Hildebrand v. Allegheny Cnty., 18-1760

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtFISHER, Circuit Judge.
Citation923 F.3d 128
Parties Anthony HILDEBRAND, Appellant v. ALLEGHENY COUNTY, a political entity; Allegheny County District Attorney's Office
Docket NumberNo. 18-1760,18-1760
Decision Date24 April 2019

923 F.3d 128

Anthony HILDEBRAND, Appellant
ALLEGHENY COUNTY, a political entity; Allegheny County District Attorney's Office

No. 18-1760

United States Court of Appeals, Third Circuit.

Argued on December 12, 2018
Opinion Filed: April 24, 2019

Marjorie E. Crist [ARGUED by Video-Conference] Crist Law Center, 792 Ella Street, Suite 100, Pittsburgh, PA 15243, Counsel for Appellant

Charles J. Porter, Jr. [ARGUED by Video-Conference] Bernard M. Schneider, Brucker & Porter, 180 Fort Couch Road, Suite 410, Pittsburgh, PA 15241, Counsel for Appellee

Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges.


FISHER, Circuit Judge.

In 2013, Anthony Hildebrand sued his former employer for age discrimination in the United States District Court for the Western District of Pennsylvania. When jurisdiction was returned to the District Court in 2015 after an appeal to this Court and the United States Supreme Court, Hildebrand’s sole remaining claim stagnated for three years. The docket idled until 2018, shortly after the death of Hildebrand’s former supervisor, a key witness. At that point, the employer filed a motion to dismiss for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The District Court granted the motion and dismissed the suit. We will vacate the dismissal and remand for further proceedings.


In his complaint, Hildebrand alleges that the Allegheny County District Attorney’s Office (the "DA’s Office") had an established practice of targeting older detectives to force them out of their jobs. He avers that Chief Detective Dennis Logan, Assistant Chief Richard Ealing, and Director of Administration Dawn Botsford

923 F.3d 130

engaged in purposeful, discriminatory behavior in the form of disparate treatment, retaliation, and "trumped-up" reasons to fire older detectives. Hildebrand’s amended complaint details paragraph after paragraph of alleged insults. For the purposes of this appeal, we need only summarize these copious allegations.

Hildebrand was hired by the DA’s Office in 2005, after fifteen years as an undercover narcotics detective with the City of Pittsburgh Police Department. He performed his job responsibilities satisfactorily and without incident for roughly four years. In 2009, Ealing was assigned as his new supervisor. From that time until his termination in February 2011, Hildebrand alleges he was subject to several forms of age-based discrimination.

First, Hildebrand alleges that his supervisors and peers derided him with age-related insults. Among many other taunts, they called him "an ‘old man’ who would never learn how to use a computer because of his age," App. 26, and stated that he had "Alzheimer’s and was too old to comprehend" his orders, App. 27. Ealing either was the source of these insults or failed to stop them, including when Hildebrand submitted complaints.

Second, Hildebrand alleges that his workload changed for the worse due to his age. He alleges that Ealing divided his responsibilities among younger investigators and assigned Hildebrand meaningless busywork that his younger peers did not have to perform. He further claims that he was deprived of overtime hours, counter to a tradition of assigning those hours to detectives with seniority, like Hildebrand.

Third, Hildebrand claims that his supervisors subjected his work to heightened scrutiny, questioning him extensively about his cases in a way that the younger detectives were not questioned, and trumping up false disciplinary charges that were meant to create a paper trail to support his termination.

Eventually, Hildebrand was demoted from a narcotics-division detective to general investigations and was relocated to a space with no desk, no working computer, and no phone. When Hildebrand asked why, Ealing became combative and countered that neither he nor Chief Detective Logan had to answer any of the "old son of a bitches [sic]" questions. App. 34-35. Hildebrand alleges that Ealing told him that he had gotten rid of old detectives previously and he was doing the same to Hildebrand. Hildebrand further asserts that Ealing and Logan obstructed him from filing a grievance regarding his demotion.

In February 2011, Hildebrand was suspended for five days without pay when Ealing and Logan accused him of committing several violations, including using a DA’s Office vehicle for personal use without permission—something that younger detectives regularly did without repercussions. Hildebrand alleges that several of the other supposed violations "never occurred." App. 43.

Hildebrand appealed his suspension to the Director of Administration, Dawn Botsford, who met with him for twenty minutes and did not allow him to present any evidence. A union meeting was held to vote on whether to grieve Hildebrand’s suspension. Logan appeared at the meeting—allegedly only the second time in his career that he attended such a meeting—for the alleged purpose of "intimidat[ing] any union members who supported Hildebrand." App. 44. The union voted not to appeal Hildebrand’s suspension. Hildebrand was terminated in February 2011.

Hildebrand alleges the negative treatment continued after termination. He applied for payment for his unused sick days,

923 F.3d 131

"which was the practice of the [DA’s Office]," but was denied. App. 44. Hildebrand also alleges that Ealing tried to obstruct his application for a private investigator license.

Hildebrand filed a complaint with the Equal Employment Opportunity Commission. The EEOC sent him a Determination and Right to Sue Notice. He then filed a complaint in the District Court against Allegheny County and the DA’s Office, alleging violations of the ADEA, 29 U.S.C. § 621, et seq. , constitutional violations under 42 U.S.C. § 1983, and several state law claims. The Defendants moved to dismiss Hildebrand’s ADEA claim for timeliness and his constitutional and state law claims for inadequate pleading. The District Court granted the motion, Hildebrand appealed, and this Court affirmed the dismissal of the § 1983 claims and reversed as to the ADEA claim. Hildebrand v. Allegheny Cty. , 757 F.3d 99 (3d Cir. 2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1398, 191 L.Ed.2d 359 (2015).1 Hildebrand filed a petition for certiorari regarding the dismissed claims, which the Supreme Court denied.

While his petition was pending, the DA’s Office filed a motion to dismiss the ADEA claim pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6),2 and 12(b)(7). Hildebrand filed a motion to stay the motion to dismiss "until appellate proceedings [were] concluded," which was granted. App. 118. Concurrently, Hildebrand also filed a substantive response to the pending motion to dismiss "so that it could be adjudicated upon" resolution of the petition for certiorari. Appellant’s Br. 3.

After the Supreme Court denied Hildebrand’s petition for certiorari and jurisdiction was returned to the District Court in February 2015, the docket remained administratively closed due to clerical error. No action was taken by the court or either party for the next three years. The court did not lift the stay, adjudicate the fully-briefed motion to dismiss, or schedule a status conference. Hildebrand did not follow up by filing a motion or making any other contact with the District Court. The DA’s Office also did not follow up on its pending motion to dismiss. Only after the death of one of its key witnesses, Ealing, did the DA’s Office file a motion to dismiss for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). The District Court granted the motion, and Hildebrand now appeals, arguing that the District Court abused its discretion.


The District Court had federal question jurisdiction over Hildebrand’s ADEA and § 1983 claims and supplemental jurisdiction over his related state law claims. 28 U.S.C. §§ 1331, 1367. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. "We review a District Court’s decision to dismiss a plaintiff’s case pursuant to Federal Rule of Civil Procedure 41(b) for an abuse of discretion." Briscoe v. Klaus , 538 F.3d 252, 257 (3d Cir. 2008) (citing Emerson v. Thiel Coll. , 296 F.3d 184, 190 (3d Cir. 2002) ).


A defendant may move to dismiss a claim against him where "the plaintiff fails

923 F.3d 132

to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order." Fed. R. Civ. P. 41(b). A district court should consider six factors when determining whether to dismiss a case under Rule 41(b). Poulis v. State Farm Fire & Cas. Co. , 747 F.2d 863, 868 (3d Cir. 1984). The court abuses its discretion where it fails to properly consider and balance those factors, namely:

(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.

Id. (emphasis omitted). The record must...

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