Alma Milby v. Greater Philadelphia Health Action

Honorable Nora Barry Fischer, United States District Judge for the Western District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2865
ALMA MILBY
Appellant
v.
GREATER PHILADELPHIA HEALTH ACTION; CYNTHIA WILLIAMS
FORDHAM; LINDA POWELL, DR.
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-06-cv-4556)
District Judge: Bruce W. Kauffman
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2009
Before: AMBRO and ROTH, Circuit Judges and FISCHER , District Judge*
(Opinion filed: July 27, 2009)
OPINION

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The District Court had jurisdiction over Milby’s claims under 28 U.S.C. §§ 1331,1
1367. We have jurisdiction under 28 U.S.C. § 1291.
Unless otherwise noted, the factual matter contained in this opinion is undisputed.2
2
FISCHER, District Judge
Alma Milby contends that defendants Greater Philadelphia Health Action
(“GPHA”), the Honorable Cynthia Williams Fordham, and Dr. Linda Powell,
discriminated against her on the basis of age, in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania Human
Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq. She appeals the District Court’s
grant of summary judgment in favor of defendants. We will affirm.1
I.
Because we write only for the parties, we will recite only those facts necessary to
our disposition. This dispute concerns GPHA’s decision to not hire Milby as its Board2
Assistant. During the summer and fall of 2005, GPHA interviewed four candidates to fill
the vacant position. On November 9, 2005, GPHA hired Yvonne Mapp, a thirty-five-year-
old woman, instead of Milby, who was fifty-seven years-old at the time. Milby alleges
that defendants did not hire her because of her age.
II.
To succeed on the disparate-treatment claims Milby has asserted under the ADEA
and PHRA, she “must prove by a preponderance of the evidence . . . that age was the ‘but-

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“The same legal standard applies to both the ADEA and the PHRA and therefore it is3
proper to address them collectively.” Kautz v. Met-Pro Corp., 412 F.3d 463, 466 n.1 (3d
Cir. 2005).
See McDonnell Douglas Co. v. Green, 411 U.S. 792 (1973).4
Although defendants disagree with that ruling, they do not challenge it.5
3
for’ cause of” defendants’ decision to not hire her. Gross v. FBL Fin. Servs., Inc., No.3
08-441, 2009 WL 1685684, at *7 (U.S. June 18, 2009). In examining whether Milby’s
claims could survive defendants’ summary judgment motion, the District Court applied the
familiar McDonnell Douglas framework. Milby does not dispute the propriety of that4
decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(analyzing an ADEA claim under the McDonnell Douglas framework when the parties
agreed that applying the framework was proper); cf. Gross, 2009 WL 1685684, at *6
(citing Reeves as a decision in which the burden of proving “but-for” causation by a
preponderance of the evidence was placed on the plaintiff).
Under the McDonnell Douglas framework,
an employee must first establish a prima facie case of discrimination, after
which the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its adverse employment decision. If the
employer articulates one or more such reasons, the aggrieved employee must
then proffer evidence that is sufficient to allow a reasonable finder of fact to
find by a preponderance of the evidence that the employer’s proffered
reasons are false or pretextual.
Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005) (internal citations omitted). The
District Court found that Milby established a prima facie case of age discrimination.5

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4
After examining the evidence the parties set forth on the issue of defendants’ alleged
legitimate, nondiscriminatory reasons for not hiring Milby, the Court concluded that Milby
failed to demonstrate the existence of a genuine issue of material fact as to whether
defendants engaged in proscribed age discrimination. Consequently, the Court granted
summary judgment in favor of defendants.
III.
We apply de novo review to the District Court’s grant of summary judgment.
Tomasso v. Boeing Co., 445 F.3d 702, 705 n.3 (3d Cir. 2006). As such, “we must view the
underlying facts and all reasonable inferences therefrom in the light most favorable to the
party opposing the motion.” Fasold, 409 F.3d at 180 (quoting Pa. Coal Ass’n v. Babbitt,
63 F.3d 231, 236 (3d Cir. 1995)) (internal quotation mark omitted). To survive a summary
judgment motion under the circumstances presented in this case, Milby must “either (i)
discredit[] the proffered reasons [for the adverse employment action], either
circumstantially or directly, or (ii) adduc[e] evidence, whether circumstantial or direct, that
discrimination was more likely than not a motivating or determinative cause of the adverse
employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis
omitted).
Milby contends that she has set forth evidence that satisfies both prongs of this
standard. First, she argues that she has sufficiently demonstrated that defendants’ asserted
reasons for not hiring her are false or pretextual. To make such a showing, Milby was

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5
required “to present evidence contradicting the core facts put forward by the employer as
the legitimate reasons for its decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d
Cir. 2005). We find that Milby has not introduced evidence that casts doubt upon
defendants’ “core” assertions that they hired Mapp instead of Milby because Mapp
possessed an associate’s degree and a history of long-term employment.
Milby also alleges that the District Court ignored direct evidence of the defendants’
discriminatory animus in choosing not to hire her. We have reviewed the record and
conclude that Milby has not adduced evidence, direct or circumstantial, as to
discriminatory animus on the part of defendants in not hiring her that is sufficient to
withstand defendants’ summary judgment motion.
IV.
In sum, we find that Milby failed to demonstrate that a genuine issue of material
fact exists as to whether her age was the “but-for” cause of defendants’ decision to not hire
her. Accordingly, we will affirm the District Court’s order granting summary judgment in
favor of defendants.

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