NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 18-2933
CLIVE BARON,
Appellant
v.
ABBOTT LABORATORIES
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-02736)
District Judge: Honorable Jan E. DuBois
Submitted Under Third Circuit L.A.R. 34.1(a)
April 15, 2019
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: May 9, 2019)
OPINION *
AMBRO, 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.
This appeal concerns whether STARLIMS, a subsidiary of Abbott Laboratories,
retaliated against Clive Baron by not rehiring him after he sued them for age
discrimination. Because Baron can show no fact that, construed in his favor, establishes
a causal relationship between his age discrimination suit and Abbott’s failure to rehire
him, we affirm the District Court’s granting of Abbott’s motion for summary judgment.
I. Background
Baron worked for STARLIMS for over fifteen years, most recently as the
company’s General Manager to four geographic regions from March 2012 until
December 2013. During this time as GM, he reported directly to STARLIMS Divisional
VP David Champagne and was, by all accounts, a strong employee. In December 2013,
STARLIMS restructured its leadership after the company missed its revenue goals by
15%. It removed Baron’s position and promoted each employee who had supervised a
region under him to GM of that region, reporting directly to Champagne. After being
terminated, Baron filed an age discrimination suit (“Baron I”) against Abbott, which he
eventually lost.
While his suit in Baron I was ongoing, Abbott and STARLIMS decided it needed
to recreate Baron’s old position, and so Champagne hired Richard Lanchantin for the post
in February 2015. The next two years brought significant changes to STARLIMS’
leadership. Champagne stepped down in May and was replaced first by Jay Srinivasan,
and then ultimately by Mark Spencer. Following Spencer’s promotion, Lanchantin
resigned in early 2016. Spencer hired Pedro Malha to replace Lanchantin in April 2016,
but he resigned in June and was replaced by Steve Klis in November 2016. When hiring
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Malha and Klis, Abbott only advertised the vacancies internally and so Baron neither
heard of nor applied for these positions. Spencer hired both Malha and Klis after Dolores
Sanan, a Human Resources Director at Abbott, presented each as the only candidate for
his review.
After learning that Abbott had recreated his old position, Baron filed suit in the
Eastern District of Pennsylvania alleging that Abbott retaliated against him by not
rehiring him. After the parties conducted discovery, Abbott filed a motion for summary
judgment, which the District Court granted. Baron now appeals.
II. Standard of Review
We review the District Court’s grant of summary judgment de novo. Carvalho-
Grevious v. Delaware State Univ., 851 F.3d 249, 256 (3d Cir. 2017). Thus, we will
affirm if, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law . . . . view[ing] the underlying facts and all reasonable
inferences therefrom in the light most favorable to the party opposing the
motion.” Davenport v. Borough of Homestead, 870 F.3d 273, 278 (3d Cir. 2017)
(internal quotation marks and citations omitted).
Baron raises retaliation claims under the Age Discrimination in Employment Act,
the Florida Civil Rights Act of 1992, and the Pennsylvania Human Rights Act. Each is
governed by the McDonnell Douglas burden-shifting framework. See Daniels v. Sch.
Dist. of Philadelphia, 776 F.3d 181, 192–93 (3d Cir. 2015); Zaben v. Air Prod. &
Chemicals, Inc., 129 F.3d 1453, 1455 & n.2 (11th Cir. 1997). Under that framework,
Baron must first establish a prima facie case of retaliation. Daniels v, 776 F.3d at 193.
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This requires him to show that (1) he engaged in a protected activity, (2) he suffered an
adverse employment action, and (3) a causal connection exists between the protected
activity and the adverse action. Id. If he can establish a prima facie case of retaliation,
the employer must provide a legitimate non-retaliatory reason for its conduct, which
Baron can then rebut if he shows the reason is merely pretext. Id.
III. Discussion
The parties do not dispute, as the District Court concluded, that the first two
prongs of the prima facie case are satisfied. Protected actions “include[] . . . an
employee’s filing of formal charges of discrimination against an employer.” Daniels v.
Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015). And not being rehired can
constitute an adverse employment action. Wilkerson v. New Media Tech. Charter Sch.
Inc., 522 F.3d 315, 320 (3d Cir. 2008). The District Court ruled that Baron failed to
show that his prior suit caused his not being rehired. 1 Baron argues that this was an error
and that a retaliatory motive was present in each of Abbott’s hiring decisions for his old
GM position.
1
In the alternative, the Court ruled that Baron could not establish pretext because he
could not show that the legitimate reason for not hiring him—that he did not apply—was
pretext to a retaliatory motive. Because we agree on causation, we need not reach
pretext. As a practical matter, however, the two inquiries could run together. Showing
that Abbott deliberately concealed the positions from Baron could support both a causal
relationship between Baron I and Baron’s non-hiring and that Abbott’s legitimate reason
for not hiring him was pretext.
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a. Lanchantin’s hiring in February 2015
Baron asserts that Abbott retaliated when it hired Lanchantin instead of him to fill
his old position. He contends that Abbott deliberately concealed the position from him
during his suit by not disclosing it in an interrogatory. It asked Abbott to identify “each
person employed at STARLIMS at grade 20 or above since January 1, 2013, . . . [their]
duties[,] . . . responsibilities[,] . . . qualifications[,] . . . [and] the dates each individual
held each such position.” App. at 340. It also asked Abbott to “describe in complete
detail the process by which the decision was made to employ each person in each such
position, [and] identify all individuals involved in the decision to employ each person . . .
.” Id. Abbott only provided responses for employees who held positions between
December 1, 2013, and February 7, 2014. Id. at 341. Baron argues that, in so
responding, the company deliberately concealed Lanchantin’s hiring in February 2015.
This evidence is insufficient to infer retaliation. Even if Abbott disclosed Lanchantin’s
position, Baron would not have been able to apply for it because it was already filled at
the time of the disclosure. Baron thus fails to show a causal link between his prior suit
and the company’s hiring of Lanchantin.
b. Malha’s hiring in April 2016 and Klis’s in November 2016
Baron also claims that Abbott considered Baron I in its decision not to hire him as
Lanchantin’s replacement. Baron did not apply for the position because, he contends,
Abbott deliberately advertised the position internally so as to conceal it from him. He
points to Sanan, who knew of his age discrimination suit, as the person who directed
Abbott to advertise internally.
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But the record does not support this contention. Sanon stated in a deposition that
she did not have “any involvement in the decisions on whether or not to post an open
position on Abbott’s job posting system at STARLIMS.” App. 357. Baron believes that
Spencer’s deposition contradicts her statement:
Q: Did you have any support from human resources
in connection with recruiting and hiring a replacement for Mr.
Lanchantin in early 2016 or the Spring of 2016?
[Spencer]: Yes.
Q: From whom did you receive that support?
[Spencer]: D[o]lores.
Q: And can you describe all of the ways in which
D[o]lores supported you in connection with the recruitment
and hiring of a replacement for Lanchantin?
[Spencer]: Very little.
Q: Well, you mentioned that there were things like
posting the position, determining salary grade, doing other
kinds of paperwork associated with that. Was that correct?
[Spencer]: Yes.
Q: Who did all of that kind of leg work in
connection with the recruitment and hiring of a replacement for
Lanchantin in the global director position?
[Spencer]: D[o]lores.
Id. at 291. But even construed in Baron’s favor, there is no contradiction here. Spencer
states that Sanan “post[ed] the position,” not that she had a role in determining whether
the position should be public or private. Baron also points to no facts showing that the
decision to advertise internally departed from STARLIMS’ standard practices or what
considerations affected whether the company advertised internally or externally. In short,
he offers no facts suggesting Baron I influenced in any way the company’s decisions to
recruit or hire for the GM position.
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c. Abbott’s hiring of other positions
Baron also challenges his not being hired for any of the region-specific GM
positions that were created in the initial restructure that caused his termination. Abbott
first promoted Simon Wood as the GM to Europe and Tamir Gottfried as the GM to the
Americas. Baron argues that he should have been considered too or hired when they
were replaced in 2016 and 2017, respectively. But as with the positions above, Abbott
only advertised internally and Baron cannot show facts that this was caused by his suit in
Baron I. His arguments fail for the same reasons discussed above.
Thus we affirm.
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