                                                              NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      No. 09-4496


                                  JOSEPH NOVAK,
                                                       Appellant

                                           v.

                        POSTEN TAXI INC; BILL COOK;
                  JOHN KATORKAS, Office Manager; BO KELLER


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civ. No. 3:08-cv-00912)
                     District Judge: Honorable James M. Munley


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 22, 2010

               Before:    BARRY, AMBRO and COWEN, Circuit Judges

                              (Opinion filed: July 7, 2010)




                                       OPINION


PER CURIAM

      Joseph Novak appeals the order of the United States District Court for the Middle

District of Pennsylvania (1) granting summary judgment for Defendant Posten Taxi on all
claims, and (2) dismissing all claims against Defendant John Katorkas for failure to state

a claim. For the reasons that follow, we will affirm.

                                              I.

       Because we write solely for the benefit of the parties, we will only summarize the

essential facts. Prior to his termination, Novak had worked for Posten Taxi as a part-time

taxi cab driver for approximately twelve years. In April 2005, Posten Taxi terminated

Novak after receiving a complaint from a passenger about Novak’s behavior.

       In May 2008, Novak filed this complaint in the District Court, alleging age

discrimination and retaliation, in violation of the Age Discrimination in Employment Act

(“ADEA”). Following discovery, defendant Posten Taxi moved for summary judgment

on Novak’s claims. Defendant Katorkas, office manager of Posten Taxi, moved to

dismiss Novak’s complaint pursuant to Fed. R. Civ. P. 12(b)(6). Finding that Novak was

unable to establish a prima facie case for either of his claims, the District Court granted

both defendants’ motions, dismissing Novak’s claims against Katorkas and granting

judgment in favor of the other defendants.1 In an order entered November 12, 2009, the



       1
       In his original complaint, filed in May 2008, Novak named as defendants Posten
Taxi, Bill Cook, and John T. Bow. One month later, Novak indicated that he intended to
sue John Katorkas and Bo Keller (originally misinterpreted by the Clerk’s Office as “John
T. Bow,” see Order at 13, n.7) in addition to Posten Taxi and Bill Cook. In April 2009,
the U.S. Marshals returned unserved summonses for Cook and Keller because no address
was provided. Federal Rule of Civil Procedure 4(m) provides that the District Court shall
dismiss the complaint after notice to the plaintiff if service of the complaint is not made
upon a defendant within 120 days after the filing. See Fed. R. Civ. P. 4(m). While the
Marshals Service’s failure to effectuate service on behalf of an in forma pauperis plaintiff

                                              2
District Court denied Novak’s motion for reconsideration. Novak now appeals.

                                              II.

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

plenary review over the District Court’s entry of summary judgment and dismissal for

failure to state a claim. See Torretti v. Main Line Hosps., Inc., 580 F.3d 168, 172 (3d Cir.

2009); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). In reviewing a

District Court ruling on a motion for summary judgment, we apply the same test the

District Court is to apply under Fed. R. Civ. P. 56(c). Brown v. J. Kaz, Inc., 581 F.3d

175, 179 (3d Cir. 2009). Summary judgment is appropriate only if, after the evidence

taken as a whole is construed in the light most favorable to the non-moving party, there

remains no genuine issue of material fact. Prowel v. Wise Bus. Forms, Inc., 579 F.3d

285, 286 (3d Cir. 2009). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a

complaint must contain sufficient factual matter to “state a claim to relief that is plausible

on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

facially plausible when its factual content allows the court to draw a reasonable inference




may constitute ‘good cause’ within the meaning of Rule 4(m), the plaintiff must take
“reasonable steps . . . to identify for the court the defendants named in the complaint.”
Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286-87 (11th Cir. 2009) (citing
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996); see also Young v. Quinlan, 960 F.2d
351, 359 (3d Cir. 1992), superseded by statute on other grounds as stated in Ghana v.
Holland, 226 F.3d 175, 185 (3d Cir. 2000). Because Novak failed to provide addresses to
effectuate service, the Court’s determination was proper.


                                              3
that a defendant is liable for the alleged misconduct. See Ashcroft v. Iqbal, 129 S.Ct.

1937, 1949 (2009).

                                            III.

       Novak alleges that he was terminated because he was over 40 years old, while

Posten Taxi stated that it terminated him because of his “belligerent” behavior towards a

customer in April 2005. Novak has offered no direct evidence of discrimination.2 In an

indirect evidence case, we analyze the claims under the framework set up by the Supreme

Court for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). Under McDonnell

Douglas, a plaintiff must first establish a prima facie case of discrimination. Summary

judgment may be awarded to the employer when a plaintiff fails to meet his threshold

burden of raising a genuine issue of material fact as to any element of his prima facie

case. See Geraci v. Moody-Tottrup, Int’l Inc., 82 F.3d 578, 580 (3d Cir. 1996).

       To establish a prima facie case of age discrimination, Novak must demonstrate

that: (1) he is at least 40 years old; (2) he suffered an adverse employment decision; (3) he

is qualified for the position; and (4) Posten Taxi replace him with an employee who is

sufficiently younger to permit an inference of age discrimination. Tomasso v. Boeing

Co., 445 F.3d 702, 706 n.4 (3d Cir. 2006). We agree with the District Court that Novak



       2
       Novak claims that Posten Taxi terminated him based on a mandate from their
insurance company that the company fire all older employees; however, there is no
evidence in the record, aside from his inadmissible hearsay, that such a mandate existed.

                                             4
did not establish a prima facie case, as he did not show that Posten Taxi replaced him

with a person sufficiently younger to permit an inference of age discrimination. In fact,

Novak failed to offer any evidence as to who replaced him after he was terminated.

Furthermore, assuming, arguendo, that he could establish a prima facie case, Novak failed

to cast sufficient doubt on Posten’s legitimate, non-discriminatory reason for his

termination. Novak does not dispute that he engaged in a verbal disagreement with a

customer in 2005. While he claims that Posten’s actual motive for firing him was a

mandate from its insurance company, he pointed to no evidence to support this assertion.

Because he presented no direct evidence of discrimination or evidence sufficient to

establish a prima facie case, summary judgment against Novak was appropriate. Fed. R.

Civ. P. 56(c).

       We also find that summary judgment was proper on Novak’s retaliation claim. To

establish a prima facie case of retaliation, Novak must present sufficient evidence to

establish that: (1) he was engaged in protected conduct; (2) an adverse action was taken;

and (3) there is a causal link between the protected conduct and the adverse action.

Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). Once a prima facie case

is established, the burden shifts to Posten Taxi to present a non-retaliatory explanation for

the challenged employment decision. Id. at 920 n.2; see also McDonnell Douglas, 411

U.S. at 802. There is no evidence in the record that Novak complained about age

discrimination, or in any way opposed any of Posten Taxi’s practices or policies, before



                                              5
he was terminated. See 29 U.S.C. § 623(d). In addition, Novak failed either to discount

the articulated reasons of Posten Taxi for discharging him or to provide affirmative

evidence that Posten Taxi was motivated by a retaliatory animus. See Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997). Thus, the District Court did not err in

entering summary judgment on the retaliation claim. The District Court’s dismissal of

Novak’s claims against Katorkas also was proper, as Novak alleged in his complaint only

that Katorkas did not call Novak back, despite a promise to do so, after Novak applied to

be rehired by Posten Taxi. Even if true, such an allegation does not support an

employment discrimination claim.3

                                            IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




       3
        We reject Novak’s argument that he was denied his right to a trial, as summary
judgment does not violate the Seventh Amendment right to a jury trial “so long as the
person having the right to the jury trial is an actual participant in the summary judgment
proceeding.” In re TMI Litig., 193 F.3d 613, 725 (3d Cir. 1999). Novak also asserts the
District Court denied him a right to a “speedy trial” (presumably under the Sixth
Amendment), but only criminal defendants have that right. See Austin v. United States,
509 U.S. 602, 608 (1993).

                                             6
