Stephanie Fahnestock v. Carlisle Regional Medical Cent ( 2016 )


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  •                                                                  NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 15-2350
    _____________
    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.
    ____________
    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
    2
    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).
    4
    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
    5
    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
    6
    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.
    7