Labor & Employment Law Daily Wrap Up, DISCRIMINATION—AGE—E.D. Pa.: Transit director, denied promotions, failed to prove age discrimination, (Jan 10, 2025)

By Jason Albright, J.D.

The plaintiff did not present evidence of the ages of his purported comparators.

An Assistant Director of Maintenance in the Buildings and Bridges department for the Southeastern Pennsylvania Transportation Authority (SEPTA), allegedly continually denied promotions because of his age since 2012, failed to substantiate his ADEA age discrimination or retaliation claims, a federal district court found. There was no evidence of the ages of other employees he adduced as comparators, and though he alleged that a senior decisionmaker expressed a preference for younger employees who would “be around longer,” the statements were inadmissible hearsay within hearsay. The assistant director also abandoned his retaliation claim (Dormann v. Southeastern Pennsylvania Transportation Authority, No. 23-3520 (E.D. Pa. Jan. 6, 2025)).

SEPTA career. The employee began working for SEPTA in 1980 and currently holds the position of Assistant Director of Maintenance in the Buildings and Bridges department.

Denied promotions. He alleged that, beginning in 2012, he was continually denied promotions because of his age. He filed a formal charge with the EEOC in November 2022, alleging age discrimination and retaliation under the ADEA, and following the EEOC's dismissal of the charges, he sued in federal district court.

Two opportunities at issue. The only two alleged instances of discrimination by failure to promote—identified in his complaint and not conceded as untimely—were denials of promotion to two director positions in the Spring and Summer of 2022.

Motion for summary judgment. After his claims survived the motion to dismiss stage, SEPTA and the two managers named in his suit moved for summary judgment.

Age discrimination. The court first found that the assistant director failed to establish a prima facie case of age discrimination because there was no evidence of the ages of other employees he adduced as comparators. He alleged that the two candidates who received the promotion he was denied were significantly younger such that an inference of discrimination could be drawn, but the only evidence related to this issue was his own averment that “[The first alleged comparator] is also significantly younger than me and between 13 and 15 years younger.” He did not identify any evidence at all establishing the other alleged comparator’s age.

Here the court found that, although his declaration could be relied upon to oppose summary judgment, his guess at the first alleged comparator’s age was “mere speculation that cannot support an inference of discrimination.” Because discovery in the case had concluded and the assistant director apparently did not depose either of the two purported comparators or collect any other evidence of their ages, the court concluded that it could not permit a jury to base its decision on nothing more than the assistant director’s speculation.

Direct evidence? The assistant director also attempted to present direct evidence of age discrimination based on his own deposition testimony in which he claimed that, in 2019, an unidentified senior director told him that a different senior decisionmaker at SEPTA and named defendant in the case said that “she wanted somebody who was going to be around for a longer period of time.” Here, the assistant director did not identify the senior director who allegedly told him about the statements, he did not depose the senior decisionmaker who allegedly made them, and there was no other evidence of the statements. The court thus concluded that the alleged statements were inadmissible hearsay within hearsay.

Abandoned retaliation claim. Finally, the court found that the assistant director, having failed to respond to the defendants’ argument that he could not establish either his prima facie case of retaliation or pretext, abandoned the retaliation claim.

Summary judgment in favor of the defendants was granted on all claims.

The case is No. 23-3520.

Judge: Murphy, J.

Attorneys: Seth D. Carson (Law Offices of Seth D. Carson) for Arthur Christopher Dormann. Alexander V. Batoff (Stevens & Lee) for Southeastern Pennsylvania Transportation Authority dba SEPTA.

Companies: Southeastern Pennsylvania Transportation Authority; SEPTA

Cases: AgeDiscrimination Discrimination Retaliation PublicEmployees EvidenceDiscovery PennsylvaniaNews