Barry J. Heilman v. ALLEGHENY ENERGY SERVICE CORPORATION On Appeal from the United States District Court…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4523
_____________
BARRY J. HEILMAN,
Appellant
v.
ALLEGHENY ENERGY SERVICE CORPORATION
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-07-cv-01034
District Judge: The Honorable Terrence F. McVerry
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 27, 2009
Before: SMITH, FISHER, and STAPLETON, Circuit Judges
(Filed: November 12, 2009 )
OPINION
SMITH, Circuit Judge.
In this employment discrimination action, we are asked to review the
District Court’s grant of summary judgment against an employee after his

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employer denied his request for a transfer. The District Court held that the
employee failed to make out a prima facie case of age discrimination and, in the
alternative, that he failed to offer any evidence to discredit the employer’s non-
discriminatory reason for its decision or to show that a discriminatory reason more
likely motivated it. For the reasons that follow, we will affirm the judgment of the
District Court.
I.
Appellee Allegheny Energy Services Corporation (“Allegheny”) provides
power to residential and commercial customers in Ohio, West Virginia,
Pennsylvania, Maryland, and Virginia. Appellant Barry Heilman began his
employment with Allegheny in 1973 at the age of 19. He progressed up the ranks
and now works as a lead lineman at the Kittanning Service Center. He is a
member of Local Union No. 102 of the Utility Workers Union of America and was
at times relevant to this case over the age of 40.
On March 14, 2006, Allegheny posted two vacancies for weekend lead
lineman positions at its Arnold Service Center. The positions came with a
residency requirement: linemen and servicemen at the Arnold Service Center, just
like all linemen and servicemen at Allegheny’s locations throughout Pennsylvania,
had to live within a 30-minute drive of their service center. Because linemen and
servicemen are often called out to remedy power outages, Allegheny requires them

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The content of this meeting is not apparent from the record.1
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to live within this range to ensure a quick response when called.
Heilman resides, and at the time of his bidding resided, in Ford City,
Pennsylvania. The Arnold Service Center is located in Arnold, Pennsylvania.
Before he bid, Heilman did not time his commute, but he believed, based on his
longtime familiarity with the area, that he lived within a 30-minute drive of the
Arnold Service Center. Heilman and others bid for the positions, and he and
Michael Wright, another lead lineman from Kittanning, were awarded the
positions. Allegheny had no discretion in awarding the positions, as Heilman and
Wright were the senior-most Union members bidding. Heilman began his new
position with a 6-month probationary period, which, among other things, allows
time for a lineman or serviceman to move his residence if he resides outside the
30-minute range.
The time of Heilman’s commute became an issue at a safety meeting held
three to four months after he began at the Arnold Service Center. Two of his1
superiors, on two separate occasions, each tested the commute between Heilman’s
residence and the Arnold Service Center. They clocked the commute at 54, 40, 34,
and 33 minutes. The last was on a route suggested by Heilman. During this time,
the Local 102 Vice President also tested the commute, and he clocked it at 38
minutes. Heilman was informed that he did not meet the residency requirement

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Heilman also included two claims for retaliation, under the ADEA and PHRA. The2
District Court entered judgment against him on these claims as well, but he does not appeal that
decision.
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and that he would have to return to his lead lineman position at the Kittanning
Service Center at the end of his probationary period. Wright, who met the
residency requirement for the Arnold Service Center, was permitted to remain
there.
Heilman filed this discrimination action pursuant to the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human
Rights Act, 43 Pa. Cons. Stat. §§ 951, et seq. The District Court, having
jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, granted summary judgment
in Allegheny’s favor because it found that Heilman failed to prove a prima facie
case of discrimination. Specifically, the District Court concluded that there was
no genuine issue of material dispute and that Heilman was not qualified for the
lead lineman position at the Arnold Service Center because his residence was
more than 30 minutes away. In addition, assuming that Heilman was qualified, the
District Court found that no genuine issue of material fact remained regarding
Allegheny’s legitimate, non-discriminatory reason for transfering him back to
Kittanning, namely, the residency requirement. Heilman timely filed this appeal.
We have jurisdiction pursuant to 28 U.S.C. § 1291.2
II.

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We “exercise plenary review over the District Court’s grant of summary
judgment and apply the same standard that the District Court should have
applied.” Shuman ex rel Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d
Cir. 2005) (quotation omitted). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The facts must be viewed
in the light most favorable to the non-moving party and all reasonable inferences
from the evidence must be drawn in his favor. Conopco, Inc. v. United States, 572
F.3d 162, 165 (3d Cir. 2009).
III.
Heilman has offered no direct evidence of discrimination. In an indirect
evidence case, it has been our usual practice to 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, e.g., Wishkin v. Potter, 476 F.3d 180,
185 (3d Cir. 2007) (“We have stated that ‘the ADA, ADEA, and Title VII all serve
the same purpose. . . . . Therefore, it follows that the methods and manner of proof
under one statute should inform the standards under the others as well.’”) (quoting
Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995)). We note that
the Supreme “Court has not definitively decided whether the evidentiary

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framework of McDonnell Douglas . . . utilized in Title VII cases is appropriate in
the ADEA context.” Gross v. FBL Financial Services, Inc., 557 U.S. ___, 129 S.
Ct. 2343, 2349 n.2 (2009). However, as it has been our practice to do so, and
lacking direction from the Supreme Court, we will continue to apply the
McDonnell Douglas regime. Thus, a plaintiff must first establish a prima facie
case of discrimination. If a prima facie showing has been made, the defendant
must shoulder a burden of production to articulate a legitimate, non-discriminatory
reason for the employment decision. Ultimately, the burden of persuasion always
remains with the plaintiff to establish that the defendant’s reasons are pretextual
and that the real reason for the decision was unlawful discrimination. Donlin v.
Philips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir. 2009) (citations omitted).
To establish a prima facie case of discrimination based on Allegheny’s
transfer of Heilman back to Kittanning, he must demonstrate that he is over 40
years old, he is qualified for the position at the Arnold Service Center, he suffered
an adverse employment action, and other similarly situated individuals were
treated more favorably. Fasold v. Justice, 409 F.3d 178, 184-85 (3d Cir. 2005).
The District Court, after determining that the record established that Heilman was
not qualified for the position, did not analyze the remaining elements of a prima
facie case. Because we write only for the parties, and because we agree with the
conclusion reached by the District Court, we likewise will not address the

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remaining elements.
Heilman strongly urges on us that, in the normal course, the issue of an
employee’s qualification for a position should be resolved in the second and third
stages of the McDonnell Douglas analysis. See Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 523 (3d Cir. 1992). This will normally prevent putting
“too onerous a burden on the plaintiff in establishing a prima facie case.” Id. Of
course, Heilman is aware that “we have refused to adopt a blanket rule” to this
effect. Id. (citation omitted). The District Court ruled that the there was no
genuine issue of material fact regarding Heilman’s qualifications for a lead
lineman position at the Arnold Service Center, and he was not so qualified
because he did not meet the residency requirement. We see no error.
Heilman argues that the 30-minute requirement is not an objective
requirement but depends on many variables such as the weather and the route
taken. This is undoubtedly true, but in a counterintuitive way it works against
him. Allegheny maintained a residency requirement for its Pennsylvania
locations. This requirement was measured in minutes of driving and not, for
example, miles. We will not supplant Allegheny’s construction of this
requirement with our own. Allegheny is the employer and may apply its rules to
its workers in any fashion it sees fit, save an unlawful one. After four separate
time trials by Allegheny personnel, and a fifth by a Union representative,

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Allegheny concluded that Heilman lived outside the required range. The District
Court’s ruling that Heilman lived outside the 30-minute range is supported by the
record. Thus, Heilman was not qualified for the position and did not establish a
prima facie case of discrimination.
Assuming, arguendo, that Heilman could establish a prima facie case,
including that he is otherwise qualified for the position, Allegheny articulates
Heilman’s failure to meet the residency requirement as its legitimate, non-
discriminatory reason for its decision. Heilman raises several grounds to argue
that this reason is pretext, all of which fail. First, Ryan Moore, who is younger
than Heilman and lives more than 30 minutes from the Arnold Service Center,
nevertheless has been allowed to remain stationed there. Moore, however, is a
meter reader, not a lead lineman. Next, Keith King works at the Arnold Service
Center as a lead lineman but lives more than 30 minutes away. King’s situation
does not shed light on Allegheny’s motives because King moved there 10 years
before and was given permission by a different supervisor. That is unlike
Heilman, who was granted a transfer and given six months to relocate. Moreover,
three other younger employees, Nick Randolph, Grant Pence, and Keith Melville,
failed to meet the residency requirement and were prohibited from transferring to a
service center unless they satisfied it.
Finally, Heilman argues that Allegheny has waived the 30-minute residency

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requirement for its employees in Mt. Airy, Maryland. Allegheny counters that the
cost of living within 30 minutes of its service center there is prohibitively
expensive for its Mt. Airy employees. We are not tasked with reviewing the
reasonableness of Allegheny’s employment requirements. Ezold, 983 F.2d at 527
(citations omitted); cf. Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365
(7th Cir. 1988) (“No matter how medieval a firm’s practices, no matter how high-
handed its decisional process, no matter how mistaken the firm’s managers, the
ADEA does not interefere.”) (quotation and alteration omitted). Our only task is
to decide if Heilman introduced enough evidence to get past summary judgment
on his claim for discrimination. He did not.
To get past summary judgment, an employment discrimination plaintiff
must either present enough evidence to cast sufficient doubt on the employer’s
legitimate, non-discriminatory reason, and thereby create a genuine issue of
material fact as to it, or offer sufficient evidence to create a genuine issue of
material fact that discrimination was the real reason for the action taken. Fuentes
v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Heilman failed to introduce enough
evidence to create a genuine issue of material fact on either front. Thus, judgment
against him was appropriate, Fed. R. Civ. P. 56(c), and we will affirm the

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Judge Stapleton would assume, arguendo, the existence of a prima facie case and would3
hold that Heilman has not carried his burden of tendering evidence at the third stage of the
McDonnell Douglas analysis.
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judgment of the District Court.3

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