                                                    NOT PRECEDENTIAL
                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 13-3270
                                   _____________

                              EDWARD O’CONNELL,

                                           Appellant

                                          v.

                       ASSOCIATED WHOLESALERS, INC.
                              _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 12-cv-02540)
                      District Judge: Hon. James Knoll Gardner
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 6, 2014

               Before: AMBRO, JORDAN and ROTH, Circuit Judges.

                               (Filed: March 10, 2014)
                                  _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.

      Edward O’Connell appeals the grant of summary judgment in favor of his former

employer, Associated Wholesalers, Inc. (“AWI”), for age discrimination claims he

brought under the Age Discrimination in Employment Act of 1967, as amended (the
“ADEA”), 29 U.S.C. §§ 630, et seq., and the Pennsylvania Human Relations Act (the

“PHRA”), 43 Pa. Cons. Stat. § 951 et seq. For the reasons that follow, we will affirm.

I.     Background1

       O’Connell was hired in January 1996 by AWI, a wholesale distributor of food and

grocery-related products, and worked for the company until his termination in 2010. He

was 44 years old when he was hired and began to work as a Category Management

Director for AWI’s “Center Store,” a job he held until early 2008.2 In April 2008, Bernie

Ellis, the President of AWI, implemented a reorganization which included making

O’Connell the Director of Procurement and Private Brands. This was not a promotion

and did not change his salary. Around the same time his job changed, O’Connell began

reporting to Wilford B. Donovan III, the Vice President of Center Store. In his new

position, O’Connell oversaw the Center Store inventory, which included responsibilities

to supervise the procurement of products, eliminate overstock products, and develop

marketing strategies.

       O’Connell felt that Donovan became “increasingly critical” of his job performance

soon after the reorganization. (App. at 122.) According to O’Connell, he received

criticism for incidents that were blown out of proportion or were unfairly recorded, which

led him to think that he was being targeted for termination based on his age.



       1
        Consistent with our standard of review, see infra note 8, we view the facts in the
light most favorable to the non-movant, O’Connell.
       2
        “Center Store” refers to AWI’s dairy, frozen, grocery, health, and beauty
products departments.

                                            2
       In January 2010, Donovan asked O’Connell “out of the blue” when he was going

to retire. (App. at 124.) That was the only instance in which Donovan asked O’Connell

about retirement.3 Around the same time, AWI hired Dennis Kreitz, who was in his 30s,

as a Category Manager of the Center Store. Donovan asked O’Connell to train Kreitz on

duties that O’Connell had taken over from a recently resigned Category Manager and for

which O’Connell did not receive any increase in salary. O’Connell trained Kreitz for

approximately the next six months until O’Connell was terminated. As a consequence,

“[e]verything … Kreitz was responsible for at the time of [O’Connell’s] termination

came off [O’Connell’s] desk.”4 (App. at 128.)

       O’Connell was terminated on July 19, 2010, at the age of 58. A written notice

addressed to O’Connell on that date stated that his “position as Director, Procurement and

Private Brands [wa]s being eliminated.” (App. at 165.) O’Connell testified at his

deposition that he had “no idea what Kreitz did after [his] termination” and that he did

not know who took over his responsibilities. (App. at 129.)

       Between July 2009 and December 2010, Donovan terminated two additional

employees who were 40 years old or older and hired at least three manager- or director-




       3
        When asked at his deposition whether there were “[a]ny other comments or
conversation[s] that would lead [him] to believe age was a factor” in his termination,
O’Connell testified that Donovan made two hostile comments in April 2009 and April
2010 about a business-related dispute and a special project, respectively. On their face,
these comments were unrelated to age.
       4
           Kreitz left AWI around April 2011.

                                                3
level employees who were younger than O’Connell.5 In addition, AWI hired a 60-year-

old individual for a new director-level position nine months after O’Connell left.

Overall, between July 2009 and December 2010, AWI hired 43 new employees and

terminated 75 employees at the AWI facility where O’Connell worked.6

       O’Connell testified that, even before being terminated, he believed that he was

being targeted based on his age but did not raise any complaints or concerns at the time

because he “felt intimidated to do so.” (App. at 118.) On December 5, 2010, several

months after his termination, O’Connell sent Audrey Schein, AWI’s Vice President of

Human Resources, a letter stating that, “upon reflection, I feel that my age was the

primary reason for termination of my employment.” (App. at 206.) In response, Schein

wrote that “age was not a factor” in AWI’s decision to terminate O’Connell but that

       [d]eclining sales required a close examination of the allocation of resources
       necessary to accomplish the goals and objectives of [AWI]. As a result,
       functional areas and departments were restructured to achieve greater
       efficiency, reduce expenses and increase customer focus and service levels.
       Some positions throughout [AWI] were eliminated and, unfortunately, your
       position was one of them.

       The decision to eliminate a position was based on the position itself not on
       who held the position.

(App. at 207.)

       O’Connell subsequently filed a charge of discrimination with the United States

Equal Employment Opportunity Commission (“EEOC”), alleging that AWI terminated

       5
        There is no indication that any of these employees took over any of O’Connell’s
responsibilities.
       6
        O’Connell does not dispute that the relevant time frame for this case includes
July 2009 through December 2010.

                                             4
his employment in violation of the ADEA. He also filed a charge with the Pennsylvania

Human Relations Commission, alleging a violation of the PHRA. O’Connell brought this

discrimination suit in the United States District Court for the Eastern District of

Pennsylvania after the EEOC issued a right-to-sue letter.7 Following the District Court’s

grant of summary judgment in favor of AWI, O’Connell timely filed this appeal.

II.    Discussion8

       Under the ADEA and PHRA, an employer is prohibited from discharging an

individual because of the individual’s age.9 When claims under the ADEA and PHRA


       7
         AWI does not dispute that O’Connell met the procedural prerequisites to file the
instant action.
       8
         The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the grant of summary judgment de novo,
applying the same standard as the district court. Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 691 F.3d 294, 300 (3d Cir. 2012). “Summary judgment should only be granted if
‘there is no genuine dispute as to any material fact.’” Id. (quoting Fed. R. Civ. P. 56(a)).
“In considering the record, we must draw all reasonable inferences in favor of the non-
moving party … .” Id.
        We exercise plenary review of a district court’s authority under the Federal Rules
of Civil Procedure and its interpretation of those rules. Lassiter v. City of Phila., 716
F.3d 53, 54 n.1 (3d Cir. 2013); EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 264 (3d
Cir. 2010).
       9
         The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer
… to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s age.” 29 U.S.C. § 623(a)(1). The PHRA provides, in relevant part:
       It shall be an unlawful discriminatory practice … [f]or any employer
       because of the … age … of any individual … to discharge from
       employment such individual … or to otherwise discriminate against such
       individual … with respect to compensation, hire, tenure, terms, conditions
       or privileges of employment … if the individual … is the best able and
       most competent to perform the services required.
43 Pa. Cons. Stat. § 955(a).

                                              5
are based on indirect and circumstantial evidence, as they are here, the burden-shifting

framework set forth in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973),

applies. Tomasso v. Boeing Co., 445 F.3d 702, 704-05 (3d Cir. 2006). Under the

McDonnell Douglas framework, a plaintiff must first establish a prima facie case of

discrimination. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).

If the plaintiff succeeds, the defendant must articulate a legitimate, non-discriminatory

reason for the adverse employment action. Id. The burden of going forward with the

evidence then shifts back to plaintiff to prove, by a preponderance of the evidence, that

the articulated reason was a mere pretext for discrimination. Id.

       AWI primarily asserts that O’Connell was terminated because his position was

eliminated during budget cuts and restructuring. O’Connell does not dispute that AWI

articulated a non-discriminatory reason to terminate his employment.10 He does,

however, contend that the proffered reason was a mere pretext.

       The District Court granted summary judgment to AWI on the grounds that

O’Connell had not established a prima facie case of age discrimination or, alternatively,

that O’Connell had not shown that AWI’s rationale for terminating his employment was

       10
         The District Court treated this case as a reduction-in-force (“RIF”) case, which
O’Connell argues was erroneous. A RIF case is one in which the employer’s decision is
“motivated on a programmatic level by economic concerns.” Tomasso v. Boeing Co.,
445 F.3d 702, 707 (3d Cir. 2006). We apply the McDonnell Douglas framework
regardless. Id. However, in a RIF case, one of the elements of the prima facie case –
whether the employee was replaced by a sufficiently younger person to create an
inference of age discrimination – “becomes whether the employer retained employees
who do not belong to the protected class.” Id. at 706 n.4. We assume that O’Connell has
made out a prima facie case, and the RIF distinction is immaterial to our pretext analysis
here.

                                             6
pretextual. We agree that, even assuming arguendo that O’Connell had carried his

burden of demonstrating a prima facie case of age discrimination, no reasonable

factfinder could find pretext. Therefore, we will not address the prima facie case and will

affirm on the basis that O’Connell has not met his burden of showing pretext under the

McDonnell Douglas framework.

       The District Court relied on O’Connell’s failure to file a statement in opposition to

AWI’s statement of undisputed facts to find that AWI’s proffered rationale for

terminating O’Connell was not in dispute. Specifically, the Court adopted, as matters of

undisputed fact, that AWI had to restructure its business in order to weather an ongoing

recession; that personnel duties were realigned to increase efficiency and decrease

redundancy; and that elimination of O’Connell’s position was a part of those goals.

Under those facts, the Court held that “no reasonable factfinder could conclude that the

legitimate nondiscriminatory reason provided by [AWI] for laying off [O’Connell] was

mere pretext.” (App. at 53.)

       O’Connell acknowledges that he failed to file a separate statement of undisputed

facts in the manner required by the Court’s Rule 16 status conference order. He argues,

however, that the District Court improperly adopted AWI’s statement of undisputed facts

because nothing “in the Federal Rules of Civil Procedures, the Local Rules of Civil

Procedure, or even [the District Judge’s] own procedures found on the Court website”

alludes to any requirement of a separate statement of undisputed facts. (Appellant’s

Opening Br. at 33.)



                                             7
       While O’Connell is correct that no rules or procedures mandated the filing of a

responsive statement of undisputed facts, the “contention that the District Court could not

act in the conceded absence of any local rule … is obviously unsound.” Eash v. Riggins

Trucking Inc., 757 F.2d 557, 569 (3d Cir. 1985) (en banc) (quoting Link v. Wabash R.R.

Co., 370 U.S. 626, 633 n.8 (1962)) (internal quotation marks omitted). Federal Rule of

Civil Procedure 83(b) expressly provides:

       A judge may regulate practice in any manner consistent with federal law,
       rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district’s local
       rules.    No sanction or other disadvantage may be imposed for
       noncompliance with any requirement not in federal law, federal rules, or the
       local rules unless the alleged violator has been furnished in the particular
       case with actual notice of the requirement.

Fed. R. Civ. P. 83(b).

       Here, the requirement to file a separate statement responsive to AWI’s statement

of undisputed facts was consistent with Federal Rule of Civil Procedure 56(c), which

provides, in relevant part: “A party asserting that a fact cannot be or is genuinely disputed

must support the assertion by … citing to particular parts of materials in the record … or

… showing that the materials cited do not establish the absence or presence of a genuine

dispute … .” Fed. R. Civ. P. 56(c)(1). Moreover, the requirement for O’Connell to file a

separate statement of undisputed facts – and the consequences for not doing so – were

explicitly set forth in the Court’s Rule 16 status conference order dated October 26, 2012:

       [A]ny party opposing a motion for summary judgment or partial summary
       judgment shall file and serve, in addition to a brief, a separate short concise
       statement, responding in numbered paragraphs to the moving party’s
       statement of the material facts about which the opposing party contends
       there is a genuine dispute, with specific citations to the record, and, where
       practicable, attach copies of the relevant portions of the record. All factual

                                             8
       assertions set forth in the moving party’s statement shall be deemed
       admitted unless specifically denied by the opposing party in the manner set
       forth in this paragraph.

(Dkt. 15 at 3 (emphasis added).) As this constituted actual notice, the District Court

acted pursuant to Rule 83(b) and within its discretion to secure the just and prompt

disposition of cases.11

       Even if the Court had improperly adopted AWI’s statement of undisputed facts,

we would still affirm the summary judgment order because, based on the evidence of

record, no reasonable factfinder could conclude that AWI’s rationale was pretextual. To

survive summary judgment in a discrimination case when the defendant has answered the

plaintiff’s prima facie case with legitimate, non-discriminatory reasons for its action, “the

plaintiff must point to some evidence, direct or circumstantial, from which a factfinder

could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or

(2) believe that an invidious discriminatory reason was more likely than not a motivating

or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764

(3d Cir. 1994). To do so, the plaintiff must show “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

reasons for its action that a reasonable factfinder could rationally find them unworthy of

credence.” Id. at 765 (internal quotation marks omitted). O’Connell has not carried his

burden in that regard.



       11
          We also note that O’Connell does not offer any justification for his failure to
comply with the Court’s order. Nor did he attempt to remedy it, even after AWI raised
the issue.

                                              9
       He takes the position that AWI’s non-discriminatory rationale for terminating him

is “highly doubtful” (Appellant’s Opening Br. at 31) and, “at best, a disputed issue”

(Appellant’s Reply Br. at 10) because the evidence demonstrates AWI’s age-based

animus towards him. He posits several reasons a factfinder might disbelieve AWI or

believe that AWI was motivated by an invidious discriminatory reason: Donovan’s

alleged age-based animus against him, the circumstances of Kreitz’s hiring and training,

and the hiring patterns of Donovan and AWI in the relevant time period.

       O’Connell argues that Donovan made several comments evidencing age-based

animus toward him, but the only age-related remark Donovan allegedly made was “when

are you going to retire.” (App. at 124.) We have held that “[s]tray remarks by non-

decisionmakers or by decisionmakers unrelated to the decision process are rarely given

great weight, particularly if they were made temporally remote from the date of

decision.” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.

1992). While it is unclear to what extent Donovan took part in the decision to terminate

O’Connell, there is no evidence that his question about retirement was related to

O’Connell’s termination. Combined with the temporal distance from O’Connell’s

termination – approximately seven months – it deserves no significant weight.12

O’Connell spends significant effort painting a picture of his “unblemished career in

grocery marketing” before he started reporting to Donovan (Appellant’s Opening Br. at



       12
          O’Connell’s assertion that Donovan made two other work-related comments
that led him to believe that he was being targeted because of his age reflects nothing more
than speculation.

                                            10
18), and asserting that Donovan “subjected [him] to unwarranted and unprecedented

criticism of his job performance” (id. at 7-8). That, however, is an assertion unsupported

by the record. O’Connell testified at deposition regarding prior criticism that he had

received, such as a 2007 performance review, and does not dispute that he received

subsequent criticism for incidents in which he raised his voice or pointed his finger in the

face of another employee. O’Connell provides no meaningful connection between

Donovan’s criticism and age-based animus beyond mere speculation or conclusive

assertions that he was being targeted for his age.

       Meanwhile, O’Connell’s argument that he was at least partially replaced by a

younger employee – Kreitz – ignores a key fact. There is no dispute that the

responsibilities that Kreitz assumed were previously the responsibilities of a Category

Manager who had resigned. The duties were assigned to O’Connell, without extra

compensation, before Kreitz was hired to take over those responsibilities. At most,

Kreitz inherited responsibilities that were temporarily assigned to O’Connell and that

were not part of O’Connell’s core duties. O’Connell admitted at his deposition that he

did not know how his duties were assigned after his termination to Kreitz or otherwise.

Furthermore, his argument that other, younger managers or directors besides Kreitz might

have taken over his responsibilities also amounts to mere speculation and is contradicted

by Schein’s testimony that an Account Manager for AWI’s broker – not any AWI

employee – is performing O’Connell’s old job responsibilities.

       O’Connell draws attention to evidence that three other managers or directors who

were hired between July 2009 and December 2010 to work under Donovan were younger

                                             11
than himself and that AWI hired 43 new employees “in a time of supposed austerity and

cost-cutting.” (Appellant’s Opening Br. at 27.) However, O’Connell overlooks the

undisputed evidence in the record that, in the same time period, AWI also terminated 75

employees at the plant where O’Connell worked, resulting in a net decrease in its work

force. AWI asserts that, of the 43 new employees hired, 17 were 40 years old or older,

and of the 75 employees terminated, 30 were under the age of 40.13 O’Connell does not

dispute those numbers. The undisputed evidence does not demonstrate the age-based

animus that O’Connell tries to distill from it.14

       Therefore, even if one were to ignore the failure of O’Connell’s to file a response

to AWI’s statement of undisputed facts, he has not pointed to sufficient evidence in the

record to allow a reasonable factfinder either to disbelieve AWI’s articulated reasons for

terminating him or to believe that an age-based animus was more likely than not a

       13
          Insofar as O’Connell focuses specifically on individuals hired and terminated
within Donovan’s division, he glosses over the fact that AWI also hired a 45-year-old
individual in August 2010 and a 60-year-old individual in spring of 2011 to work under
Donovan’s supervision. Even if the hiring of some under-40 individuals created a net
influx of younger employees working for Donovan, that fact, considered with the rest of
the evidence, does not cast sufficient doubt on AWI’s non-discriminatory reasons for
terminating O’Connell to overcome summary judgment.
       14
          O’Connell points out that AWI did not consider “offering [him] continued
employment or a position at a reduced salary.” (Appellant’s Opening Br. at 26.) He
argues that this undermines AWI’s purported “cost-cutting regimen.” (Id.) However,
AWI explained that its elimination of O’Connell’s position was the result of not only
cost-cutting, but also efforts to restructure the company in order to eliminate
redundancies and increase efficiency – reasons consistent with a decision not to consider
retaining O’Connell at a lower salary. And to the extent O’Connell is arguing that he
should have been retained over younger or less experienced employees, we have rejected
the argument that the law requires “the ‘bumping’ of lower-level sufficiently younger
employees in order to retain protected workers.” Monaco v. Am. Gen. Assurance Co.,
359 F.3d 296, 306 n.13 (3d Cir. 2004).

                                              12
motivating or determinative cause of AWI’s action. Accordingly, he has not

demonstrated that AWI’s non-discriminatory reasons for terminating him were mere

pretext.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s order granting

summary judgment in favor of AWI and against O’Connell.




                                            13
