NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 25-1613
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TIMOTHY MCLAUGHLIN,
Appellant
v.
THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 249; MARC SCOTT; KATIE SCOTT; BYRON ROLAND; DON KRAUS; MICHAEL A. CEOFFE; FRANK CONFORTI; JOSEPH ROSSI; CBS STUDIOS, INC.; TRISTAR PICTURES, INC.
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On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2:21-cv-00832)
District Judge: Honorable William S. Stickman, IV
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Submitted Under Third Circuit L.A.R. 34.1(a)
May 15, 2026
Before: SHWARTZ, MASCOTT, and McKEE, Circuit Judges
(Opinion filed: August 10, 2026)
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OPINION
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McKEE, Circuit Judge.
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.
Timothy McLaughlin appeals three District Court orders denying his claims that
his blacklisting from work as a driver on movie and television productions violated the
Labor-Management Reporting and Disclosure Act (“LMRDA”), National Labor
Relations Act (“NLRA”), Age Discrimination in Employment Act (“ADEA”), and
Pennsylvania Human Relations Act (“PHRA”).1
McLaughlin’s arguments on appeal rest on the assertions that (1) the International
Brotherhood of Teamsters, Local 249 (“the Union”) has some authority to dictate who
the production companies hire for driver positions,2 and (2) that his age compared to the
average age of drivers selected suggests age-related animus. However, the record shows
that the Union has no authority in the production companies’ decision-making process
and merely comparing McLaughlin’s age to the average age of the selected drivers
ignores the many qualified individuals, forty or older, who were chosen to fill those
positions. Additionally, McLaughlin’s arguments fail because his Amended Complaint
1 McLaughlin’s Amended Complaint contains twelve counts, the following nine of which are at issue in this appeal: Count I – LMRDA Retaliation (Against the Union); Count IV – ADEA Retaliation (Against CBS); Count V – ADEA Retaliation (Against TriStar); Count VI – ADEA Age Discrimination (Against TriStar); Count VII – ADEA Retaliation (Against the Union); Count VIII – ADEA Age Discrimination (Against the Union); Count IX – PHRA Retaliation (Against the Union); Count X – PHRA Age Discrimination (Against the Union); and Count XI – NLRA Breach of Duty of Fair Representation (Against the Union). 2 The standard collective bargaining agreement between the Union and production companies provided that the producers retain “the sole and exclusive right to hire whoever they decide and to reject any member or applicant referred by the Union.” McLaughlin v. Int’l Bhd. of Teamsters, Loc. 249, No. 2:21-CV-832, 2024 WL 4827573, at *13 (W.D. Pa. Nov. 19, 2024). The Application for Referral, which McLaughlin completed for the Union to forward to production companies, states in boldface, capitalized font “LOCAL 249 DOES NOT HAVE ANY RESPONSIBILITY FOR HIRING DECISIONS BY THE PRODUCER.” Appx. 1115 (emphasis in original).
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lacks allegations supporting an inference of discriminatory or retaliatory conduct by the
producers or the Union.
For the reasons that follow, we will affirm the District Court.3
I. CBS’s Motion to Dismiss and TriStar’s Motion to Dismiss in Part4 In dismissing McLaughlin’s claims of ADEA age retaliation against CBS Studios
Inc. and TriStar Pictures Inc., the District Court held that “McLaughlin failed to
demonstrate a causal connection between his protected activity and [the producers’]
failure to hire him as a movie driver for [their respective productions].”5 We agree.
We apply McDonnell Douglas Corp. v. Green’s6 burden-shifting framework
where, as here, there is no direct evidence of retaliation.7 Under this framework, “[a]
prima facie case of illegal retaliation requires a showing of ‘(1) protected employee
activity; (2) adverse action by the employer either after or contemporaneous with the
employee’s protected activity; and (3) a causal connection between the employee’s
3 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). We have jurisdiction to review a final order of the District Court under 28 U.S.C. § 1291. 4 We exercise plenary review over the District Court’s dismissal of McLaughlin’s claims. See Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). Dismissal is appropriate “if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that [the] plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). 5 McLaughlin v. Int’l Bhd. of Teamsters, Loc. 249, 641 F. Supp. 3d 177, 208–10 (W.D. Pa. 2022). McLaughlin’s claim of ADEA age discrimination against TriStar, discussed in Part II, survived the motion to dismiss. Id. at 211. 6 411 U.S. 792, 802–03 (1973). 7 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015).
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protected activity and the employer’s adverse action.’”8 McLaughlin did not sufficiently
allege the third element, which requires that (1) “the temporal proximity between [his
protected activity and the employers’ adverse action is] unusually suggestive,” or (2)
“any intervening antagonism by the employer, inconsistencies in the reasons the
employer gives for its adverse action, and any other evidence suggest[] that the
employer had a retaliatory animus when taking the adverse action.”9 Two and three
years passed between McLaughlin’s latest protected activity and his failure to be hired
by TriStar and CBS, respectively. While “there is no bright line rule as to what
constitutes unduly suggestive temporal proximity,” we have declined to find an
inference of causation without additional evidence for gaps of far less time between a
protected activity and adverse employment action.10
McLaughlin argues that “[b]ecause it determined that Roland[, CBS’s agent who
failed to hire McLaughlin on the CBS production,] could be liable for [his]
8 EEOC v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567–68 (3d Cir. 2002)). 9 Daniels, 776 F.3d at 196 (citation modified); McLaughlin sufficiently alleged the first two elements by pleading that CBS’s and TriStar’s respective agents knew that McLaughlin had complained and failed to hire McLaughlin as a movie driver. See McLaughlin, 641 F. Supp. at 207, 210 (concluding that McLaughlin “sufficiently pleaded that” (1) “Roland served as CBS’s agent on One Dollar and that he acted within the scope of his employment when he hired, or failed to hire, movie drivers” and (2) “Kraus and Conforti were TriStar’s agents/employees on the production of A Beautiful Day and, thus, that TriStar could be responsible for their failure to hire McLaughlin as a movie driver”). 10 LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (rejecting a three-month gap); see, e.g., Daniels, 776 F.3d at 198 (rejecting a ten-month gap); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (rejecting a five-month gap), overruled on other grounds by Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017).
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discrimination claims,” the District Court erred in dismissing his claims against CBS.11
McLaughlin argues that the Amended Complaint supported the inference that the CBS
production One Dollar was Roland’s first opportunity to retaliate against him.12
However, drawing all reasonable inferences in favor of McLaughlin,13 the allegations in
the Amended Complaint show that Roland had other earlier opportunities to retaliate
against McLaughlin before One Dollar.14
Thus, we will affirm the grant of dismissal regarding McLaughlin’s ADEA
retaliation claims against CBS and TriStar.
11 Appellant’s Opening Br. 52. Regarding McLaughlin’s identical claim against TriStar’s agents, he argues that “the legal issues overlap” and “incorporates his legal argument in support of reversing the District Court’s dismissal of his [ADEA retaliation claim] against CBS” into his argument in support of reversing the District Court’s dismissal of his ADEA retaliation claim against TriStar. Appellant’s Opening Br. 56. However, he does not develop this argument against TriStar. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is . . . not pursued in the argument section of the brief, the appellant has abandoned and waived that issue on appeal.”). Even if we were to extend his argument regarding CBS’s agent, Roland, to TriStar’s agents, Kraus and Conforti, McLaughlin cannot make out a prima facie case. 12 See Katchur v. Thomas Jefferson Univ., 354 F. Supp. 3d 655, 670 (E.D. Pa. 2019) (“[A] court may infer a causal connection if the adverse action occurs at the defendant’s first opportunity to retaliate.”). 13 See In re Horizon Healthcare Servs., Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). 14 Katchur, 354 F. Supp. 3d at 671 (rejecting plaintiff’s “first opportunity to retaliate” argument where the complaint did not so allege). Furthermore, McLaughlin’s firstopportunity argument also fails because he raised it for the first time in his opposition brief before the District Court, and we cannot consider an argument raised for the first time in a brief in opposition to a motion to dismiss when it is contradictory to the allegations in the complaint. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988).
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II. TriStar’s Summary Judgment Motion15
We also agree with the District Court’s grant of summary judgment in favor of
TriStar. The court concluded that McLaughlin did not establish a prima facie case of age
discrimination and, even assuming arguendo that McLaughlin had established a prima
facie case, McLaughlin failed to establish pretext to rebut TriStar’s explanation for not
hiring him.16
The ADEA provides that 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.”17 “To succeed on an ADEA claim, a plaintiff must establish, by a
15 “We exercise plenary review over the grant or denial of summary judgment and apply the same standard the district court should have applied.” Minarsky v. Susquehanna County, 895 F.3d 303, 309 (3d Cir. 2018). Summary judgment is appropriate “if the movant shows 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). “A factual dispute is ‘material’ if it ‘might affect the outcome of the suit under the governing law,’” Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)), and “is genuine only if the evidence at issue could permit a reasonable jury to decide in favor of the nonmoving party.” Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 345 (3d Cir. 2022). When reviewing an order granting summary judgment, we view the evidence in the light most favorable to the nonmoving party. Willis v. UPMC Child.’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015). 16 McLaughlin v. Int’l Bhd. of Teamsters, Loc. 249, No. 2:21-CV-832, 2024 WL 6997398, at *5 (W.D. Pa. Nov. 20, 2024). 17 29 U.S.C. § 623(a)(1).
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preponderance of the evidence, that age was the ‘but-for’ cause of the adverse
employment action.”18
To establish a prima facie case of age discrimination McLaughlin must establish
that: (1) he was forty years old or older; (2) he suffered an adverse employment action;
(3) he was qualified for the position; and (4) the action occurred under circumstances
that support an inference of discrimination such as filling positions with significantly
younger drivers.19 After establishing a prima facie case of discrimination, the burden
shifts to TriStar to offer a legitimate nondiscriminatory reason for its action.20 If TriStar
offers a nondiscriminatory justification for the adverse employment action, then the
burden shifts back to McLaughlin to show that this reason was pretext for
discrimination.21
The District Court correctly found that McLaughlin had not established the fourth
element of a prima facie case of discrimination under McDonnell Douglas.22
McLaughlin maintains that he was older than the average age of the drivers hired in the
initial shoot and reshoot of the TriStar production for which he was not hired.23
However, even if true, this does not establish an inference of age discrimination on this
18 Willis, 808 F.3d at 644 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)). 19 Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). 20 See id. 21 See id. 22 Because McLaughlin did not establish a prima facie case, we need not address whether McLaughlin also failed to establish pretext. 23 Appellant’s Reply Br. 20 (“To the contrary, McLaughlin (age 66 at the time) established that he was 13 years older (initial shoot) and 15 years older (reshoot) than the average age of the drivers hired.”).
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record. First, relying on the average age of the selected drivers says nothing about how
many qualified individuals, forty or older, were chosen to fill those positions. In fact, the
record shows that many of the hired drivers were forty or older, and thus that TriStar’s
agent simply chose to work with drivers he had previously worked with, irrespective of
age:
It [was] undisputed that Kraus had a group of predominately older men that he liked to work with, and that McLaughlin was not one of them. The overwhelming majority of drivers hired for A Beautiful Day were over the age of 50, and a number of hired drivers were over the age of 60.24 Additionally, this average age metric does not demonstrate that sufficiently
younger individuals were discriminatorily favored. In fact, the cases McLaughlin
proffers as support for his claims rely on individual comparisons, not age
averages, in applying the “sufficiently younger” standard.25 Because the record
lacks individual comparisons, it does not support McLaughlin’s claim of age
discrimination against TriStar. Accordingly, we will affirm the grant of summary
judgment regarding McLaughlin’s ADEA discrimination claim against TriStar.
III. The Union’s Summary Judgment Motion
McLaughlin argues that the District Court erred when it granted summary
judgment in favor of the Union. However, the District Court correctly found that “[n]o
concrete evidence has been brought forth to viably dispute the existence of a
24 McLaughlin, 2024 WL 6997398, at *6. 25 See Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999) (relying on individual comparisons); Barber v. CSX Distrib. Servs., 68 F.3d 694, 699 (3d Cir. 1995) (same); Sempier v. Johnson & Higgins, 45 F.3d 724, 730 (3d Cir. 1995) (same); Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir. 1988) (same).
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nonexclusive hiring hall.”26 Because the production companies, not the Union, control
all access to employment, the District Court correctly held that while McLaughlin met
his burden of establishing that he engaged in protected speech by publicly criticizing the
Producer’s Choice system, he failed to proffer evidence of retaliation by the Union.27
The District Court also correctly concluded that “the Union ha[d] no obligation to [refer
McLaughlin] given that it had to enact the Producer’s Choice system after a [National
Labor Relations Board] decision against it finding that a Union official violated federal
labor law by recommending certain individuals be hired on productions.”28
McLaughlin’s LMRDA retaliation and NLRA breach of duty of fair representation
claims against the Union on appeal necessarily fail as a result.29
Likewise, because the Union was not responsible for the production companies’
hiring decisions, the District Court correctly granted summary judgment for it on
McLaughlin’s ADEA age discrimination and retaliation claims for lack of an adverse
26 McLaughlin, 2024 WL 4827573, at *13. 27 In his deposition testimony, McLaughlin admitted that he had read the disclaimer on his Application for Referral, which stated in boldface, capitalized font that the Union bore no responsibility for the hiring decisions made by producers. See Appx. 295, 1115. 28 McLaughlin, 2024 WL 4827573, at *8. 29 McLaughlin has failed to adduce evidence from which a reasonable jury could find retaliation under the LMRDA, see Casumpang v. Int’l Longshoremen’s & Warehousemen’s Union, Loc. 142, 269 F.3d 1042, 1058 (9th Cir. 2001) (citing Sheet Metal Workers’ Int’l Ass’n v. Lynn, 488 U.S. 347, 354 (1989)), and his NLRA breach of the duty of fair representation claim fails because “[i]t is a fundamental axiom of federal labor law that” the duty of fair representation derives from “a union’s status as the exclusive bargaining representative of an employee,” Riley v. Letter Carriers Loc. No. 380, 668 F.2d 224, 228 (3d Cir. 1981), and the Union was not McLaughlin’s exclusive bargaining representative with respect to driving jobs under Producer’s Choice.
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action.30 His PHRA age discrimination and retaliation claims against the Union fail for
the same reason.31
IV. Conclusion For the foregoing reasons, we will affirm the District Court’s Orders granting (1)
CBS’s Motion to Dismiss and TriStar’s Motion to Dismiss in part, (2) summary
judgment in favor of TriStar, and (3) summary judgment in favor of the Union.
30 See Burton, 707 F.3d at 426; Daniels, 776 F.3d at 193. 31 See Burton, 707 F.3d at 432 (elements of age discrimination are same under ADEA and PHRA); Daniels, 776 F.3d at 192 (elements of retaliation are same under ADEA and PHRA).