on December 12, 2018
Appeal from the United States District Court for the Western
District of Pennsylvania (W.D. Pa. No. 2-12-cv-01122)
District Judge: Honorable Arthur J. Schwab
Marjorie E. Crist [ARGUED by Video-Conference] Crist Law
Center Counsel for Appellant
Charles J. Porter, Jr. [ARGUED by Video-Conference] Bernard
M. Schneider Brucker & Porter Counsel for Appellee
Before: SMITH, Chief Judge, McKEE and FISHER, Circuit Judges.
OPINION OF THE COURT
FISHER, CIRCUIT JUDGE.
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
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 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
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
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.
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.
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
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
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.
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.
alleges the negative treatment continued after termination.
He applied for payment for his unused sick days, "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.
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, 135 S.Ct. 1398 (2015).Hildebrand filed a petition
for certiorari regarding the dismissed claims, which the
Supreme Court denied.
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),  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.
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 ...