Richard Carey v. Fed Express Corp

519 F. App'x 772
CourtCourt of Appeals for the Third Circuit
DecidedMarch 20, 2013
Docket11-3898
StatusUnpublished

This text of 519 F. App'x 772 (Richard Carey v. Fed Express Corp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard Carey v. Fed Express Corp, 519 F. App'x 772 (3d Cir. 2013).

Opinion

*774 OPINION

PER CURIAM.

Richard Carey appeals pro se from the District Court’s orders granting summary judgment in favor of the defendant and denying Carey’s related motions, including his motion for reconsideration. We will affirm.

I.

Richard Carey, a Caucasian male, was employed by Federal Express Corporation (“FedEx”), for approximately twenty-three years. In December 2008, Carey was accused of violating the company’s Reduced Rate Shipping and FedEx Office Discount policy, which prohibited FedEx employees from using their discounted shipping rate for any business or commercial enterprise. Discipline for violating the policy included the possibility of termination. An internal FedEx investigation revealed that, over the course of twenty-one months, Carey’s discounted shipping number was used to make 382 commercial shipments. He was subsequently terminated in January 2009, at the age of fifty-three.

In a complaint filed pro se with the District Court, Carey alleged that he was fired on the basis of his age and race in violation of both the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Although he admitted using his employee rate to send a few packages for a commercial enterprise, he asserted that he was unaware of the vast majority of the shipments made from his account. Moreover, he claimed that non-Caucasian FedEx employees committed similar violations but were not terminated. He also alleged that he was replaced by two younger employees who were paid a lower wage than he was at the time he was terminated.

FedEx moved for summary judgment, arguing that Carey: (1) did not provide any evidence to establish a prima facie case of age or race discrimination; (2) was actually fired for violating the company’s reduced rate shipping policy; and (3) did not put forth admissible evidence that would cast doubt on the company’s legitimate, nondiscriminatory reason for terminating him. Carey’s opposition to summary judgment contained many of the same assertions as his Equal Employment Opportunity Commission complaint, but included two exhibits that documented the existence of a possible comparator.

After the Magistrate Judge entered the Final Pretrial Order (and after Carey filed his opposition to summary judgment), Carey moved the court for additional discovery to obtain evidence relating to two particular FedEx employees who Carey believed violated the reduced rate shipping policy. The court granted Carey’s request to amend the Final Pretrial Order to add the names of witnesses with knowledge about the two particular employees, but denied his request for additional discovery. However, the District Court docket does not reflect whether Carey actually submitted an amended list for the Final Pretrial Order.

In its opinion and order granting summary judgment in favor of FedEx, the District Court reasoned that Carey failed to demonstrate either: (1) a prima facie case of race- or age-based discrimination; or (2) facts giving rise to an inference that FedEx’s proffered reason for terminating Carey was pretext. The District Court subsequently denied Carey’s motion for reconsideration. Carey now appeals.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review over the District Court’s decision granting *775 summary judgment. See Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir.2007). Summary judgment is appropriate when the movant demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). We review the denial of a motion for reconsideration for abuse of discretion. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir.2010). We may affirm the District Court on any grounds supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.2000). For the following reasons, we will affirm.

A. ADEA claim

Summary judgment was warranted on Carey’s ADEA claim, which is governed by the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Smith v. City of Allentown; 589 F.3d 684, 689 (3d Cir.2009). “When the plaintiff alleges unlawful discharge based on age, the prima facie case requires proof that (i) the plaintiff was a member of the protected class, i.e., was 40 years of age or older, (ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified for the job, and (iv) that the plaintiff was replaced by a sufficiently younger person to create an inference of age discrimination.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (en banc) (citations omitted). Once a plaintiff makes out a prima facie case, “[t]he burden of production ... shifts to the [employer], who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the discharge.” Id. If the employer satisfies that burden, the plaintiff can overcome summary judgment with evidence “that the employer’s proffered rationale was a pretext for age discrimination.” Smith, 589 F.3d at 690.

There is no dispute that Carey established the first three elements of a pri-ma facie ADEA claim, but he did not provide admissible evidence that he was replaced by younger employees. After FedEx filed its reply to Carey’s brief in opposition to summary judgment, but before the court granted summary judgment, Carey submitted a letter to the court requesting additional time for discovery. However, Carey did not provide specified reasons for his failure to present facts regarding the age of the employees who replaced him, nor was his request to the court styled as a declaration or affidavit. See Fed.R.Civ.P. 56(d); see Dowling v. City of Phila., 855 F.2d 136, 140 (3d Cir.1988) (“[F]iling an affidavit is necessary for the preservation of a Rule [56(d)) contention that summary judgment should be delayed pending further discovery.”) (citations omitted).

Moreover, although the District Court gave Carey additional time to add witnesses to the Final Pretrial Order, Carey nonetheless failed to provide evidence regarding his replacements.

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Related

McDonnell Douglas Corp. v. Green
411 U.S. 792 (Supreme Court, 1973)
Gross v. FBL Financial Services, Inc.
557 U.S. 167 (Supreme Court, 2009)
Kosereis v. Department for
331 F.3d 207 (First Circuit, 2003)
Nicini v. Morra
212 F.3d 798 (Third Circuit, 2000)
Stanley Johnson v. The Kroger Company
319 F.3d 858 (Sixth Circuit, 2003)
Alcoa, Inc. v. United States
509 F.3d 173 (Third Circuit, 2007)
Lazaridis v. Wehmer
591 F.3d 666 (Third Circuit, 2010)
Smith v. City of Allentown
589 F.3d 684 (Third Circuit, 2009)

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519 F. App'x 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-carey-v-fed-express-corp-ca3-2013.