The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARIANO TANCREDI : CIVIL ACTION
:
v. :
:
:
SOUTHEASTERN PENNSYLVANIA :
TRANSPORTATION AUTHORITY : NO. 21-4434
MEMORANDUM OPINION
Savage, J. March 9, 2023
In this age discrimination case, the plaintiff Mariano Tancredi complains that his
employer, Southeastern Pennsylvania Transportation Authority (“SEPTA”), did not select
him for the position of Project Designer/Project Engineer that went to a younger applicant
because of his age. SEPTA has moved for summary judgment, arguing that the
undisputed facts establish that the applicant chosen for the position was better qualified
than Tancredi and age was not a factor in the decision. Because Tancredi concedes that
the decision makers were not motivated by age bias, we shall grant summary judgment
in favor of SEPTA.
Background
Tancredi, who was born in 1968,1 graduated from college with a degree in
electrical engineering technology in 1993.2 He began his career at SEPTA as a 2nd Class
1 Charge of Discrimination at 1, ECF No. 26-2 at 2–5 (attached as Ex. A to Def. SEPTA’s Mot. for
Summ. J., ECF No. 26 [“Mot. for Summ. J.”]).
2 Deposition of Mariano Tancredi 21:21–24, ECF No. 26-2 at 102–26 [“Tancredi Dep.”] (attached
as Ex. N to Mot. for Summ. J.).
Electrician on September 11, 2006.3 He was later promoted to 1st Class Electrician in
2017 or 2018.4
On August 5, 2019, Tancredi applied for a position as a Project Designer or Project
Engineer in Quality Assurance.5 Qualifications called for a high school diploma and
eleven years of appropriate experience in railway or transit maintenance and
manufacturing or meaningful construction experience.6 An equivalent combination of
education and experience also qualified.7
Tancredi was one of four candidates selected from the applicant pool to interview
for the position.8 The other candidates were Kristopher Hodge, Thomas Redding, and
Richard Moore.9 Interviews of all four candidates were conducted by the same three-
member panel.10 The panel asked each interviewee the same five questions.11 Each
panelist independently scored each candidate’s answers based on the quality of the
answers.
3 Statement of Material Facts ¶ 2, ECF No. 26-1 [“SMF”].
4 Tancredi Dep. 11:8–11.
5 SMF ¶¶ 8–9.
6 Project Designer/Project Engineer Job Posting at 3, ECF No. 26-2 at 61–63 (attached as Ex. H
to Mot. for Summ. J.).
7 Id.
8 SMF ¶ 10.
9 SEPTA Consensus Panel Ranking (Oct. 9, 2019), ECF No. 26-2 at 88 (attached as Ex. K to Mot.
for Summ. J.).
10 SMF ¶ 12; Interview Guide for Project Designer (Oct. 9, 2019) at 1, 7, 13, ECF No. 26-2 at 65–
82 (attached as Ex. I to Mot. for Summ. J.).
11 SMF ¶ 13.
In the Consensus Panel Ranking, Hodge ranked first and Tancredi ranked
second.12 Hodge was hired for the position.13
On November 26, 2019, SEPTA notified Tancredi that another candidate had been
selected for the position.14 He was advised that based on his performance during the
interview, he remained eligible for one year to fill the position in the event it opened.15
On December 12, 2019, Tancredi contacted Carol O’Neal, SEPTA’s Affirmative
Action Officer, requesting an explanation of SEPTA’s decision.16 Four days later, O’Neal
and Senior Recruiter Faith Frisbie met with Tancredi to discuss his concerns.17 They
discussed his interview performance, explaining his scores and areas for improvement.
They added that he had performed well enough to remain eligible for a year to fill the
position if it became available.18
Following that meeting, Tancredi filed a complaint alleging age and national origin
discrimination with SEPTA’s EEO Department.19 O’Neal conducted an internal
investigation.20 In her detailed “Investigation Summary,” she outlined her discussion with
12 See SEPTA Consensus Panel Ranking.
13 Deposition of Charles Tuzzo 91:20–23, ECF No. 26-2 at 38–54 [“Tuzzo Dep.”] (attached as Ex.
E to Mot. for Summ. J.).
14 Letter from Faith Frisbie to Mariano Tancredi (Nov. 26, 2019), ECF No. 26-2 at 56 (attached as
Ex. F to Mot. for Summ. J.).
15 Id.
16 SMF ¶ 16; SEPTA’s EEO Investigation Summary at 1, ECF No. 26-2 at 33–36 (attached as Ex.
D to Mot. for Summ. J.).
17 SMF ¶ 17; SEPTA’s EEO Investigation Summary at 1.
18 SMF ¶¶ 18–19; Deposition of Carol O’Neal 62:19–22, ECF No. 26-2 at 13–31 [“O’Neal Dep”]
(attached as Ex. C to Mot. for Summ. J.); SEPTA’s EEO Investigation Summary at 1–2.
19 SMF ¶ 20; Charge of Discrimination at 2.
20 SMF ¶ 21; O’Neal Dep. 4:11–16.
Frisbie and Tancredi regarding his interview performance.21 She then reviewed the other
positions Tancredi had applied for in the past and explained why he was not given those
jobs or interviews.22 In connection with Tancredi’s applications for other jobs, O’Neal
explained:
It should also be noted that [Tancredi] listed positions in his
complaint that he applied for during 2013-2015. Five (5) of
these were entry level Engineer positions which SEPTA
recruit[s] for by discipline such as: Electrical, Civil, Structural
or Mechanical.
As a matter of practice, SEPTA’s entry level Engineer
candidates are those who have recently graduated within 1-2
years of the job posting. [Tancredi] contended that SEPTA
did not provide him a promotional opportunity because of his
age. SEPTA qualification for entry level Engineer positions
are not based on age, but by newly graduates of Engineering
and specific discipline, no matter the age.
During this same time frame [Tancredi] applied for two (2)
Project Engineer positions, in 2013 and 2014 respectively.
Since the recruitment files were not available for these time
periods, the results of candidacy could not be determined.23
She concluded:
At the conclusion of my investigation, on February 28, 2020, I
contacted [Tancredi] by phone. I advised him that his age or
his ethnicity, Hispanic[,] was not a factor/decision used in the
promotional process for the positions he applied for over the
past three (3) years. I advised him that the promotional
process is very competitive and generally there is only one (1)
available position. I also informed him that SEPTA grants
interview[s] to those who meet the qualifications of the
position and that he was granted an interview for 2 of 4
positions he applied for over the past three (3) years.
I also explained to him SEPTA’s practice for recruiting entry
level Engineer candidates, as described above.
21 SEPTA’s EEO Investigation Summary at 1–2.
22 Id. at 2–3.
23 Id. at 3.
Lastly, I further emphasized to him that the Project
Designer/Project Engineers Q. A. position he interviewed for
was well documented and his race or age was not a factor.
At the close of the conversation, [Tancredi] stated that the
investigation was not good enough and he feels that SEPTA
should provide him with information about the person who
received the promotion. He repeatedly stated that he did not
receive promotions because he’s Hispanic.
At that point, I informed [Tancredi] that I completed my
investigation and I was going to close his complaint.
[Tancredi] abruptly stated since SEPTA would not help him he
was going to file a complaint with the EEOC and hung up the
phone.24
On February 28, 2020, O’Neal discussed her findings with Tancredi.25 Dissatisfied
with her explanation, Tancredi filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on April 6, 2020, alleging age and
national origin discrimination.26 On July 6, 2021, the EEOC issued a Dismissal Notice of
Right to Sue Letter.27 Tancredi filed his pro se complaint in this court on October 6, 2021,
alleging age, race, and national origin discrimination and retaliation claims.28
24Id.
25 SMF ¶ 22; Charge of Discrimination at 2.
26 Charge of Discrimination at 1–2.
27 U.S. Equal Employment Opportunity Commission Dismissal and Notice of Rights at 1, ECF No.
26-2 at 58–59 (attached as Ex. G to Mot. for Summ. J.). According to the letter:
THE EEOC IS CLOSING ITS FILE ON THIS CHARGE FOR THE
FOLLOWING REASON: . . . The EEOC issues the following
determination: The EEOC will not proceed further with its investigation,
and makes no determination about whether further investigation would
establish violations of the statute. This does not mean the claims have no
merit. This determination does not certify that the respondent is in
compliance with the statutes. The EEOC makes no finding as to the merits
of any other issues that might be construed as having been raised by this
charge.
Id.
28 See Compl., ECF No. 1.
SEPTA filed a motion to dismiss, arguing that Tancredi’s claims were time-barred
because he filed his complaint two days after the 90-day deadline to file a complaint after
receiving the Notice of Right to Sue Letter.29 It also contended that Tancredi’s race-based
discrimination and retaliation claims should be dismissed for failure to exhaust
administrative remedies, and that he failed to plead facts sufficient to state claims for
retaliation, race discrimination, and national origin discrimination.30 We dismissed
Tancredi’s claims for retaliation under Title VII and the ADEA with prejudice, and
dismissed the race and national origin discrimination claims without prejudice.31 We also
granted Tancredi leave to file an amended complaint.32 Tancredi, represented by
counsel, filed an amended complaint on May 12, 2022, dropping his race and national
origin-based claims and limiting his claim to age discrimination.33
Standard of Review
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). Judgment will be entered against a party who fails to sufficiently
establish any element essential to that party’s case and who bears the ultimate burden of
proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering the motion, we must draw all reasonable inferences in the
nonmovant’s favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159–60 (3d Cir.
29 Def.’s Mot. for Dismiss Pl.’s Compl. ¶ 1, ECF No. 8.
30 Id. ¶¶ 2–3.
31 Order ¶¶ 3, 6, ECF No. 14.
32 Id. ¶ 7.
33 See First Am. Civ. Compl., ECF No. 18.
2003). Disagreements over what inferences may be drawn from the facts, even
undisputed ones, preclude summary judgment. Ideal Dairy Farms, Inc. v. John Labatt,
Ltd., 90 F.3d 737, 744 (3d Cir. 1996) (citation omitted). Credibility determinations, the
drawing of legitimate inferences from facts and the weighing of evidence are matters left
to the jury. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Bare assertions,
conclusory allegations or suspicions are not sufficient to defeat summary
judgment. Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). “Where
the record taken as a whole could not lead a rational trier of fact to find for the non-moving
party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted).
When the non-movant does not respond to the motion for summary judgment or
present contravening facts, we may consider the facts as undisputed for purposes of the
motion. Nonetheless, we still must conduct an independent analysis to determine
whether the movant is entitled to summary judgment. See Fed. R. Civ. P. 56(e)(2)–(3)
advisory committee’s note to 2010 amendment (recognizing that
“summary judgment cannot be granted by default even if there is a complete failure to
respond to the motion”); E.D. Pa. Local R. Civ. P. 7.1(c). The court must ensure that “the
motion and supporting materials . . . show that the movant is entitled to it.” Fed. R. Civ.
P. 56(e)(3). In short, even in the absence of opposition, summary judgment may be
granted only if the moving party demonstrates that the movant is entitled to judgment as
a matter of law.
Tancredi did not respond to SEPTA’s Statement of Material Facts. He filed his
own short Statement of Material Facts that did not contradict SEPTA’s facts. The
scheduling order clearly advised the parties that “[a]ll material facts set forth in the
Statement of Undisputed Facts served by the movant shall be deemed undisputed unless
specifically controverted by the opposing party.”34 Tancredi did not controvert SEPTA’s
stated facts. Thus, our task is to determine whether, given these undisputed facts which
are supported by the record, SEPTA is entitled to judgment as a matter of law.
Analysis35
Because Tancredi is proceeding under a pretext theory and does not present any
“direct evidence” of discrimination, his claims are governed by the burden-shifting
McDonnell Douglas analysis. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002);
Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir.1995) (citations
omitted). Under the burden-shifting McDonnell Douglas analysis, Tancredi must first
establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973); Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021).
Establishing a prima facie case of discrimination “‘is not onerous’ and poses ‘a burden
easily met.’” Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 365 (3d Cir. 2008) (quoting
Tex. Dep’t of Corr. Affs. v. Burdine, 450 U.S. 248, 253 (1981)). The determination of
whether a prima facie case has been established is, under most circumstances, a
question of law for the court. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 347 n.1 (3d
Cir. 1999).
34 Scheduling Order ¶ 5(c), ECF No. 25.
35 Relying on the same facts forming the basis for his ADEA claim, Tancredi also alleges violations
of the PHRA. The ADEA and PHRA are coextensive. Therefore, our analysis of Tancredi’s ADEA claim
applies equally to his PHRA cause of action. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (citations
omitted); Slagle v. County of Clarion, 435 F.3d 262, 265 n.5 (3d Cir. 2006) (citations omitted).
If he succeeds in establishing a prima facie case, the burden shifts to SEPTA to
“articulate a legitimate nondiscriminatory reason for the adverse employment action.”
Willis v. UPMC Child.'s Hosp. of Pitts., 808 F.3d 638, 644 (3d Cir. 2015) (quoting Jones
v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999)). SEPTA’s burden is “relatively
light.” Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citations omitted). It can
satisfy its burden by “introducing evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the unfavorable employment
decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citation omitted).
SEPTA’s burden is one of production, not persuasion. Chuang v. Univ. of Cal. Davis, Bd.
of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000) (citation omitted). It “need not prove that the
tendered reason actually motivated” its decision. Fuentes, 32 F.3d at 763 (emphasis in
original) (citation omitted). It need only show that the decision could have been motivated
by the proffered legitimate, nondiscriminatory reason. Id.; Iadimarco v. Runyon, 190 F.3d
151, 157 (3d Cir. 1999) (citation omitted).
If SEPTA satisfies its burden, the burden shifts back to Tancredi to discredit
SEPTA’s proffered justification or present evidence that he was replaced and terminated
for a discriminatory reason. Lupyan v. Corinthian Colls. Inc., 761 F.3d 314, 324 (3d Cir.
2014) (citations omitted). Tancredi must produce evidence from which a reasonable
factfinder could conclude that the proffered reason for taking the adverse action was
merely a pretext for intentional discrimination. Willis, 808 F.3d at 644 (citing Burton, 707
F.3d at 426–27). He may discredit the proffered reason by demonstrating “‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons’ to satisfy the factfinder that the employer’s
actions could not have been for nondiscriminatory reasons.” Id. at 644–45 (quoting
Fuentes, 32 F.3d at 765). He can meet his burden by producing evidence from which a
factfinder could conclude that the adverse employment action was more likely than not
the result of discrimination. Id. at 645 (citing Fuentes, 32 F.3d at 764). Examples of such
evidence include previous acts of discrimination against him, discrimination against other
persons within his protected class or within another protected class, or a showing that
SEPTA has treated similarly situated non-members of the protected class more favorably.
Id. (citation omitted).
In other words, Tancredi must proffer “evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the employer’s articulated
legitimate reasons . . . or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s action.” In re Trib.
Media Co., 902 F.3d 384, 402 (3d Cir. 2018) (quoting Fuentes, 32 F.3d at 764); see also
Willis, 808 F.3d at 644–45 (citations omitted). The final burden of production “merges
with the ultimate burden of persuading [the jury] that []he has been the victim of intentional
discrimination.” Burdine, 450 U.S. at 256.
To establish a prima facie case of age discrimination, Tancredi must show: (1) he
is at least 40 years old; (2) he suffered an adverse employment decision; (3) he was
qualified for the position; and (4) a sufficiently younger employee was appointed to the
position. Willis, 808 F.3d at 644 (citation omitted).
Tancredi has made out a prima facie case of age discrimination. He was 51 years
old when he was not selected for the position. As the results of the interview process
show, he was qualified for the position. A younger candidate was selected for the
position. Hence, the burden shifts to SEPTA to present a legitimate nondiscriminatory
reason for failing to award the job to Tancredi.
SEPTA contends that Tancredi was not selected because he scored lower than
the candidate selected for the position. The candidate who scored the highest, Hodge,
was selected.
The interviews were conducted by a three-member panel, consisting of Charles
Tuzzo, John Yum, and Daniel Jones. All four candidates were asked the same five
questions. Each panelist ranked the candidates’ answers on a numerical scale of one to
twenty. All panelists ranked Hodge ahead of Tancredi in all categories. The scores for
each of the top two candidates are as follows:
Po at [| 14 | 15 1282
| a2 of 15 | 16 13
| a3 | 13) | 4A 4 15 3
| a4 {| 10 | 17 ft 18 tT
P54 ttt 8
| Total [66 | sot
In the Consensus Panel Ranking, Hodge, the youngest candidate, ranked first and
Tancredi, the oldest candidate, ranked second. Consistent with SEPTA’s policy, Hodge
was offered the Project Designer/Project Engineer position because he was ranked first
in the interview process. As O’Neal explained the process:
Q: So this interview process alone was the only determining
factor as to why Mr. Hodge got the job over the other three
individuals?
A: Yes.
Q: Even though Mr. Tancredi had 13 years of experience at
SEPTA?
11
A: Yes. That part doesn’t matter. The only part that matters
is if you meet the qualifications. After that everything is even.
If you meet the qualifications you go to the interview.
Whoever shows out at the interview gets the job. Whoever
performs the best at the interview is the person awarded the
position.36
Likewise, Tuzzo testified:
Q: At the bottom of the document it says acceptable one, two,
three, not four.
What does that mean?
A: So, that means in the final rank, candidate number one,
who we made the offer, in the event that candidate number
one turns the offer down or does not take the offer, then
candidate number two would be able to be given the offer.
If the offer was turned down by candidate number two or
unavailable to candidate number two, then candidate number
three would be made an offer.
If the third candidate then turned [down] the offer, we would
then have to go back out and re-solicit the job. We would not
be extending an offer to candidate four.
. . . .
A: . . . If the number one candidate for whatever reason
decided to leave within the first year, the first 365 days, I would
then be able to select the second candidate to come in and
take that position.37
SEPTA has shown a legitimate, non-discriminatory reason for why Tancredi did
not get the job. The burden shifts back to Tancredi to introduce evidence of pretext. He
has not done so.
36 O’Neal Dep. 55:3–16.
37 Tuzzo Dep. 49:3–50:5.
In effect, the panelists were the decision makers. Whomever they ranked first was
offered the position. No one else in SEPTA had input in the selection process. Tuzzo
confirmed that the selection decision was based on the panel’s scoring:
Q: Let me get to the heart of the matter.
My question is, were the interview questions and answers the
only factor in Mr. Tancredi not getting the job?
A: Yes. They were the only factor in Mr. Tancredi not getting
the job.
Q: And who made the ultimate decision to hire Mr. Hodge and
not Mr. Tancredi?
A: The ultimate decision was based on the scoring itself of the
three panelists.
Q: Who was the person then that made the decision to hire
Mr. Hodge and offer him that position?
MR. KENNEDY: Objection.
THE WITNESS: It wasn’t a person, it was a panel. So – so
there is no answer.
BY MR. WEINBERG:
Q: Well, there has to be an answer. There were three panel
members; were there not?
A: Yes.
Q: So Mr. Yum, Mr. Jones, and Mr. Tuzzo decided to hire Mr.
Hodge over Mr. Tancredi based upon the scoring system.
Can we agree?
A: Yes.38
38 Id. 90:22–91:23.
Tancredi does not accuse the panelists of age bias. On the contrary, he testified
at his deposition that he did not believe that either Tuzzo, Yum or Jones decided not to
award him the position based on his age. He candidly testified:
Q: Mr. Tancredi, I was looking back at my notes, and when
we lost connection a little while ago, I had asked you, “Did any
of the panel members, so Mr. Tuzzo, Mr. Yum, or Mr. Jones,
say or do anything that made you believe that they were
making a decision based on your age?” And I think we got
cut off at that point. So I want to ask you that question again.
A: No, but the lack of the other two interviewers writing down
what I said would make me believe that they already know
who they wanted.39
Tancredi speculated that “the lack of the other two interviewers writing down what
[he] said” made him “believe that they already kn[e]w who they wanted.”40 The
interviewer’s notes were preserved in the Interview Guide. They show that contrary to
Tancredi’s perception, all panelists made notes.41 In any event, though he questions the
absence of note taking, he does not attribute the ranking of Hodge higher to age bias.
Indeed, he admitted that the lack of note taking “had nothing to do with his age.”42
Conclusion
Tancredi does not accuse the decision makers of age-based discrimination in the
selection process. He concedes they did not make the decision to award the position to
a younger applicant based upon age. Therefore, because Tancredi has not shown any
evidence of age bias, SEPTA is entitled to judgment as a matter of law.
39 Tancredi Dep. 78:20–79:4 (emphasis added).
40 Id. 79:2–4.
41 See Interview Guide for Project Designer at 7–18.
42 SMF ¶ 51.