Filed: Dec. 27, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-27-2006 Abraham v. Abington Friends Sch Precedential or Non-Precedential: Non-Precedential Docket No. 05-4629 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Abraham v. Abington Friends Sch" (2006). 2006 Decisions. Paper 17. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/17 This decision is brought to you for free and open access b
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 12-27-2006 Abraham v. Abington Friends Sch Precedential or Non-Precedential: Non-Precedential Docket No. 05-4629 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Abraham v. Abington Friends Sch" (2006). 2006 Decisions. Paper 17. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/17 This decision is brought to you for free and open access by..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-27-2006
Abraham v. Abington Friends Sch
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4629
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Abraham v. Abington Friends Sch" (2006). 2006 Decisions. Paper 17.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/17
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4629
ELMER ABRAHAM,
Appellant
v.
ABINGTON FRIENDS SCHOOL
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 04-cv-4232
(Honorable Legrome D. Davis)
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 22, 2006
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: December 27, 2006 )
OPINION OF THE COURT
PER CURIAM.
Elmer Abraham appeals the order of the United States District Court for the
Eastern District of Pennsylvania granting summary judgment in favor of the defendant,
Abington Friends School. We will affirm the District Court’s order.
I.
In July 2000 Abraham was hired by the Abington Friends School as a custodian.
In September 2004 Abraham filed a complaint against the School alleging age
discrimination. According to his complaint, over a period beginning sometime in 2001,
Abraham was 1) harassed and criticized by his supervisor because of his age, 2) unfairly
sent home and docked pay on two occasions, 3) denied overtime opportunities that went
to younger employees, 4) removed from extra work as a security guard, 5) transferred to a
less desirable shift, and 6) laid off with others on his new shift. Abraham contends that
these actions amounted to discrimination in violation of the federal Age Discrimination in
Employment Act (29 U.S.C. § 621) and its state counterpart, the Pennsylvania Human
Relations Act. Abraham also claims that he was retaliated against for submitting two
complaints to the school and filing an EEOC complaint. Finally, Abraham alleges that
the harassment he experienced caused a hostile work environment.1
The parties engaged in discovery and both Abraham and the defendants filed
motions for summary judgment. In September 2005, the District Court granted
Abington’s motion for summary judgment, denying Abraham’s motion as moot.
Abraham now appeals.
1
Abraham litigates this matter pro se before this Court. Abraham was represented by
counsel at the time the complaint was filed; approximately two months after filing the
complaint, Abraham’s counsel petitioned the court to withdraw, citing Abraham’s
repeated revocations of settlement agreement terms to which he had previously agreed,
and Abraham’s distrust of his advice as counsel. The District Court granted the motion.
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II.
This Court has jurisdiction under 28 U.S.C. § 1291, and we exercise plenary
review over the decision to grant summary judgment. See Torres v. Fauver, 292 F.3d
141, 145 (3d Cir. 2002). We must determine whether the record, when viewed in the
light most favorable to Abraham, shows that there is no genuine issue of material fact and
that the defendant was entitled to judgment as a matter of law. See id.; Fed. R. Civ. P. 56.
Under the ADEA, it is “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). To prevail, a plaintiff must show that his age actually played a role in the
employer’s decision-making process and that it had a determinative influence on the
outcome. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 141 (2000). Discrimination
under the Act is analyzed under the burden-shifting framework of McDonnell Douglas
Corp. v. Green,
411 U.S. 792 (1973). See Fasold v. Justice,
409 F.3d 178, 184 (3d Cir.
2005). A plaintiff has the initial burden of establishing a prima facie case of
discrimination, then the burden shifts to the defendant to assert a legitimate, non-
discriminatory reason for the adverse employment decision. Where the defendant gives
sufficient reason, the plaintiff must show that the reason was pretextual.
We agree with the District Court that the record shows Abington’s legitimate, non-
discriminatory reasons for its conduct in relation to Abraham. First, Abraham was not
3
singled out when he was terminated, but rather was laid off as part of the July 2004
“outsourcing” of the entire custodial department that was the result of the School’s effort
to save money. Six out of the eight employees discharged were less than 40 years old.
Second, the record reveals that Abraham lost security guard responsibilities because of an
incident where Abraham, in his capacity as a guard, closed the school’s theater before
students and teachers were finished with their activities, forcing students to wait outside
in the rain for rides home. Third, Abraham was sent home early from work as part of his
supervisor’s efforts to discipline and/or motivate him after he performed unsatisfactorily
on two occasions. The record does not support Abraham’s assertion that he was not paid
on the occasions he was sent home. Fourth, Abraham’s loss of overtime was attributable
to the regular seasonal decrease in demand for custodial overtime work due to school
being out of session during the summer months, and gym classes being held outside
(leaving the gymnasium largely unused) during early Fall. Fifth, the record shows that
the changing of Abraham’s shifts (first from night to day, then back from day to night)
was due to his marginal performance: the first was done so his supervisor could monitor
him more closely, and the second because the supervisor found he was spending too much
time overseeing Abraham. In any event, because the entire custodial staff was laid off,
the particular shift to which Abraham was assigned could not have had an impact on
whether he kept his job, as he alleges.
4
Abraham’s assertions that the legitimate reasons given by Abington are all
pretextual are not supported by the record. With the possible exception of his own
unsworn affidavit listing what facts a former co-worker would verify, Abraham points to
no testimony or documentation that would support his assertion. In addition, we agree
with the District Court’s conclusion that Abraham fails to show that any of the above
actions were taken in retaliation for his official and unofficial complaints of
discrimination.
Finally, assuming that such claims are cognizable under the ADEA, we turn to
Abraham’s hostile work environment/harassment claims. The most potentially
problematic of Abraham’s harassment allegations are five separate instances of name-
calling by Abraham’s assistant supervisor, apparently related to his age (e.g., “old head,”
“old motherf***er”), over the course of a two-year period. Of these instances, at least
two occurred during shared off-duty car rides. And, upon receiving notice of the
harassment, Abington investigated the situation and notified the supervisor in writing
about the inappropriate nature of his comments. Even assuming the truthfulness of these
allegations, Abraham fails to show the type of pervasive, severe conduct required. See
West v. Philadelphia Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995) (describing standard for
such claims); see also Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (teasing,
offhand comments, and isolated incidents do not create an environment that is sufficiently
hostile); Peterson v. Scott County,
406 F.3d 515, 524 (8th Cir. 2005) (supervisor’s regular
5
references to “old ladies” and refusal to allow employee to participate in a training
session in part due to her age is insufficient to survive summary judgment); Racicot v.
Wal-Mart Stores, Inc., 414 F.3d 675 (7th Cir. 2005) (co-workers’ statements that
employee should not be working at her age, interference with work and vacation
schedule, and teasing that she could pick up heavy shipments if she were younger is
insufficient).
We agree with the District Court that the failure of Abraham’s claims under the
ADEA dictates their failure under Pennsylvania’s Human Relations Act, as well. See
e.g., Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996).
As the defendants were entitled to judgment as a matter of law, we will affirm the
judgment of the District Court.
6
