NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1623 __________

RICKY THOMPSON-EL, Appellant

v.

CHRIS BASHER; ROBIN ROBERTS; TRISH MOSES; GREATER DOVER BOYS AND GIRLS CLUB ____________________________________

On Appeal from the United States District Court for the District of Delaware (D.C. Civil Action No. 1:18-cv-01426) District Judge: Honorable Richard G. Andrews ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) August 3, 2023 Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges

(Opinion filed: August 3, 2023) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Ricky Thompson-El, proceeding pro se, appeals from the District Court’s sua

sponte dismissal of three defendants and grant of summary judgment for the remaining

defendant. For the reasons that follow, we will affirm.

Thompson-El, who is over 60 years old, was fired from his job as a lifeguard at the

Greater Dover Boys and Girls Club in 2017. 1 He filed suit against the Club and three

Club employees, alleging discrimination under the Age Discrimination in Employment

Act (“ADEA”),

et seq. Dkt. Nos. 1 & 8. After screening the complaint

pursuant to

(e)(2)(B), the District Court sua sponte dismissed the three

employees based on the lack of individual liability under the ADEA and otherwise

dismissed the complaint without prejudice. Dkt. No. 6. Thompson-El then filed an

amended complaint. Dkt. No. 8. After the Court ordered Thompson-El to respond to the

Club’s discovery requests and he failed to do so, the Club filed a motion for summary

judgment, which the District Court granted. Dkt. Nos. 81 & 90. Thompson-El filed this

timely appeal. Dkt. No. 92.

We have jurisdiction under

. We exercise plenary review over

both the District Court’s sua sponte dismissal and its grant of summary judgment. 2 See

1 Thompson-El filed a charge of discrimination with the Delaware Department of Labor after he was terminated and subsequently received a right-to-sue letter. Dkt. Nos. 1-1 & 12. 2 To the extent Thompson-El attempts to appeal from an order entered after he filed his notice of appeal, C.A. Dkt. No. 9 at 2, we cannot review that order because he has not filed an amended notice of appeal. 2 Dooley v. Wetzel,

(3d Cir. 2020); Blunt v. Lower Merion Sch. Dist.,

(3d Cir. 2014).

On appeal, Thompson-El argues that the District Court erred in refusing to allow

his case to proceed to a jury trial. C.A. Dkt. No. 9 at 2-4. However, the District Court

had the authority to dismiss the matter at any time under certain circumstances. 3 See

(e)(2)(B). The District Court also had the authority to grant summary

judgment to the Club upon its motion, pursuant to Federal Rule of Civil Procedure 56.

See Fed. R. Civ. P. 56. Finally, the Seventh Amendment protects the right to a jury in

civil cases only where there are factual issues to be decided. See In re Peterson,

(1920). The District Court’s legal determination that a claim cannot succeed

does not usurp the fact-finding province of the jury and does not violate the Seventh

Amendment. See Christensen v. Ward,

(10th Cir. 1990).

Thompson-El also asserts on appeal that the District Court erred in granting

summary judgment in favor of the Club. C.A. Dkt. No. 9 at 3. However, we agree with

the District Court that Thompson-El failed to establish age discrimination under the

ADEA, because he presented no evidence that he was qualified to be a lifeguard or that

his replacement was sufficiently younger than he. See Hill, 455 F.3d at 247. Even if he

3 To the extent Thompson-El argues otherwise, the District Court correctly dismissed the individual defendants pursuant to § 1915(e)(2)(B)(ii), as only “employers” may be held liable under the ADEA, not individuals. See Hill v. Borough of Kutztown,

, 246 n.29 (3d Cir. 2006). 3 had, as the District Court explained, Thompson-El set forth no facts indicating that the

Club’s legitimate, nondiscriminatory reason for his termination—his poor performance

history—was pretext for age discrimination. See Martinez v. UPMC Susquehanna,

(3d Cir. 2021) (applying the McDonnell Douglas burden-shifting

framework to an age discrimination claim). On appeal, Thompson-El asserts that Club

employees lied about his performance, C.A. Dkt. No. 9 at 3 & 10, but he has not offered

any evidence from which a reasonable factfinder could rationally find the Club’s reason

for his firing “unworthy of credence.” Fuentes v. Perskie,

(3d Cir.

1994).

Accordingly, we will affirm the judgment of the District Court.

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