants named in the complaint – Norma Kornwebel and John Does –
were later dismissed from this case by stipulation, as were several additional state and
federal law claims.
                                             2
he improperly delegated responsibilities to others, and that he failed to comply with

directives. For his part, Reynolds generally denies Kornwebel’s allegations of poor job

performance, and claims that she treated him dismissively from the start and failed to

present him with a job description or position objectives.

       In August 2004, Kornwebel evaluated Reynolds’ performance, concluding that he

had failed to meet two out of his seven job objectives. For unclear reasons, she then

waited for nearly two months before meeting with Reynolds about his evaluation and

presenting him with a Performance Improvement Plan (“PIP”). Under the PIP, he was

given 90 days either to bring his performance to an acceptable level or face the possibility

of reassignment, demotion, or termination. On November 4, 2004, the day after he

received the PIP, Reynolds applied for two early retirement incentive programs, the

Voluntary Early Retirement Authority (“VERA”) and Voluntary Separation Incentive

Pay (“VSIP”).

       In December 2004, Reynolds, then aged 51, submitted a complaint to the Equal

Employment Opportunity Commission, raising allegations of age discrimination.

Subsequently, Reynolds was offered a 90-day extension on his PIP, but was denied an

extension of time for accepting VERA/VSIP benefits (for which he had by then been

approved). Reynolds declined the PIP extension, but states that he would have accepted

the extension and remained working at the Testbed had he also received an extended

window for electing VERA/VSIP.




                                             3
       On January 3, 2005, Reynolds exercised his early retirement option through

VERA/VSIP. In return, he received an incentive payment of $25,000 and a reduced

annuity.

                                      II.    Analysis

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary

judgment de novo, Ray v. Twp. of Warren, 626 F.3d 170, 173 (3d Cir. 2010), but review

its evidentiary rulings for an abuse of discretion, Acumed LLC v. Advanced Surgical

Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009). We first address an evidentiary issue

presented by this case, and then examine Reynolds’ age discrimination and retaliation

claims in turn.

A.     Evidentiary Issue

       To support his claim of age discrimination, Reynolds relied heavily on his own

affidavit and that of Linda Castellano, Kornwebel’s former secretary. Relying on Federal

Rule of Civil Procedure 56(e) 2 and District of New Jersey Local Rule 7.2(a), both of

which require affidavits offered at summary judgment to be based on affiants’ personal

knowledge, the District Court concluded that significant portions of the Reynolds and

Castellano affidavits were flawed. In particular, the Court determined that both affidavits

contained numerous statements that were improper because they amounted to (i) legal

argument, (ii) subjective views without any factual foundation, or (iii) unsupported

2
  Effective December 1, 2010, Fed. R. Civ. P. 56 was amended. The requirements for
affidavits are now listed in subsection (c)(4) of the rule, as opposed to subsection (e), but
they are substantially the same as they were before.
                                              4
assertions made in the absence of personal knowledge. Accordingly, the Court

considered only “those statements . . . [that did] not suffer from the evidentiary

deficiencies [it had] categorically described” in granting summary judgment. Reynolds v.

Dep’t of Army, 2010 WL 2674045, at *10 (D.N.J. 2010).

       The District Court was unforgiving in its application of the relevant evidentiary

rules, but it cannot be denied that the Reynolds and Castellano affidavits were rife with

conclusory statements for which no basis in fact or personal knowledge was ever

provided. 3 For this reason, we cannot conclude that the District Court’s evidentiary

determinations were “arbitrary, fanciful, or clearly unreasonable,” and we therefore

uphold those determinations insofar as they are material to this opinion. 4 See Acumed,

561 F.3d at 211 (quotation marks omitted).

B.     Age Discrimination Claim




3
  To list but two examples (among many) of statements made without support, Castellano
claimed that “in reality, placing an employee on a PIP is a step toward getting rid of
them,” Castellano Aff. ¶ 107, and Reynolds asserted that “the PIP was a mere formality
to terminate me . . . and I was thus forced to retire to avoid being terminated,” Reynolds
Aff. ¶¶ 44-45, Oct. 19, 2009.
4
  At oral argument, we noted that a full deposition of Castellano would have made a
valuable addition to the evidentiary record in this case and may have improved Reynolds’
chances of surviving summary judgment. At that time, counsel for Reynolds—Ty
Hyderally—stated that no such deposition had ever taken place. Opposing counsel,
however, informed us that Castellano had, in fact, been deposed in 2009, and that Mr.
Hyderally was present at that deposition. The latter stated during rebuttal that he did not
recall being present, but has since conceded that he was. Whether Mr. Hyderally’s error
resulted from a lack of candor or mere unpreparedness, it was a mistake unbecoming an
attorney appearing before a federal court.
                                              5
       Where, as here, an age discrimination plaintiff relies on indirect evidence, 5 we test

the sufficiency of a claim at summary judgment using a slightly modified version of the

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). Under

that framework, the plaintiff must first establish a prima facie case of discrimination by

demonstrating four elements: “first, that the plaintiff is forty years of age or older;

second, that the defendant took an adverse employment action against the plaintiff; third,

that the plaintiff was qualified for the position in question; and fourth, that the plaintiff

was ultimately replaced by another employee who was sufficiently younger to support an

inference of discriminatory animus.” Id. We agree with the District Court’s conclusion

that Reynolds has not raised a dispute of material fact as to whether he was the subject of

an adverse employment action, and has thus failed to set forth a prima facie case of

discrimination.

       The Supreme Court has defined an adverse employment action as a “significant

change in employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998); see also Weston v.

Pennsylvania, 251 F.3d 420, 430-31 (3d Cir. 2001). The action that had the most

potential to satisfy this standard was Reynolds’ placement on a PIP. As the District Court

noted, however, other Circuit Courts have concluded that a PIP is not an adverse


5
 As the District Court properly concluded, the record in this case contains no direct
evidence of discrimination.
                                               6
employment action absent accompanying changes to pay, benefits, or employment status.

See, e.g., Cole v. Illinois, 562 F.3d 812, 816-17 (7th Cir. 2009); Haynes v. Level 3

Commc’ns, LLC, 456 F.3d 1215, 1224 (10th Cir. 2006) (citing cases); Givens v. Cingular

Wireless, 396 F.3d 998, 998 (8th Cir. 2005).

       We see no reason to deviate from our sister Courts of Appeal. A PIP differs

significantly from the types of employment actions that qualify as adverse. As illustrated

by this case, PIPs are typically comprised of directives relating to an employee’s pre-

existing responsibilities. In other words, far from working a change in employment

status, a PIP is a method of conveying to an employee the ways in which that employee

can better perform the duties that he or she already has. We note that a likely

consequence of allowing suits to proceed on the basis of a PIP would be more naked

claims of discrimination and greater frustration for employers seeking to improve

employees’ performance. Thus, because Reynolds failed to demonstrate that his PIP was

accompanied by an adverse change in the conditions of his employment, 6 we hold that

Reynolds’ placement on the PIP did not qualify as an adverse employment action.

       Reynolds also argues that he was subjected to a hostile work environment and then

constructively discharged, and that either of these acts can constitute an adverse

employment action. However, a hostile work environment claim requires discrimination

that is “severe and pervasive,” Weston, 251 F.3d at 426, and a constructive discharge

6
  Reynolds asserted at various points in the record that he was told his PIP would be
accompanied by a pay decrease. As the District Court observed, however,
“conspicuously absent in the record is any affirmative statement from Reynolds . . . that
he ever actually suffered the downgrade or pay decrease.” Reynolds, 2010 WL 2674045,
at *12.
                                               7
claim requires working conditions that are “so unpleasant or difficult that a reasonable

person would have felt compelled to resign,” Duffy v. Paper Magic Group, Inc., 265 F.3d

163, 167 (3d Cir. 2001) (quotation marks omitted). Nothing Reynolds has pointed to in

the record rises to the level of severity necessary to satisfy these standards.

       For the above-stated reasons, Reynolds has failed to satisfy his burden of

demonstrating an adverse employment action, and consequently we need not examine the

other prongs of a prima facie case. Accordingly, we conclude that the District Court did

not err in granting summary judgment on Reynolds’ age discrimination claims.

B.     Retaliation Claim

       To establish a prima facie case of retaliation, an ADEA plaintiff “must show: (1)

that he engaged in protected conduct; (2) that he was subject to an adverse employment

action subsequent to such activity; and (3) that a causal link exists between the protected

activity and the adverse action.” Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir.

1995). As the District Court points out, Reynolds has failed to identify any evidence

from which a reasonable jury could infer a causal connection between the submission of

his age discrimination complaint in December 2004 and any subsequent adverse

treatment to which he may have been subjected. Thus, his claim fails.

                                      *   *   *   *   *

       For the foregoing reasons, we affirm the decision of the District Court.




                                              8
