James P. McCabe v. VOEGELE MECHANICAL, INC. On Appeal From the United States District Court For the…

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3444
JAMES P. MCCABE,
Appellant
v.
VOEGELE MECHANICAL, INC.
On Appeal From the United States
District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 02-cv-07938)
District Judge: Hon. Berle M. Schiller
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 1, 2004
BEFORE: AM BRO, ALDISERT and STAPLETON, Circuit Judges
(Opinion Filed: July 8, 2004 )

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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant James McCabe (“McCabe”) was a sixty-six year old plumber when he
was laid off on December 19, 2001, by appellee Voegele Mechanical, Inc. (“Voegele”).
He brought this action asserting claims under the Age Discrimination in Employment Act
(“AEDA”). The District Court granted summary judgment to Voegele, and this appeal
followed. We will affirm.
The District Court found that McCabe had tendered a prima facie case. It
concluded, however, that a reasonable trier of fact, based on the evidence tendered by
Voegele, could not find that McCabe’s termination was attributable to age discrimination
rather than the legitimate, non-discriminatory reasons Voegele put forward – the work to
be done called for fewer plumbers, resulting in a reduction in force, and McCabe was
regarded as the slowest of the plumbers employed on the site.
The District Court’s opinion contains a thorough and accurate analysis of the
evidence in the summary judgment record viewed in the light most favorable to McCabe.
We agree with the conclusion there reached for substantially the same reasons there
given.

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The undisputed evidence indicated that the tapering design of the building where
McCabe was working – the Dockside Project – mandated a reduction in force as the job
progressed to the ninth floor. McCabe testified that he was working on the eighth floor
when he was laid off and that the carpenters whose work had to precede his were also on
that floor. There was no admissible evidence that, following McCabe’s termination,
Voegele had plumbing work available either at the Dockside Project or at any other
Voegele site.
With respect to McCabe’s productivity, Mr. Murtha, the project foreman and the
one who made the termination decision, testified that Mr. Campbell, McCabe’s unit
foreman, told him that McCabe was “the least productive man I had on copper,” requiring
two days to do a “B” unit. McCabe insisted that it took him only a day and a half to do a
“B” unit, but Murtha testified such a unit could normally be done in six to ten hours, and
there was no contrary evidence.
With respect to the testimony regarding the Christmas party and M cCabe’s theory
that Mr. Voegele there learned of McCabe’s age and determined to fire him, there is no
competent evidence that Mr. Voegele learned McCabe’s age at the party and, on this
record, McCabe’s theory is sheer speculation.
The judgment of the District Court will be affirmed.

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