                                                NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-2458
                               _____________

                             LISA MCKENNA,
                                     Appellant

                                      v.

       HEALTHEASE, INC.; LOCKHEED MARTIN CORPORATION;
                ERIC MAMON; ARMAND TECCO
                          _____________


               On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                       District Court No. 2-10-cv-03940
               District Judge: The Honorable Berle M. Schiller


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                July 7, 2014

         Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

                            (Filed: July 15, 2014)

                          _____________________

                                OPINION
                          _____________________

SMITH, Circuit Judge.
      Lisa McKenna (“McKenna”) appeals from an order of the United States

District Court for the Eastern District of Pennsylvania granting summary judgment

to defendants Healthease, Inc. (“Healthease”), Armand Tecco (“Tecco”), and

Lockheed Martin Corporation (“Lockheed Martin”) in McKenna’s suit for gender

and age discrimination. For the reasons set forth below, we will affirm.

      McKenna is a woman who, at all times relevant to this suit, was over the age

of forty. Tecco is the owner of Healthease, a company that provides onsite fitness

services to businesses. Pertinent to the allegations in this appeal, Healthease

entered into a contract with Lockheed Martin to provide onsite fitness services at

Lockheed Martin’s corporate facility in King of Prussia, Pennsylvania.

      Healthease hired McKenna in September 2008 and assigned her to work as

the fitness manager at Lockheed Martin’s facility. In January 2009, Tecco and

another Healthease employee, Eric Mamon, informed McKenna that her

employment was being terminated.

      On July 10, 2009, McKenna filed for chapter 7 protection in the United

States Bankruptcy Court for the Central District of California. See Chapter 7

Voluntary Petition, In re Lisa R. McKenna, No. 8:09-bk-16886ES (Bankr. C.D.

Cal. July 10, 2009), ECF No. 1. McKenna did not list a discrimination claim as an

asset on her bankruptcy schedules, nor did she otherwise disclose such a claim to




                                      2
the Bankruptcy Court. On December 16, 2009, the Bankruptcy Court issued a

discharge to McKenna and closed her bankruptcy proceeding.

      In 2010, McKenna filed this lawsuit, alleging gender discrimination under

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.,

age discrimination in violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq., and state law discrimination claims under the

Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. Ann. § 951 et

seq. Her complaint sought both money damages and injunctive relief.

      Defendants moved for dismissal, arguing that McKenna lacked standing to

bring claims for damages because the bankruptcy trustee, not McKenna, was the

correct party in interest to bring such claims. On December 5, 2012, McKenna’s

counsel advised the District Court that the bankruptcy trustee would be seeking to

reopen McKenna’s bankruptcy proceeding and obtain permission from the

Bankruptcy Court to pursue McKenna’s discrimination claims. On January 15,

2013, the District Court ruled that the bankruptcy trustee, and not McKenna, was

the appropriate party to bring these claims. The District Court gave McKenna until

February 25, 2013 to reopen her bankruptcy proceeding and substitute the trustee

into this discrimination suit.

      McKenna did not substitute the trustee by this deadline. Rather, on February

25, 2013, the trustee submitted a motion to the District Court, indicating that




                                       3
McKenna’s bankruptcy proceeding had not been reopened but that the trustee “will

seek to move the Bankruptcy Court for an order reopening the case and for

reappointment of the Trustee.” Request of Jeffrey I. Golden, Former Chapter 7

Trustee for the Bankruptcy Estate of Lisa McKenna for Order Not Dismissing

Pending Litigation at 2, McKenna v. Healthease, Inc., No. 2:10-cv-03940-BMS

(E.D. Pa. Feb. 25, 2013), ECF No. 59. The same day, February 25, 2013, the

trustee filed a motion in the Bankruptcy Court seeking to reopen McKenna’s case

pursuant to 11 U.S.C. § 350(b). See Motion to Reopen Chapter 7 Case, In re Lisa

R. McKenna, No. 8:09-bk-16886ES (Bankr. C.D. Cal. Feb. 25, 2013), ECF No. 12.

On March 25, 2013, the United States Bankruptcy Court for the Central District of

California granted the motion to reopen McKenna’s bankruptcy case. However,

even after the Bankruptcy Court reopened the case, neither McKenna nor the

trustee filed a motion or took other action to substitute the trustee into McKenna’s

discrimination suit.

      While the efforts to reopen the bankruptcy proceeding were ongoing,

defendants filed motions for summary judgment. McKenna opposed the summary

judgment motions, arguing that the District Court should grant her leave to conduct

additional discovery pursuant to Federal Rule of Civil Procedure 56(d). On April

19, 2013, the District Court ruled on the motions for summary judgment, granting




                                        4
summary judgment in favor of the defendants and denying McKenna’s request for

leave to conduct additional discovery. McKenna then brought this timely appeal.1

       Upon reviewing the record before us, we conclude that the District Court did

not err in granting summary judgment to defendants. First, for the reasons stated by

the District Court, we agree that Lockheed Martin was not McKenna’s employer

and thus cannot be liable for McKenna’s claims under Title VII, ADEA, or PHRA.

Additionally, we also agree with the District Court’s decision to grant summary

judgment to Healthease and Tecco because McKenna failed to make out a prima

facie case of either age or gender discrimination. We further agree with the District

Court that, even if McKenna had made a prima facie case to support her claims,

Healthcare and Tecco are entitled to summary judgment because McKenna failed

to demonstrate pretext.

       Additionally, after a thorough review of the record evidence, we conclude

that the District Court did not abuse its discretion in declining to grant McKenna

leave to conduct additional discovery instead of ruling on the summary judgment

motions. We agree with the District Court that McKenna offered no convincing

justification for her failure to conduct this discovery earlier in the litigation and did


1
       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. Our review of the District Court’s grant of summary judgment is
plenary. Mikula v. Allegheny Cnty. of Pa., 583 F.3d 181, 185 (3d Cir. 2009) (per curiam). We
review the District Court’s ruling on the motion for additional discovery pursuant to Rule 56(d)
for abuse of discretion. Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 310 (3d Cir.
2011).



                                               5
not explain how such additional discovery was essential to her opposition to

summary judgment. Moreover, we note that McKenna’s request—consisting of an

unsigned declaration of her counsel offering only conclusory statements that the

additional discovery was essential to her defense, see J.A. 258–61—did not

comply with the requirements of Rule 56(d). See Lunderstadt v. Colafella, 885

F.2d 66, 71 (3d Cir. 1989) (“Our case law makes clear that a [Rule 56(d)] motion

must identify with specificity what particular information is sought; how, if

uncovered, it would preclude summary judgment; and why it has not previously

been obtained.”) (emphasis added); Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir.

1989) (holding an unverified memorandum from a party’s attorney is insufficient

to satisfy the affidavit requirement of the rule); see also St. Surin v. Virgin Islands

Daily News, Inc., 21 F.3d 1309, 1313 (3d Cir. 1994) (emphasizing that our

Circuit’s case law “underscore[s] the benefits of technical compliance” with the

affidavit requirements of Rule 56(d)). Thus, it was not an abuse of discretion for

the District Court to deny McKenna’s request for additional discovery.

      Finally, we reject McKenna’s contention that the District Court abused its

discretion in not granting additional time for the trustee to file a motion to

substitute into this action. The record reveals that McKenna failed to take action to

substitute the trustee despite ample opportunity from the District Court.

Regardless,   the   District   Court’s       comprehensive,   well-reasoned    opinion




                                         6
demonstrates that because McKenna did not meet her burden of production on her

discrimination claims, her reluctance to effectuate substitution had no bearing on

the outcome of this case.

      Accordingly, we will affirm.




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