NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 15-2350
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STEPHANIE FAHNESTOCK,
Appellant
v.
CARLISLE REGIONAL MEDICAL CENTER
_____________________________________
On Appeal from the United States District Court for the
Middle District of Pennsylvania
(M.D. Pa. No.: 1-13-cv-01872)
District Judge: Honorable John E. Jones, III
_____________________________________
Submitted under Third Circuit LAR 34.1(a)
on July 15, 2016
(Filed: August 8, 2016)
Before: SMITH, ROTH and RENDELL, Circuit Judges.
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O P I N I O N*
____________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RENDELL, Circuit Judge,
Plaintiff-Appellant Stephanie Fahnestock, a former employee of Defendant
Carlisle Regional Medical Center (CRMC) appeals the District Court’s order granting
Defendant’s motion for summary judgment. Fahnestock brought a single claim under the
Age Discrimination and Employment Act (ADEA), alleging that her termination from
CRMC was illegal age discrimination. The District Court found that CRMC proffered a
legitimate nondiscriminatory reason for terminating her employment and that the
nondiscriminatory reason for her termination was not a pretext for age discrimination.
We will affirm the District Court’s Order.
I. Background
Throughout Fahnestock’s twenty-eight year employment with CRMC, from July
2, 1984, until April 30, 2012, she was the subject of several complaints and disciplinary
actions. In 1999, two patients filed complaints against Fahnestock, alleging unacceptable
demeanor with patients. In 2007, she was reprimanded for using inappropriate language
at the front desk while a patient was present in the waiting area. In 2008, Fahnestock
received a one-day suspension for failing to follow the proper procedure for utilizing flex
time.
Disciplinary action against Fahnestock became frequent in 2011 after a new
administration took over the radiology department at CRMC. On January 6, she was
issued a verbal warning for failing to follow the proper protocol for taking sick leave. On
May 12, she received a written warning after a patient complained that Fahnestock made
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inappropriate comments regarding the patient. On June 16, she was issued a written
warning after she risked harm to a patient by incorrectly placing a biopsy guide on a
transducer, resulting in the patient’s being placed in an incorrect position. On November
23, she received a written warning detailing several performance concerns, including two
complaints from providers regarding poor imaging quality, general customer service
problems, and three quality assurance errors. Notably, Fahnestock told a patient, without
the authority to do so, that her imaging results were normal and allowed her to leave. In
fact, the results were abnormal and indicated serious issues, and the patient had to be
contacted and admitted to the hospital. In December 2011, Fahnestock received a 62%
on her annual performance evaluation.
In April 2012, CRMC’s Human Resources Director sent an email entitled
“Termination Review” to the Regional Director of Human Resources detailing
Fahnestock’s 2011 disciplinary actions. Fahnestock was terminated several days later for
“unsatisfactory performance.” CRMC hired Emily Rex, who was twenty-three at the
time, as a replacement. She was originally hired on an as-needed basis, but she assumed
the full-time position three months after Fahnestock’s termination.
Fahnestock filed a Complaint against CRMC on July 9, 2013, alleging age
discrimination under the ADEA, 29 U.S.C.A. § 621, et seq. CRMC filed a Motion for
Summary Judgment on September 9, 2014, which the District Court granted.
II. Discussion1
1
The District Court had jurisdiction under 28 U.S.C. § 1331; we have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review over an order granting
3
Under the ADEA, it is unlawful for an employer to terminate an employee who is
at least forty years old on the basis of age. 29 U.S.C. § 623(a)(1); Fakete v. Aetna, Inc.,
308 F.3d 335, 337 (3d Cir. 2002). To prevail on an ADEA claim, the Plaintiff must show
that her age actually motivated and had a determinative influence on the employer’s
decision to terminate. Fakete, 308 F.3d at 337. A Plaintiff can meet this burden by
presenting indirect evidence of discrimination that satisfies the three-step framework
outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Fakete, 308 F.3d
at 338.
The first step under McDonnell Douglas is to show a prima facie case of
discrimination. The prima facie case for age discrimination under the ADEA requires
showing that the employee: (1) is over forty years old; (2) is qualified for the position in
question; (3) suffered an adverse employment decision; and (4) was replaced by someone
sufficiently younger to permit a reasonable inference of age discrimination. See Potence
v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). Once the prima facie case
is established, the second McDonnell Douglas step shifts the burden of production to the
employer to show a legitimate nondiscriminatory reason for the adverse employment
decision. Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If the employer
successfully provides a nondiscriminatory explanation, the burden of production returns
to the employee to demonstrate that the employer’s articulated reason was a pretext for
summary judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary
judgment is appropriate if the evidence shows “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c).
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age discrimination. Id. To show pretext, the employee must point to evidence “from
which a factfinder could reasonably either (1) disbelieve the employer’s articulated
legitimate reason[]; or (2) believe that an invidious discriminatory reason was more likely
than not a motivating or determinative cause of the employer’s action.” Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Although the evidentiary burden of production
shifts under the McDonnell Douglas framework, the burden of persuasion remains with
the Plaintiff. Id.
It is undisputed that the first two steps of the McDonnell Douglas analysis are
satisfied in this case. Fahnestock has established a prima facie case of age
discrimination, and CRMC has presented a legitimate nondiscriminatory explanation for
her termination—poor job performance as evidenced by multiple disciplinary actions.
The sole issue on appeal is whether the District Court erred when it concluded that
Fahnestock failed to show that CRMC’s reason for termination was a pretext for age
discrimination. It did not.
First, Fahnestock argues that the disciplinary actions against her were “so far
attenuated [that] no reasonable juror would believe they had any bearing on the
Defendant’s decision to terminate in 2012.” (Appellant Br. 16). She claims that CRMC
started targeting her with citations in 2011, and that it “strains credulity” that her work
“be[came] poor after decades of work with no problems.” Id. However, the facts show
that Fahnestock did not have “decades of work with no problems.” In fact, she had
disciplinary actions in 1999, 2007, and 2008. Further, even if the only reprimands she
had received were from 2011, “prior good evaluations alone cannot establish that later
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unsatisfactory evaluations are pretextual.” Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d
Cir. 1991). It is thus irrelevant that the majority of Fahnestock’s disciplinary incidents
occurred only in 2011. Fahnestock may have received more disciplinary citations in
2011 due to the change in standards and protocols following CRMC’s acquisition of a
new radiology group. As the District Court noted, Fahnestock never challenged the
veracity of the disciplinary citations themselves, indicating that they may have indeed
been legitimate, not pretextual.
Second, Fahnestock argues that the disciplinary citations produced by CRMC
constitute improper hearsay evidence because they referenced unidentified physicians
and it was undisclosed when or how the complaints were made. “Hearsay is a statement,
other than one made by the declarant while testifying at trial, offered in evidence to prove
the truth of the matter asserted.” United States v. Sallins, 993 F.2d 344, 346 (3d Cir.
1993); Fed. R. Evid. 801(c). The citations in this case do not constitute hearsay because
they were not offered as evidence to prove the truth of the matter asserted. The
documents were being offered to explain CRMC’s motivation for terminating
Fahnestock’s employment, not to assert the truth of the statements therein. See, e.g.,
Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (“such documents are relevant and
admissible because they help explain . . . the employer’s conduct.”). The disciplinary
citations are thus admissible and were properly considered on summary judgment.
Finally, Fahnestock argues that a reasonable jury could determine that CRMC’s
explanation her termination was pretextual given the “wholly inadequate explanation for
her replacement by Emily Rex.” (Appellant Br. 18). She alleges that the circumstances
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surrounding Rex assuming the position full-time, when the original plan was to hire Rex
on an as-needed basis, present a dispute of material fact for trial. Id.
This argument is mere speculation, and speculation does not create a genuine issue
of fact. See Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333 (3d Cir. 2005).
Further, the circumstances surrounding the hiring of a replacement is irrelevant to
CRMC’s initial motivation behind terminating Fahnestock. A reasonable jury could thus
determine that CRMC’s explanation was not pretextual, even considering the allegedly
inadequate explanation for the commencement of Rex’s employment.2
III. Conclusion
Fahnestock failed to show pretext because she did not provide evidence from
which a reasonable factfinder could disbelieve CRMC’s articulated legitimate reason for
termination, and has failed to show that age discrimination was more likely than not a
motivating cause of CRMC’s decision to terminate. See Fuentes, 32 F.3d at 764. Thus,
we will affirm the District Court’s order granting CRMC’s motion for summary
judgment.
2
Fahnestock also argues that the citations violate Fed. R. Civ. P. 26(a)(1)(A)(i)
and 37(c)(1) because the identities of the physicians were never disclosed. This argument
was not raised before the District Court; thus, it has been waived.
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