NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 22-3259 ___________

RONDABAY LIGGINS-MCCOY, Appellant

v.

DEMOCRATIC CAUCUS OF THE SENATE OF PENNSYLVANIA; ANTHONY H. WILLIAMS, in his individual capacity only ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-19-cv-01639) District Judge: Honorable Mark A. Kearney ____________

Submitted Under Third Circuit LAR 34.1(a) October 26, 2023

Before: HARDIMAN, FREEMAN, and MONTGOMERY-REEVES, Circuit Judges.

(Filed: December 6, 2023)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Rondabay Liggins-McCoy appeals the District Court’s summary judgment

denying her claims for: (1) disability discrimination under the Rehabilitation Act and

(2) age discrimination under the Pennsylvania Human Relations Act. We will affirm.

I

Liggins-McCoy is a 64-year-old woman who worked as a constituent services

staffer for State Senator Anthony Williams until her employment was terminated on

January 4, 2019. During her eleven years in Senator Williams’ office, Liggins-McCoy’s

duties included event planning, liaising with community leaders, and “performing

constituent services work.” App. 512. Though Senator Williams was Liggins-McCoy’s

supervisor, her employer was the Democratic Caucus of the Pennsylvania Senate.

In 2017, Liggins-McCoy was diagnosed with cancer and began treatments. This

caused her to miss work sometimes, which created a staffing shortage at one of Senator

Williams’ offices. Several times Liggins-McCoy applied for and received leave time

under the Family and Medical Leave Act (FMLA), with her final request approved in a

letter dated December 4, 2018. The next day, Senator Williams’ then-Chief of Staff,

accompanied by a Democratic Caucus human resources representative, told Liggins-

McCoy that her position was being eliminated in an office reorganization.

After she was terminated, Liggins-McCoy sued the Democratic Caucus and

Senator Williams. In relevant part, she claimed that the Caucus committed disability

discrimination in violation of the Rehabilitation Act (Rehab Act),

, and

that Senator Williams aided and abetted the Caucus’s age discrimination in violation of 2 the Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. § 955(e). The District Court

entered a summary judgment against Liggins-McCoy, holding that sovereign immunity

barred the Rehab Act claim against the Caucus and that Liggins-McCoy failed to

establish an underlying PHRA violation by the Caucus for Senator Williams to aid and

abet.1 This timely appeal followed.

II2

Liggins-McCoy makes two arguments on appeal. First, she contends that her

Rehab Act claim is not barred by Eleventh Amendment sovereign immunity because the

Democratic Caucus waived immunity for such claims. Second, she argues that naming

the Caucus as a PHRA defendant was unnecessary to bring a § 955(e) aider and abettor

claim against Senator Williams. We address each argument in turn.

A

Liggins-McCoy argues that the Democratic Caucus waived sovereign immunity

from Rehab Act claims, and the District Court’s finding to the contrary was erroneous.

But she failed to establish that the Democratic Caucus was a “program or activity . . .

receiv[ing] federal financial assistance,” Strathie v. Dep’t of Transp.,

, 230

1 Liggins-McCoy also brought a claim against Senator Williams arising under the FMLA. This claim was tried before a jury, resulting in a verdict for Senator Williams. Liggins- McCoy does not challenge that verdict on appeal.

2 The District Court had federal question jurisdiction over the Rehab Act claim under

and supplemental jurisdiction over the PHRA claim under

(a). We have jurisdiction under

. We review the summary judgment against Liggins-McCoy de novo, applying the same standard as the District Court. Faush v. Tuesday Morning, Inc.,

(3d Cir. 2015). 3 (3d Cir. 1983) (emphasis added), a burden she must satisfy to prevail “not only . . . [in]

an Eleventh Amendment immunity inquiry, but also in order to make out a prima facie

case under the [Rehab Act],” Haybarger v. Lawrence Cnty. Adult Prob. & Parole,

, 198 n.3 (3d Cir. 2008). The evidence Liggins-McCoy offers on this score falls

short of the mark.

Liggins-McCoy contends that the Caucus waived sovereign immunity when the

Pennsylvania legislature distributed $1 billion in federal COVID-19 relief funds. But the

text of the Rehab Act permits federal suit only where the state “program or activity

receiv[es] Federal financial assistance,”

(a) (emphasis added), not where

it merely distributes funds.3 Thus, sovereign immunity is generally waived as to programs

or activities receiving funding, not those states or state entities distributing the funding.

See Koslow v. Pennsylvania,

, 171–72 (3d Cir. 2002). The record shows that

the Caucus did not receive or use any federal COVID-19 funds for its own benefit. As the

District Court aptly noted, the state budget for Fiscal Year 2021–22 indicates that

COVID-19 relief funds were allocated to other programs and agencies, not the Caucus

itself.

3 The District Court also rejected the contention that the Caucus waived sovereign immunity because the COVID-19 relief funds were not appropriated until two years after Liggins-McCoy’s termination. Because no evidence shows that the Caucus received any federal financial assistance, we need not decide whether funds must be received at the time of the alleged discrimination.

4 Even if we accepted Liggins-McCoy’s contention that state entities can waive

sovereign immunity by distributing federal funds, her claim still fails. The only entities

with a conceivable role in distributing the COVID-19 relief funds are the Pennsylvania

General Assembly which votes on the state budget and the Governor who enacts the

budget, not the Democratic Caucus—which is but one-half of one house of the state

legislature.

In sum, “viewing all facts in the light most favorable” to Liggins-McCoy, there is

no evidence supporting a waiver of sovereign immunity. United States v. Care Alts.,

(3d Cir. 2020). So we agree with the District Court that the Eleventh

Amendment bars Liggins-McCoy’s Rehab Act claim against the Democratic Caucus.

B

Liggins-McCoy also contends that the District Court erroneously rejected her

aiding and abetting claim against Senator Williams because she did not name the Caucus

as a PHRA defendant. While we have never held that pursuing a § 955(e) aider and

abettor claim against a supervisor requires joining the employer as a named defendant,

Liggins-McCoy mischaracterizes the District Court’s reasoning. The Court did not grant

summary judgment only because Liggins-McCoy failed to name the Caucus as a

defendant. Rather, the Court noted Liggins-McCoy’s failure to “address any primary

violation by the Democratic Caucus.” App. 23.

Liggins-McCoy presents nothing to undermine the District Court’s conclusion,

and we agree that her failure to offer evidence supporting a primary PHRA violation by

the Caucus dooms her § 955(e) claim against Senator Williams. See Jones v. Se. Pa. 5 Transp. Auth.,

(3d Cir. 2015) (“[L]iability as an aide[r] and abett[or]

under the PHRA hinges on [the employer’s] liability.”) (internal quotations omitted). For

starters, Liggins-McCoy’s brief opposing summary judgment cited no evidence

supporting a finding of age discrimination by the Caucus. On appeal, Liggins-McCoy

insists that she “did present the record evidence and argument” supporting age

discrimination by the Caucus. In fact, her brief below argued only that Senator Williams

and his staff engaged in age discrimination and did not explain why those actions should

be imputed to the Caucus.

The three exhibits Liggins-McCoy cited in this section of her brief also failed to

show that the Caucus committed a primary violation of the PHRA. The first exhibit was

an excerpt from the deposition of Rudolph Taylor, a staffer of Senator Williams who

assumed some of Liggins-McCoy’s duties after her termination, establishing Taylor’s

date of birth. The second and third exhibits were an excerpt from Liggins-McCoy’s

deposition and the age discrimination charge she filed with the Pennsylvania Human

Relations Commission, both claiming that a Caucus representative was on the call when

Senator Williams’ staff notified Liggins-McCoy that her position was being eliminated.

The District Court correctly held that these facts were insufficient to show that the

Caucus committed a primary violation of the PHRA. That a Caucus representative was

present during this meeting, without more, does not establish that the Caucus

discriminated against Liggins-McCoy because of her age. To the extent that this was any

evidence at all, “more than a mere scintilla of evidence” was required to defeat summary

judgment. Williams v. Borough of W. Chester,

(3d Cir. 1989). 6 Thus, despite acknowledging her burden of “establish[ing] a cognizable predicate

offense against the Caucus in order to hold Williams liable as an aider/abettor,” Liggins-

McCoy Reply Br. 1, Liggins-McCoy did not present sufficient evidence on this “essential

element of her case with respect to which she has the burden of proof” at the summary

judgment stage.4 Kost v. Kozakiewicz,

(3d Cir. 1993).

* * *

For the reasons stated, we will affirm the judgment of the District Court.

4 Williams urges affirmance on other grounds, arguing that our opinion in Jones,

, holds that sovereign immunity for an employer bars PHRA aiding and abetting claims against supervisory employees. We need not address that claim because Liggins-McCoy failed to adduce facts supporting a PHRA violation by the Democratic Caucus. See United States ex rel. Spay v. CVS Caremark Corp.,

(3d Cir. 2017) (“[The Court of Appeals] can affirm the District Court’s grant of summary judgment on any basis supported by the record.”). 7