Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-17-2004

Ponczek v. Pepsi Bottling Grp
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2105




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Recommended Citation
"Ponczek v. Pepsi Bottling Grp" (2004). 2004 Decisions. Paper 701.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/701


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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 03-2105


                              FREDERICK W. PONCZEK,

                                                              Appellant
                                            v.

                               PEPSI BOTTLING GROUP
                                     ____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                          (D.C. Civ. No. 02-cv-00075J )
                District Judge: Honorable Donetta W. Ambrose
                                 ____________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 11, 2004

              Before: NYGAARD, McKEE, and WEIS, Circuit Judges.

                                  (Filed: May 17, 2004)


                                        OPINION




WEIS, Circuit Judge.

             Plaintiff was 58 years of age when he applied for employment with the

defendant company in January 2001. Twenty employees were selected from the group of

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applicants at that time, including six who were 40 years of age or older. Plaintiff alleges

that he was not hired as a result of age discrimination.

              In accordance with the defendant’s hiring process, plaintiff completed an

application and passed a written test. He was then interviewed by two management

personnel who questioned him on such matters as relevant work experience, problem

solving, learning new tasks, and whether he could engage in continuous lifting of 40-50

pounds. The interviewer rated plaintiff’s responses as “low,” a failing grade.

              After exhausting his administrative remedies, plaintiff filed suit in the

United States District Court for the Western District of Pennsylvania, alleging that

defendant violated the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

The District Court employed the familiar burden-shifting procedure outlined in

McDonnell Douglas Corp. v. Green, 

(1973), and concluded that defendant

had articulated a legitimate non-discriminatory reason for failing to hire plaintiff and that

plaintiff then failed to show pretext. Accordingly, the court entered summary judgment

for defendant.

              On appeal, plaintiff contends that the District Court improperly resolved a

material issue of controverted fact by failing to view the facts in the light most favorable

to the non-moving party. He relies on the affidavit of his 22-year-old son Jason, who

applied at the same time and who was hired. We observe, however, that the affidavit

establishes nothing other than the fact that a younger individual, capable of continuously



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lifting products weighing 40-50 pounds from an assembly line during a working day, was

a good candidate for employment. In contrast, plaintiff was dubious during his interview

as to whether he could engage in continuous lifting of 40-50 pounds.

              The District Court did not err in concluding that the plaintiff’s evidence

failed to discredit the defendant’s proffered reasons for failing to hire him. We have

reviewed the District Court’s thorough opinion and, essentially for the reasons stated

there, conclude that the summary judgment must be affirmed.




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