In McCrorey v. City of Philadelphia, 2025 WL 1392164, at *3 (C.A.3 (3d Cir. May 14, 2025), the U.S. Court of Appeals for the Third Circuit, inter alia, vacated a lower court’s summary judgment dismissal of plaintiff’s age discrimination claim under the Age Discrimination in Employment Act (ADEA).
In particular, the court held that the Supreme Court’s recent decision in
ADEA and PHRA age-discrimination claims are analyzed under the three-step burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green: (1) the plaintiff makes out a prima facie case of discrimination; (2) the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its action; and (3) the burden shifts back to the plaintiff to establish the reasons given were pretexts for discrimination. 411 U.S. 792, 802–04 (1973).2 The plaintiff maintains the ultimate burden of showing that age was the determinative reason for the discrimination, not just a “motivating factor.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174 (2009).
To establish a prima facie case of age discrimination, McCrorey was required to show that: (1) he was over 40; (2) he was qualified for the job; (3) he suffered an adverse employment action; and (4) he was replaced or passed over in favor of someone sufficiently younger to support an inference of discriminatory motive. Smith v. City of Allentown, 589 F.3d 684, 689–90 (3d Cir. 2009) (citing Potence v. Hazelton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004)).
The District Court granted summary judgment in favor of the City, finding that McCrorey did not establish a prima facie case of age discrimination. Specifically, it found that his transfer to the Northwest Division did not qualify as an “adverse employment action” because he did not suffer a “significant” change to his employment. A17. The District Court rejected McCrorey’s argument that the transfer to a division that he alleged was less prestigious, less likely to facilitate career advancement, and offered fewer opportunities for earning overtime, qualified as an adverse employment action. Instead, it deemed that the reassignment to the Northwest Division “resulted in no direct, immediate economic harm” because McCrorey maintained his title and received the same base salary. A19.
After the District Court’s ruling, the Supreme Court decided Muldrow v. City of St. Louis, 601 U.S. 346 (2024).3 Muldrow expressly rejected the rule that the harm an employee suffers must be “significant … [o]r serious, or substantial, or any similar adjective suggesting that the disadvantage … must exceed a heightened bar” for there to be an adverse employment action. Id. at 355 (internal quotation marks and citation omitted). Instead, a transferred employee claiming discrimination is only required to show they suffered “some harm” with respect to “an identifiable term or condition of employment.” Id.Following Muldrow, it is possible the District Court would differently assess the adverse-action element of a prima facie case under McDonnell Douglas. See e.g., Peifer, 106 F.4th at 277 (citing Muldrow’s holding “that, contrary to our prior precedent, an employee need not demonstrate that the asserted adverse employment action was a ‘serious and tangible’ employment-related harm”) (citation omitted). This Court in Peifer remanded a Title VII discrimination case so that the district court could reassess its grant of summary judgment under Muldrow’s “some” employment-related harm standard.
The court thus vacated the grant of summary judgment, and remanded the case so the district court can apply Muldrow’s new standard.