PHILADELPHIA – A panel of appellate judges has ruled a woman’s Pennsylvania Human Relations Act (PHRA) complaint of age and sex discrimination against her former employer did not pass the legal standard needed to prove such claims.

On Feb. 15, judges Theodore A. McKee, Marjorie O. Rendell and Julio M. Fuentes ruled to affirm the ruling of summary judgment granted by the U.S. District Court for the Middle District of Pennsylvania, in favor of defendant Musculoskeletal Transplant Foundation, Inc. and against plaintiff Jacqueline Alinoski. Rendell authored the Court’s opinion in this matter.

Rendell explained and sex discrimination is prohibited under the PHRA, and if a PHRA claim is based on indirect evidence, it is subject to the McDonnell Douglas test, the first prong of which requires a plaintiff “establish a prima facie case of discrimination, which, if successful, raises an inference of discrimination…[that shows] similarly situated persons outside the relevant protected class were treated more favorably than he or she.”

“As the District Court observed with regard to the age claim, “employees both within and outside of [plaintiff]’s class were treated more and less favorably than [plaintiff].” Specifically, two employees who are older than plaintiff, in addition to two employees who are younger than plaintiff, were treated more favorably than plaintiff; two different younger employees were treated less favorably than she. The record shows that the employees treated more favorably, older and younger, were not similarly situated to plaintiff because of their differing levels on MTF’s 4 progressive discipline program,” Rendell said.

However, Rendell said Alinoski responded, without any supporting case law, that “similarly situated employees that may have also received more favorable treatment within the protected class doesn’t necessarily negate that age may have been the motivating factor”, and never addresses the largest hole in her case: “the less favorable treatment of employees outside her protected class.”

Rendell explained that did not appear to the Court that MTF’s treatment of Alinoski had anything to do with her age and MTF’s comparative treatment of its employees fails to raise an inference of age-based discrimination, adding Alinoski’s sex discrimination claim fares no better.

“We agree with the District Court that the examples of harassment raised by plaintiff do not evince ‘any discriminatory animus based upon [plaintiff’s] gender’ and therefore do not give rise to an inference of discrimination. Plaintiff does not offer – nor do we find – a requisite connection between plaintiff’s sex and her being accused of acting ‘like a victim’ or having a ‘brain meltdown.’ However puerile or offensive they may be, those comments are not inherently related to being male or female,” Rendell said.

“Because we find the plaintiff has not satisfied her threshold burden of production for either discrimination claim, we need not complete the rest of the McDonnell Douglas test that questions whether an employer’s articulated reason for an adverse employment action is a pretext for unlawful discrimination. Therefore, for the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of MTF in its entirety,” Rendell said.

The plaintiff is represented by James J. Conaboy of Abrahamsen Conaboy & Abrahamsen in Scranton.

The defendant is represented by Vincent N. Avallalone of K&L Gates in Newark, N.J.

U.S. Court of Appeals for the Third Circuit case 16-3010

U.S. District Court for the Middle District of Pennsylvania case 3:15-cv-00640

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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