2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2013

Mary Burton v. Teleflex Inc

Precedential or Non-Precedential: Precedential

Docket No. 11-3752

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3752

_____________

MARY BURTON,

Appellant

v.

TELEFLEX INCORPORATED; TELEFLEX MEDICAL 

INCORPORATED; SPECIALIZED MEDICAL DEVICES,

LLC; EDWARD BOARINI; SEAN O‟NEILL

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA 

(D.C. Civil No. 5:09-cv-2684)

District Judge: Honorable Edmund V. Ludwig

______________

Argued September 20, 2012

______________
2

Before: AMBRO, GREENAWAY, JR., and O‟MALLEY,*

Circuit Judges.

(Opinion Filed: February 20, 2013)

Nina B. Shapiro, Esq. (Argued)

53 North Duke Street

Suite 201

Lancaster, PA 17602

Counsel for Appellant Mary Burton

David S. Fryman, Esq. (Argued)

Alexandra Bak-Boychuk, Esq.

Ballard Spahr

1735 Market Street

51st Floor

Philadelphia, PA 19103

Counsel for Appellees Teleflex, Inc., Teleflex Medical 

Inc., Specialized Medical Devices LLC, Edward 

Boarini, Sean O’Neill

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

 

* Honorable Kathleen M. O‟Malley, United States Court of 

Appeals for the Federal Circuit, sitting by designation.
3

Appellant Mary Burton (“Burton”) alleges that her 

employer, Teleflex Inc. (“Teleflex”),1terminated her 

employment in violation of the Age Discrimination in 

Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Title 

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 

2000e et seq. Burton also alleges various state law 

discrimination, contract, and tort claims against Teleflex.

Teleflex claims that it did not terminate Burton‟s 

employment, but that she in fact resigned her position. The 

United States District Court for the Eastern District of 

Pennsylvania granted summary judgment in favor of Teleflex 

on Burton‟s discrimination claims, finding that Burton had 

resigned, and that even if she had not, she could not 

demonstrate that Teleflex‟s purported justification for sending 

her the letter “accept[ing her] resignation” was pretextual. 

The District Court also granted summary judgment to 

Teleflex on all of Burton‟s state law claims. Because the 

record clearly demonstrates that a dispute of material fact 

exists as to whether Burton resigned or was terminated, we 

vacate the District Court‟s grant of summary judgment on 

Burton‟s discrimination claims and breach of contract claim. 

We affirm the grant of summary judgment on Burton‟s claims 

for breach of the covenant of good faith and fair dealing, 

 

1 Unless otherwise specified, our reference to Teleflex 

throughout the opinion is a collective reference to all five 

Defendants in this case, including Teleflex Inc., Teleflex 

Medical Inc., Specialized Medical Devices LLC (collectively, 

the “Corporate Defendants”), Edward Boarini, and Sean 

O‟Neill. 
4

wrongful interference with contractual relations, and 

defamation. 

I. BACKGROUND

Burton was the founder of two companies that 

manufactured and distributed medical device parts. She 

founded HDJ during the 1960‟s and formed Specialized 

Medical Devices (“SMD”) in 1993. Burton served as the 

companies‟ President, and her son Edward Burton 

(“Edward”) was the General Manager and Vice President. By 

2006, the companies grew to employ approximately 140 

people and generated an annual revenue of $14 million. In 

2007, Burton sold HDJ and SMD to Teleflex Inc. After 

acquiring the companies, Teleflex discontinued the HDJ 

division and incorporated SMD into the Teleflex Medical 

OEM business.

As part of the transaction, Burton and Edward each 

entered into a separate two-year long employment agreement 

with Teleflex. Burton‟s employment agreement (the 

“Employment Agreement” or “Agreement”) provided that she 

could terminate her employment with Teleflex by providing 

written notice at least thirty days before her termination 

would become effective. This is the only provision regarding 

Burton‟s authority to terminate the Agreement. On the other 

hand, Teleflex could terminate Burton in one of two ways. 

First, it could fire Burton without cause by providing written 

notice at least thirty days before her termination would 

become effective. Second, Teleflex could fire Burton for 

cause, upon written notice.2 Under the Employment 

 

2

The Employment Agreement defines “cause” as (1) the 

failure to perform an obligation under the agreement, after 
5

Agreement, Burton would be entitled to severance if Teleflex 

terminated her without cause.

Burton, age sixty-seven at the time of the sale, became 

Vice President of New Business Development at SMD. Her 

duties included directing and supervising the sales department 

at SMD, overseeing the customer service of existing 

accounts, developing new business, and preparing price 

quotations for customers. Burton had performed these same 

duties at SMD prior to the sale to Teleflex.

From the fall of 2007 until the end of her employment 

with Teleflex, Burton was supervised by Edward Boarini

(“Boarini”), Senior Vice President and General Manager of 

Teleflex Medical OEM. Burton and Boarini had a strained 

professional relationship, and communication between the 

two was infrequent.3 As Vice President of New Business 

 

notice and an opportunity to cure; (2) conduct that would hold 

the Company in disrepute or scandal; (3) failure to follow 

lawful directions of the Board; (4) breach of fiduciary duty to 

the Company; or (5) gross neglect of the employee‟s duties, 

or any act of theft or dishonesty. 

3 Burton traveled frequently as part of her job with Teleflex. 

Moreover, Boarini did not work in the same office as Burton. 

Both of these factors contributed to their infrequent 

interactions. Burton further claims that Boarini excluded her 

from business communication and sales meetings, and that he 

did not evaluate her performance or prepare a performance 

appraisal for her. Although Boarini claims that he had

difficulty communicating with Burton and that she did not 
6

Development, Burton supervised the sales department for 

SMD. However, in February or March 2008, Dave Faris 

(“Faris”), a male in his forties, was transferred from another 

Teleflex division to be the director of sales for SMD, and the 

sales team then began reporting to him instead of Burton. 

Boarini acknowledged that “sales leadership . . . was a duty 

[of Burton‟s] that was removed.” (App. 504.) Boarini also 

told Faris “to work very closely with [Burton]” and to learn 

from her. (App. 738; see also App. 373-74, 505.)

The problems between Burton and Boarini came to a 

head on June 3, 2008. That day, the two attended a medical 

device trade show in Manhattan. Boarini stated that he 

intended to discuss with Burton her lack of communication 

and undefined performance objectives. At their depositions, 

both parties recounted their version of the conversation.

Burton testified about the encounter:

[A]nd I came up to Ed [Boarini] and I said, I 

asked him when he wanted to get together 

because he had talked to me on the phone the 

previous Friday and mentioned that he wanted 

to meet with me.

So when I got there I went to him and 

asked him when did he want to get together and 

he couldn‟t really even look me in the face. He 

said, Oh, well, he was going to be really busy, 

 

clearly define her performance objectives, it is undisputed 

that Boarini never informed Burton of any performance 

issues.
7

he had all these customers he had to see, he 

didn‟t have time that day, he didn‟t think he 

would have any time the next day, he was too 

busy, and then he talked about maybe I can give 

you ten minutes or so on Thursday, and I said, 

you know, I made all my appointments to be 

later because I thought you were very specific 

about wanting to get together with me, and he 

was just kind of treating me like I wasn‟t even 

there and he was treating me like a useless old 

woman and just like I wasn‟t there, and he 

couldn‟t come up with any answer. It was like 

what do you mean I want to see you.

I mean, he just was pretty much just 

trying to get rid of me. And I finally pressed it, 

I said, are you asking for me to resign? Do you 

want me to resign? That‟s what I said to him. 

Do you want me to resign?

He said, Oh, no, no, we want you here 

for a long time to come and he was like, Oh, no, 

no, that‟s not what I mean at all. We need you. 

We want you for a long time.

And I don‟t know if too much more 

happened right at that moment, but I started to 

walk away and shortly thereafter he said to me, 

he said, I think you should think about that.

(App. 137.)
8

Boarini‟s testimony was fairly consistent with 

Burton‟s account:

I had gone there with every intention to try to 

have a dialogue with Mary Burton and 

determine what she wanted to do with the 

business because she had not had any progress 

on her performance objectives or any kind of 

dialogue. And within a few minutes of talking 

to her about setting up a time to have that 

conversation, she resigned. . . .

She asked me if I wanted her to resign. I 

said, no. Wait. Let‟s talk through this. Let‟s 

have a dialogue. Let‟s understand what we can 

do because we knew — I felt the relationship 

with her was not working to the betterment of 

the business.

And twice she said, do you want me to 

resign? And I said, no. The third time is when 

I said, maybe you should think about retiring. 

That‟s when she decided to resign.

(App. 185.)

Despite Boarini testifying that Burton resigned at the 

end of their conversation, he acknowledged that Burton never 

explicitly said that she was resigning. As Boarini recalled, 

the conversation ended when Burton disengaged and walked 

away. However, two other Teleflex employees at the trade 

show, Faris and Jack Fulton (“Fulton”), claimed that Burton 

informed them on June 3, 2008, that she had resigned when 
9

she returned to the Teleflex booth after her conversation with 

Boarini. These two employees then told Boarini that Burton 

had resigned. Based on his conversation with Burton, and the 

accounts of Faris and Fulton, Boarini determined that Burton 

had resigned.

The next day, Wednesday, Burton met with Faris to 

discuss a work-related matter. Burton did not return to 

Teleflex‟s booth on Wednesday or Thursday, the latter of

which she claimed was because she was upset about the 

conversation with Boarini. On Friday, Burton left on a oneweek vacation that she had scheduled several weeks prior to 

the incident with Boarini‟s knowledge and approval.

It is unclear if Burton had any contact with the office 

while she was away on vacation.4 On the day that she was 

scheduled to return to work, June 16, 2008, Burton received a 

letter from Sean O‟Neill (“O‟Neill”), Vice President of 

Global Human Relations for Teleflex Medical, stating that 

Teleflex was formally “accept[ing her] resignation.” (App. 

211.) Even though Burton was not entitled to severance in 

the event that she resigned, the letter stated that Burton would 

receive six months‟ severance if she extended the noncompetition and non-solicitation clauses in her Employment 

 

4 Burton testified at her deposition that she could not recall if 

she called the office regarding work while she was away. 

However, in her Verified Statement, Burton claimed that she 

did call while she was away and that she was told her calls 

would not be patched through. Edward Burton‟s deposition 

testimony also discussed this happening.
10

Agreement. The severance was also conditioned on her 

releasing Teleflex from any liability relating to her 

employment. O‟Neill later testified that he determined that 

Burton had resigned in reliance on Boarini‟s assessment and 

the statements from other employees that Burton had told 

them she resigned.

On June 16, 2008, the same day as O‟Neill‟s letter to 

Burton, Teleflex sent a letter to its customers stating that 

Burton “decided to leave the company to pursue other 

opportunities.” (App. 436.) Boarini emailed Teleflex 

employees the next day, June 17, 2008, to tell them that 

Burton had left the company “to pursue other opportunities.” 

(App. 236.)

Burton claims that she was in disbelief when she 

received the letter from O‟Neill, because she did not resign. 

Burton reached out to her lawyer, but at no point did she ever 

personally contest the letter or her termination with anyone at 

Teleflex. All of her communication with Teleflex was 

conducted through her lawyer, Michael Jarman. 

Additionally, Burton never attempted to return to work. 

Instead, through her attorney, Burton tried to negotiate the 

terms of her separation from Teleflex. Negotiations broke 

down, however, and no agreement was reached.

Burton‟s employee file at Teleflex reflects that she was 

removed from payroll on June 17, 2008. However, in the 

space on the form asking the reason for the change in status, 

in which “quit without notice,” “retired,” and “resigned” were 

all options, none of the corresponding boxes was checked. 

Instead, the form was filled out to state that she “[l]eft [the] 

co[mpany] to pursue other opportunities.” (App. 433.) 

Teleflex does not dispute that Burton never explicitly said to 
11

Boarini that she was resigning, nor does it dispute that she 

never submitted a letter of resignation, despite the 

requirement in her Employment Agreement that she do so.

 Following the breakdown of the negotiations, Burton 

filed suit in the District Court for the Eastern District of 

Pennsylvania alleging several claims against Teleflex: (1) 

age discrimination under the ADEA; (2) gender 

discrimination under Title VII; (3) age and gender 

discrimination under the Pennsylvania Human Relations Act 

(PHRA), 43 Pa. Const. Stat. § 951 et seq.; (4) breach of 

contract; (5) breach of the covenant of good faith and fair 

dealing; (6) wrongful interference with contractual relations; 

and (7) defamation.5 Teleflex moved for summary judgment. 

On September 29, 2011, the District Court granted summary 

judgment in favor of Teleflex on all of Burton‟s claims, in an 

order without memorandum opinion. The District Court 

issued its Memorandum Opinion on November 2, 2011. 

Burton v. Teleflex, No. 09-CV-2684, 2011 WL 5237709 (E.D. 

Pa. Nov. 2, 2011).

On October 6, 2011, Burton filed a timely notice of 

appeal from the District Court‟s Order granting Teleflex‟s 

motion for summary judgment.

 

5 Burton brings her ADEA and Title VII claims against the 

Corporate Defendants only, her PHRA claim against all 

Defendants, her breach of contract and breach of the duty of 

good faith and fair dealing claims against only the Corporate 

Defendants, and her wrongful interference with contract and 

defamation claims against only Boarini and O‟Neill.
12

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. §§ 

1331 and 1367. We have jurisdiction under 28 U.S.C. § 

1291. We exercise plenary review over the District Court‟s 

grant of summary judgment and apply the same standard that 

the District Court would apply. Howley v. Mellon Fin. Corp., 

625 F.3d 788, 792 (3d Cir. 2010). A grant of summary 

judgment is appropriate where the moving party has 

established “that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a).6 A fact is material if it 

might affect the outcome of the suit under the governing law. 

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher 

Educ., 470 F.3d 535, 538 (3d Cir. 2006). 

Where the defendant is the moving party, the burden is 

on the defendant to show that the plaintiff has failed to 

establish one or more essential elements of her case. Hugh v. 

Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). 

The reviewing court should view the facts in the light most 

favorable to the non-moving party and draw all reasonable 

inferences in that party‟s favor. Scheidemantle, 470 F.3d at 

538. However, to prevail on a motion for summary judgment,

 

6

Federal Rule of Civil Procedure 56 was revised in 2010. 

The standard previously set forth in subsection (c) is now 

codified as subsection (a). The language of this subsection is 

unchanged, except for “one word — genuine „issue‟ bec[ame] 

genuine „dispute.‟” Fed. R. Civ. P. 56 advisory committee‟s 

note (2010 amend).
13

“the non-moving party must present more than a mere 

scintilla of evidence; „there must be evidence on which the 

jury could reasonably find for the [non-movant].‟” Jakimas v. 

Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007) 

(alteration in original) (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 252 (1986)). 

III. ANALYSIS

Burton argues that the District Court erred in granting 

summary judgment to Teleflex. She claims that the District 

Court improperly made credibility determinations as to the 

evidence before it, did not consider all of Burton‟s evidence, 

and gave undue credit to Teleflex‟s version of the facts. The 

central issue on appeal is the factual question of whether 

Burton resigned from Teleflex or whether she was terminated. 

Because we believe there is a genuine dispute as to this 

question and believe resolution of that dispute may be 

determinative of Burton‟s breach of contract and 

discrimination claims, we vacate the grant of summary 

judgment on those claims. 

Burton has not demonstrated disputes of material fact 

as to her remaining state law claims. As such, summary 

judgment was properly granted on her claims for breach of 

the duty of good faith and fair dealing, wrongful interference 

with contract, and defamation. 
14

A. Age and Gender Discrimination Claims

1. Legal Standards for Establishing 

Employment Discrimination

The ADEA and Title VII prohibit discrimination on 

the basis of age and sex, respectively.7 Because Burton has 

not provided direct evidence of discrimination, our inquiry 

under both statutes is governed by the three-part framework 

established in McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 802-03 (1973). See Smith v. City of Allentown, 589 F.3d 

684, 691 (3d Cir. 2009) (reaffirming the use of the 

McDonnell Douglas standard in ADEA cases involving 

indirect evidence); Scheidemantle, 470 F.3d at 538-39 

(applying McDonnell Douglas standard to Title VII gender 

discrimination claim concerning indirect evidence). 

Under the first step in the McDonnell Douglas

analysis, the plaintiff bears the burden of making out a prima 

facie case of discrimination. Scheidemantle, 470 F.3d at 539. 

To establish a prima facie case of age discrimination under 

the ADEA, Burton must make a showing that: (1) she is forty 

years of age or older; (2) the defendant took an adverse 

employment action against her; (3) she was qualified for the 

 

7

The ADEA prohibits employers from discriminating against 

individuals in hiring, discharge, compensation, terms, 

conditions, or privileges of employment on the basis of their 

age. See 29 U.S.C. § 623(a)(1). Title VII likewise prohibits 

employers from discriminating against individuals on the 

basis of their race, color, religion, sex, or national origin. See 

42 U.S.C. § 2000e-2(a)(2).
15

position in question; and (4) she was ultimately replaced by 

another employee who was sufficiently younger to support an 

inference of discriminatory animus. Smith, 589 F.3d at 689. 

To make a showing of a prima facie case of gender 

discrimination under Title VII, Burton must show that: (1) 

she was a member of a protected class; (2) she was qualified 

for the position; (3) she suffered an adverse employment 

action; and (4) members of the opposite sex were treated 

more favorably. Hugh, 418 F.3d at 267 (citing McDonnell 

Douglas, 411 U.S. at 802-03). A plaintiff may also meet the 

last element by showing that the adverse employment action 

“occurred under circumstances that could give rise to an 

inference of intentional discrimination.” Makky v. Chertoff, 

541 F.3d 205, 214 (3d Cir. 2008). 

To establish a prima facie case at summary judgment, 

“the evidence must be sufficient to convince a reasonable 

factfinder to find all of the elements of [the] prima facie 

case.” Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir. 

2001) (alteration in original) (internal quotation marks 

omitted). If a plaintiff fails to raise a genuine dispute of 

material fact as to any of the elements of the prima facie case, 

she has not met her initial burden, and summary judgment is 

properly granted for the defendant. See Geraci v. MoodyTottrup, Int’l, Inc., 82 F.3d 578, 580 (3d Cir. 1996). 

Once the plaintiff makes out her prima facie case, “the 

burden of production [then] shifts to the defendant to offer a 

legitimate non-discriminatory [justification] for the adverse 

employment action.” Smith, 589 F.3d at 690; see also 

Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 

644 n.5 (3d Cir. 1998). This burden is “„relatively light‟” and 

is satisfied if the employer provides evidence, which, if true, 
16

would permit a conclusion that it took the adverse 

employment action for a non-discriminatory reason. Tomasso 

v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (quoting 

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see also 

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 

302 (3d Cir. 2012) (describing this step as a “minimal 

burden”). At this stage, “the defendant need not prove that 

the articulated reason actually motivated its conduct.” 

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d 

Cir. 2003) (internal quotation marks omitted). 

The third step in the McDonnell Douglas analysis

shifts the burden of production back to the plaintiff to provide 

evidence from which a factfinder could reasonably infer that 

the employer‟s proffered justification is merely a pretext for 

discrimination. Fuentes, 32 F.3d at 764-65; see also Sarullo 

v. U.S. Postal Serv., 352 F.3d 789, 799-800 (3d Cir. 2003). 

The plaintiff must make this showing of pretext to defeat a 

motion for summary judgment. Doe v. C.A.R.S. Prot. Plus, 

Inc., 527 F.3d 358, 364 (3d Cir. 2008) (explaining that, “to 

defeat a motion for summary judgment, [the plaintiff] must 

show that the employer‟s articulated reason was a pretext for 

intentional discrimination”). To make a showing of pretext, 

“the plaintiff must point to some evidence, direct or 

circumstantial, from which a factfinder could reasonably 

either (1) disbelieve the employer‟s articulated legitimate 

reasons; or (2) believe that an invidious discriminatory reason 

was more likely than not a motivating or determinative cause 

of the employer‟s action.” Fuentes, 32 F.3d at 764. 

The plaintiff‟s evidence, if it relates to the credibility 

of the employer‟s proffered justification, “must demonstrate 

such weaknesses, implausibilities, inconsistencies, 
17

incoherencies, or contradictions in the employer‟s proffered 

legitimate reasons for its action that a reasonable factfinder 

could rationally find them „unworthy of credence.‟” Fuentes, 

32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 531 (3d Cir. 1992)). As we have

explained, if a plaintiff has come forward with sufficient 

evidence to allow a finder of fact to discredit the employer‟s 

proffered justification, she need not present additional 

evidence of discrimination beyond her prima facie case to 

survive summary judgment. See Fuentes, 32 F.3d at 764; 

Fasold v. Justice, 409 F.3d 178, 185 (3d Cir. 2005). This is 

because the factfinder may infer from the combination of the 

prima facie case, and its own rejection of the employer‟s 

proffered reason, that the employer engaged in the adverse 

employment action for an invidious reason. Fuentes, 32 F.3d 

at 764; see also Reeves v. Sanderson Plumbing Prods., Inc., 

530 U.S. 133, 147 (2000) (“Proof that the defendant‟s 

explanation is unworthy of credence is simply one form of 

circumstantial evidence that is probative of intentional 

discrimination, and it may be quite persuasive.”). The 

plaintiff is therefore not required to produce direct evidence 

of discriminatory intent to demonstrate pretext and survive a 

motion for summary judgment. 

2. District Court Opinion on 

Discrimination Claims

The District Court first determined that, even in the 

light most favorable to Burton, the evidence weighed in favor 

of a finding that she had resigned, and had not been 

terminated. Burton, 2011 WL 5237709, at *3 n.7. Because a 

plaintiff must suffer an adverse employment action to state a 

prima facie case of employment or gender discrimination, the 
18

District Court could have based its grant of summary 

judgment on its conclusion that Burton had suffered no 

adverse employment action. See Duffy, 265 F.3d at 171 

(affirming the district court‟s grant of summary judgment 

because the plaintiff “did not produce evidence from which a 

reasonable jury could find an adverse employment action, 

which is a prerequisite to a successful age discrimination 

claim”). 

However, the District Court presumed, for purposes of 

summary judgment, that Burton had stated a prima facie case, 

and proceeded to conduct the McDonnell Douglas burden 

shifting analysis. It determined that Teleflex had proffered a 

legitimate non-discriminatory reason for sending Burton the 

resignation letter — namely, that Teleflex reasonably 

believed that Burton had resigned. Burton, 2011 WL 

5237709, at *3. Under this analysis, the burden then shifted 

to Burton to demonstrate that Teleflex‟s justification for 

sending her the letter was pretextual. The District Court 

determined that none of the evidence proffered by Burton 

“call[ed] into question Boarini‟s or O‟Neill‟s belief that [she 

had] resigned,” or created a “triable issue that discriminatory 

animus existed and was a moving factor behind Teleflex‟s 

[actions].” Id. at *5. The District Court therefore granted 

summary judgment for Teleflex on Burton‟s age and gender 

discrimination claims.

As explained below, the District Court erred by finding 

that there was no dispute of fact as to whether Burton 

resigned or was terminated. Because the District Court‟s 

determination that Burton resigned improperly impacted its 

pretext analysis, we vacate the grant of summary judgment 

and remand for further proceedings.
19

3. Dispute of Material Fact Relating to 

Burton’s Separation from Teleflex

Contrary to the District Court‟s determination, Burton 

has proffered evidence from which a factfinder could 

conclude that Teleflex terminated her. Burton maintains that 

she did not resign from Teleflex, and that she never told 

anyone that she had resigned. In fact, no Teleflex employee 

ever confirmed with Burton that she had actually resigned 

before Teleflex “accepted [her] resignation.” (App. 211; see 

also App. 553-54, 797.) Instead of verifying whether Burton 

intended to resign, the company mailed her a letter on June 

16, 2008, when she returned from her vacation, notifying her 

that it was accepting her resignation. The author of the letter, 

Sean O‟Neill, said that he determined that Burton had 

resigned based on Boarini‟s assessment and the statements of 

other employees.

At his deposition, Boarini admitted that Burton never 

said that she was resigning. Moreover, Teleflex 

acknowledged that Burton never submitted a resignation letter 

or formally notified the company in any way that she was 

resigning despite the fact that Burton‟s employment 

agreement provided that she must provide written notice to 

the company at least 30 days before her resignation is to be 

effective. As we pointed out at oral argument, there is no 

evidence that Burton ever said she was resigning to anyone 

above her in the chain of command. Boarini also admitted 

that he did not contact Burton after the incident on June 3, 
20

2008 to confirm that she resigned or to ask her for a letter of 

resignation.8 

According to Boarini, Faris and Fulton told him on 

June 3, 2008, that Burton had told them that she resigned. 

The District Court credited the testimony of these employees 

in deciding that Burton had in fact resigned. However, the 

court did not credit the testimony of Burton herself, who 

denied having told anyone that she resigned. Nor did the 

District Court consider the conflicting testimony of Edward 

Burton, who spoke to Burton subsequent to her conversation 

with Boarini. They discussed Burton‟s conversation with 

Boarini, but Edward claimed that Burton said nothing about 

having resigned or having been fired. Edward testified that 

Burton continued to work after June 3, 2008, and that 

sometime before June 16, 2008, Burton called the office to 

send in quotes and was told by the receptionist that her call 

could not be put through. By crediting the testimony of the 

Teleflex employees and disregarding the Burtons‟ conflicting 

testimony, the District Court improperly made credibility 

determinations, which it may not do at summary judgment. 

See Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) 

(noting that at summary judgment “[t]he court may not . . . 

weigh the evidence or make credibility determinations 

because these tasks are left for the fact finder” (internal 

quotation marks omitted)).

 

8 He also testified, however, that he had no cell phone number 

for Burton, and did not know how to reach her after the June 

3, 2008 incident.
21

Several other pieces of evidence are relevant to the 

issue of whether Burton resigned or was terminated. First, in 

Burton‟s personnel file, on a form indicating that she was no 

longer to be paid by Teleflex, the boxes indicating that she 

either “quit without notice,” “resigned,” or “retired” were not 

checked. (App. 433, 466-67, 810.) Instead, the form was 

completed to say: “[l]eft co[mpany] to pursue other 

opportunities.” (App. 433, 809.) At her deposition, Teleflex 

Human Resources Director Margie Heilig (“Heilig”) 

conceded that she could not state from where she got that 

information because it involved a conversation with an 

attorney. Boarini testified that he had “no idea” why the form 

was filled out in that particular way.

Second, approximately one month prior to Burton‟s 

confrontation with Boarini at the trade show, Boarini and two 

other Teleflex employees were emailing about the departure 

of Edward Burton from Teleflex. At one point, the email 

chain shifts to discussing Burton. An official at Teleflex, Tim 

Kelleher (“Kelleher”), tells Boarini and another employee in 

an email: “I also talked to [Edward] about [Burton] and the 

lack of communication and sharing of information and our 

concerns about her after he leaves. He has agreed to facilitate 

a three way conversation between [Edward], [Burton] and me 

to get her to play ball.” (App. 413 (emphasis added).) 

Kelleher, the drafter of the email, testified that his reference 

to getting Burton to play ball merely meant that he wanted 

Edward to discuss with Burton her lack of communication. 

While that is certainly a plausible explanation, it is equally 

plausible that a reasonable juror could perceive the comment 

as a reference to pushing Burton out of the company.
22

Third, the District Court also cited “plaintiff‟s conduct 

after receipt of the June 16, 2008 letter” as a reason for 

finding that Burton had resigned. Burton, 2011 WL 5237709, 

at *3 n.7. The District Court claimed that “plaintiff made no 

protest that the resignation had not occurred.” Id. at *4. 

Boarini testified that he and others at Teleflex were surprised 

that they received no follow-up directly from Burton 

following her receipt of the June 16, 2008 letter. Burton also 

testified that she did not initiate any contact with Teleflex 

after receiving the letter, but that she did not do so because 

she considered herself to have been fired, and believed she 

“no longer had any rights.” (App. 385.) Upon receipt of the 

June 16, 2008 letter, Burton contacted her attorney Michael 

Jarman, and from that point forward she only communicated 

with Teleflex “by and through [her] Attorney Jarman.” (App. 

323.) She further testified that she would not have contacted 

Teleflex on her own without first speaking to her attorney. 

The District Court thus did not consider that Burton 

communicated with Teleflex through her attorney following 

the June 16, 2008 letter, which undercuts its conclusion that 

she did not contest the resignation letter. 

Burton also testified that, during a party that she held 

for her former employees shortly after her separation from 

Teleflex, she denied having resigned and clarified that she 

believed she had been fired. Furthermore, Teleflex notified 

its customers of Burton‟s departure on June 16, 2008, the 

same day it sent her the letter purporting to accept her 

resignation. This fact undercuts the District Court‟s reliance 

on Burton‟s conduct after receiving the June 16, 2008 letter. 

Once clients were notified of Burton‟s alleged resignation, 

she could reasonably have concluded that Teleflex had fired 
23

her, leaving her no ability to contest her separation and return 

to her position.

Fourth, the District Court ignored evidence that Burton 

continued to perform work for Teleflex after her conversation 

with Boarini on June 3, 2008. On June 4, 2008, Burton met 

with Faris at the trade show to train him on quoting prices to 

customers. Faris acknowledged that he had a meeting with 

Burton at the trade show after her purported resignation, and 

that during the meeting Burton was talking about working 

together. Burton also testified that she had a previously 

scheduled vacation from June 9 to June 13, which could 

explain her absence from the office during this time period. 

Other evidence also indicates that, while she was on her 

vacation, Burton called in to the office to send in price quotes 

for customers, but that the receptionist would not put her 

through.9 

At this stage of the litigation, there is sufficient 

evidence from which a reasonable juror could conclude that 

Burton was terminated. The District Court ignored the fact 

that Burton never tendered her resignation, Burton never told 

anyone to whom she reported at Teleflex that she was 

resigning, Teleflex relied on hearsay statements to conclude 

that Burton had resigned, and Teleflex never once asked 

Burton if she had resigned. While there is certainly evidence 

to suggest that Burton did resign, this evidence is refuted by 

Burton. The District Court therefore erred when it 

 

9

 At her deposition, however, Burton testified that she could 

not remember whether she had called in to the office while 

she was on vacation.
24

determined that “[t]he evidence . . . weighs in favor of a 

finding that [Burton] resigned, even viewing the evidence in 

the light most favorable to [her].” Burton, 2011 WL 

5237709, at *3 n.7. 

4. McDonnell Douglas Burden Shifting 

Analysis

The District Court granted summary judgment for 

Teleflex because it held that Burton could not show that 

Teleflex‟s justification for sending her the resignation letter 

was pretextual. Burton, 2011 WL 5237709, at *4-5. Because 

the District Court‟s pretext analysis was unduly influenced by 

its error regarding Burton‟s resignation, we vacate the grant 

of summary judgment and remand for further proceedings. 

To the extent the District Court‟s pretext analysis 

suggested that Burton was required to show evidence of 

discriminatory animus to demonstrate pretext, that suggestion 

is unsupported by our precedent. See Fuentes, 32 F.3d at 764. 

A plaintiff may demonstrate pretext at summary judgment in 

two different ways. First, the plaintiff may point to evidence 

in the record that would cause a reasonable juror to disbelieve 

the employer‟s articulated legitimate non-discriminatory 

reason, thereby creating a genuine dispute of material fact as 

to the credibility of that reason. See id. at 764 & n.7. If a 

plaintiff comes forward with evidence that would cause a 

reasonable factfinder to find the defendant‟s proffered reason 

“unworthy of credence,” Lichtenstein, 691 F.3d at 310 

(internal quotation marks omitted), she need not adduce any 

evidence of discrimination beyond her prima facie case to 

survive summary judgment, Fuentes, 32 F.3d at 764; see also 

Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 

1067 (3d Cir. 1996) (en banc) (“[A] plaintiff may survive 
25

summary judgment . . . if the plaintiff produced sufficient 

evidence to raise a genuine issue of fact as to whether the 

employer‟s proffered reasons were not its true reasons for the 

challenged employment action.”). Second, the plaintiff may 

also defeat summary judgment by pointing to evidence that 

indicates that the employer acted with discriminatory animus. 

Fuentes, 32 F.3d at 764.

As discussed above, we find that Burton‟s evidence 

created a genuine dispute of fact regarding the credibility of 

Teleflex‟s proffered reason for her discharge — i.e., that a 

reasonable fact finder could find the claim that Burton 

resigned to be “unworthy of credence.” Id. at 765. In the 

face of such evidence, Burton did not need to present 

evidence of discriminatory animus and she should not have 

been required to do so.

We therefore vacate the grant of summary judgment 

on Burton‟s ADEA and Title VII claims and remand for 

further proceedings consistent with this opinion.

B. Burton’s Pennsylvania State Law Claims

The District Court also granted summary judgment to 

Teleflex on all of Burton‟s state law claims. For the 

following reasons, we vacate the grant of summary judgment 

on Burton‟s breach of contract and state law discrimination 

claims. We affirm the District Court‟s grant of summary 

judgment regarding Burton‟s remaining state law claims.
26

1. Breach of Contract

The District Court granted summary judgment to 

Teleflex on Burton‟s breach of contract claim because it 

concluded that “the evidence of record, viewed in the light 

most favorable to plaintiff, is that she resigned her position.” 

Burton, 2011 WL 5237709, at *5. Because a dispute of 

material fact exists as to whether Burton resigned or was 

terminated, summary judgment was inappropriately granted

on her breach of contract claim. 

Under Pennsylvania law, “[a] breach of contract action 

involves: (1) the existence of a contract; (2) a breach of a duty 

imposed by the contract; and (3) damages.” Braun v. WalMart Stores, Inc., 24 A.3d 875, 896 (Pa. Super. Ct. 2011). 

Burton bases her breach of contract claim on Teleflex‟s 

alleged violation of her Employment Agreement. The 

Agreement provides that Burton could be terminated in one of 

two ways: (1) with cause, or (2) without cause, after 30 days‟ 

notice. The Employment Agreement specifies that if Burton 

were to be terminated without cause, she would be entitled to 

a set amount of severance pay. Teleflex does not claim that 

Burton was terminated for cause, and Boarini admitted at his 

deposition that he never brought any performance issues to 

Burton‟s attention. The proposed separation agreement, sent 

to Burton on June 16, 2008, offered her a severance, but with 

the additional condition that she extend the non-compete 

provisions in her original Employment Agreement by one 

year.

10

 She never reached an agreement with Teleflex on the 

 

10 Payment of the severance was also conditioned on Burton 

releasing the company from liability. However, it is unclear 

whether she would have been required to sign a release had 
27

terms of her separation and has not received any severance 

pay.

The central fact material to Burton‟s breach of contract 

claim is whether she resigned or was terminated. If a 

factfinder were to find that Burton was terminated from 

Teleflex, he or she could also find that Teleflex breached the 

terms of the Employment Agreement. The grant of summary 

judgment is vacated.

2. Pennsylvania Human Relations Act

Burton also brings age and gender discrimination 

claims against Teleflex under the PHRA, which prohibits 

discrimination in employment on the basis of age or sex. 43 

Pa. Cons. Stat. §§ 953, 955. We have “stated „that the PHRA 

is to be interpreted as identical to federal anti-discrimination 

laws except where there is something specifically different in 

its language requiring that it be treated differently.‟” Slagle v. 

Cnty. of Clarion, 435 F.3d 262, 265 n.5 (3d Cir. 2006) 

(quoting Fasold, 409 F.3d at 184 n.8). The PHRA provisions 

here present no such issue, and therefore should be 

interpreted coextensively with Burton‟s ADEA and Title VII 

claims. See Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3 

(3d Cir. 2010) (noting that it is “proper to address ADEA and 

PHRA age discrimination claims collectively” (alteration and 

internal quotation marks omitted)); Atkinson v. LaFayette 

Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006) (“Claims under 

the PHRA are interpreted coextensively with Title VII 

claims.”). Because we vacate the grant of summary judgment 

 

the company terminated her pursuant to her original 

employment agreement.
28

on Burton‟s Title VII and ADEA claims, we also vacate the 

grant of summary judgment on Burton‟s PHRA claims.

3. Breach of the Covenant of Good Faith 

and Fair Dealing

The District Court construed Burton‟s claim for breach 

of the covenant of good faith and fair dealing as claiming 

that, but for her separation from Teleflex in 2008, she would 

have continued to be employed by Teleflex beyond the twoyear term contemplated by her Employment Agreement. 

Burton, 2011 WL 5237709, at *5. The District Court 

concluded that no evidence in the record supported this 

contention, and granted summary judgment. However, 

Burton argues that Teleflex breached the duty of good faith 

by terminating her employment in a manner contrary to the 

Employment Agreement, and by “contriv[ing] an illusory 

resignation to absolve them from their severance obligations 

under the Employment Agreement.” (Br. of Appellant 26.) 

Regardless of how the claim is framed, summary judgment 

was properly granted because under Pennsylvania law, the 

implied covenant of good faith does not allow for a cause of 

action separate and distinct from a breach of contract claim.

Pennsylvania courts have defined the duty of good 

faith and fair dealing as “[h]onesty in fact in the conduct or 

transaction concerned,” and have held that “[w]here a duty of 

good faith arises, it arises under the law of contracts, not 

under the law of torts.” Heritage Surveyors & Eng’rs, Inc. v. 

Nat’l Penn Bank, 801 A.2d 1248, 1253 (Pa. Super. Ct. 2002) 

(internal quotation marks omitted). Moreover, under 

Pennsylvania law, a “claim for breach of the implied 

covenant of good faith and fair dealing is subsumed in a 

breach of contract claim.” LSI Title Agency, Inc. v. 
29

Evaluation Servs., Inc., 951 A.2d 384, 392 (Pa. Super. Ct. 

2008). Therefore, while Pennsylvania law generally 

recognizes a duty of good faith in the performance of 

contracts, this duty “does not create independent substantive 

rights.” Commonwealth v. BASF Corp., No. 3127, 2001 WL 

1807788, at *12 (Pa. Commw. Ct. Mar. 15, 2001); see also 

JHE, Inc. v. Se. Pa. Transp. Auth., No. 1790, 2002 WL 

1018941, at *5 (Pa. Commw. Ct. May 17, 2002) (“[T]he 

implied covenant of good faith does not allow for a claim 

separate and distinct from a breach of contract claim. Rather, 

a claim arising from a breach of the covenant of good faith 

must be prosecuted as a breach of contract claim, as the 

covenant does nothing more than imply certain obligations 

into the contract itself.” (emphasis in original)).

Any claim that Teleflex violated the duty of good faith 

and fair dealing in the performance of the Employment 

Agreement is therefore subsumed into Burton‟s breach of 

contract claim. Although the District Court did not utilize 

this analysis in granting summary judgment to Teleflex, 

“„[w]e may affirm the District Court on any grounds 

supported by the record.‟” Kossler v. Crisanti, 564 F.3d 181, 

186 (3d Cir. 2009) (alteration in original) (quoting Nicini v. 

Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc)). 

Because Burton cannot maintain an independent cause of 

action for the breach of the covenant of good faith and fair 

dealing under Pennsylvania law, we affirm the District 

Court‟s grant of summary judgment on this claim.
30

4. Wrongful Interference with Contractual 

Relations

The District Court granted summary judgment for 

O‟Neill and Boarini on Burton‟s claim for wrongful 

interference with contractual relations because she provided 

no evidence from which a factfinder could conclude that 

O‟Neill and Boarini were acting as third parties to her 

Employment Agreement when they allegedly caused its 

breach. Burton, 2011 WL 5237709, at *5-6. The District 

Court was correct in this conclusion and its grant of summary 

judgment on this claim is affirmed.

Under Pennsylvania law, the elements of a claim for 

wrongful interference with contractual relations are: (1) the 

existence of a contractual relationship between the plaintiff 

and a third party; (2) purposeful action by the defendant, 

specifically intended to harm the contractual relationship; (3) 

the absence of privilege or justification on the part of the 

defendant; and (4) damages to the plaintiff as a result of the 

defendant‟s conduct. See Acumed LLC v. Advanced Surgical 

Servs., Inc., 561 F.3d 199, 212 (3d Cir. 2009). However, a 

plaintiff can only bring a claim for wrongful interference 

against a third party to the contract, not against a defendant 

who is also party to the contract. See Nix v. Temple Univ. of 

Commw. Sys. of Higher Educ., 596 A.2d 1132, 1137 (Pa. 

Super. Ct. 1991). Because a corporate agent acting within the 

scope of his employment acts on behalf of the corporation, he 

is not considered a third party to the contract. Id. Thus, 

under Pennsylvania law, where “a plaintiff has entered into a 

contract with a corporation, and that contract is terminated by 

a corporate agent who has acted within the scope of his or her 

authority, the corporation and its agent are considered one so 
31

that there is no third party against whom a claim for 

contractual interference will lie.” Daniel Adams Assocs., Inc. 

v. Rimbach Publ’g, Inc., 519 A.2d 997, 1002 (Pa. Super. Ct. 

1987); see also Maier v. Maretti, 671 A.2d 701, 707 (Pa. 

Super. Ct. 1995) (“Appellant, however, overlooked case law 

which holds a corporation acts only through its agents and 

officers, and such agents or officers cannot be regarded as 

third parties when they are acting in their official capacity.”).

 

Burton has provided no evidence from which a trier of 

fact could conclude that either O‟Neill or Boarini was acting 

outside the scope of his authority for Teleflex when each 

allegedly caused Teleflex to breach Burton‟s Employment 

Agreement. At her deposition, Burton was asked about what 

Boarini and O‟Neill did to interfere with her Agreement. She 

responded that Boarini gave O‟Neill the information that she 

allegedly resigned, and that O‟Neill interfered by writing the 

June 16, 2008 letter. These allegations do not support an 

inference that either Boarini or O‟Neill was acting outside the 

scope of his authority as a Teleflex employee. Although 

Burton argues that “[a] jury could find that Boarini and 

O‟Neill acted individually to interfere with [her] employment 

contract with Teleflex,” (Br. of Appellant 27), such 

conclusory allegations are insufficient to withstand a motion 

for summary judgment, see Betts v. New Castle Youth Dev. 

Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (“Unsupported 

assertions, conclusory allegations, or mere suspicions are 

insufficient to overcome a motion for summary judgment.”).
32

5. Defamation

Burton brings a defamation claim against Boarini 

based on the notices that he sent to Teleflex customers and 

employees advising them that Burton had left the company 

“to pursue other opportunities.” 11 The District Court held 

that Burton could not maintain her claim against Boarini 

because the notices were not capable of defamatory meaning, 

nor could she show that she was damaged by any of these 

statements. Burton, 2011 WL 5237709, at *7. On appeal, 

Burton argues that the District Court erred in holding that the 

June 16, 2008 notice to customers and the June 17, 2008 

email to Teleflex employees were incapable of defamatory 

meaning. (Reply Br. of Appellant 14-15.) The District Court 

was correct in granting summary judgment to Boarini on 

Burton‟s defamation claim.

Under 42 Pa. Cons. Stat. § 8343(a), a plaintiff is 

required to prove seven elements to make out a claim of 

defamation, including inter alia, proof of “[t]he defamatory 

character of the communication” and “[s]pecial harm 

resulting to the plaintiff from its publication.” Whether a 

communication is capable of defamatory meaning is a 

 

11 In her Complaint, Burton also brings a defamation claim 

against O‟Neill arising from the June 16, 2008 resignation 

letter. The District Court held that Burton could not maintain

her defamation claim against O‟Neill because the June 16, 

2008 letter was sent only to her, and therefore was never 

published. Burton does not contest this finding on appeal, 

and thus has waived her claim against O‟Neill. See Gorum v. 

Sessoms, 561 F.3d 179, 185 n.3 (3d Cir. 2009) (noting that 

the failure to argue an issue waives it on appeal).
33

“threshold issue” to be determined by the court. Kurowski v. 

Burroughs, 994 A.2d 611, 617 (Pa. Super. Ct. 2010); see also 

Blackwell v. Eskin, 916 A.2d 1123, 1125 (Pa. Super. Ct. 

2007) (“Whether the contested statements are capable of 

defamatory meaning is a question of law for the court.”). The 

plaintiff bears the burden of making this showing and “[i]f the 

court determines that the challenged publication is not 

capable of defamatory meaning, there is no basis for the 

matter to proceed to trial.” Kurowski, 994 A.2d at 617 

(internal quotation marks omitted). 

In considering whether a statement is capable of 

defamatory meaning, the court considers “whether the 

statement tends so to harm the reputation of another as to 

lower him in the estimation of the community or to deter third 

parties from associating or dealing with him.” Tucker v. 

Phila. Daily News, 848 A.2d 113, 124 (Pa. 2004) (internal 

quotation marks omitted). The statement must be examined 

in context to determine its likely effect on the reader, id., and 

the Court should evaluate the effect it is likely to produce “in 

the minds of the average persons among whom it is intended 

to circulate,” Tucker v. Fischbein, 237 F.3d 275, 282 (3d Cir. 

2001) (internal quotation marks omitted). Furthermore, the 

statement must do more than merely annoy or embarrass the 

purported victim; “[s]he must have suffered the kind of harm 

which has grievously fractured h[er] standing in the 

community of respectable society.” Phila. Daily News, 848 

A.2d at 124 (internal quotation marks omitted). 

Burton takes issue with the statement made to Teleflex 

customers and employees that she “decided to leave the 

company to pursue other opportunities.” (App. 436; see also

App. 236.) Although she claims that this statement caused 
34

co-workers to become angry with her, and allegedly caused 

customers to disassociate from her, the statement says nothing 

negative, and on its own, is incapable of “grievously 

fractur[ing] [her] standing in the community of respectable 

society.” Phila. Daily News, 848 A.2d at 124 (internal 

quotation marks omitted); see also Maier, 671 A.2d at 704-05

(collecting cases where far more egregious statements have 

been held to be incapable of defamatory meaning); cf. Agriss 

v. Roadway Express, Inc., 483 A.2d 456, 462-63 (Pa. Super. 

Ct. 1984) (holding that statement that employee “opened 

company mail” was capable of defamatory meaning because 

it implied that he committed a crime); Birl v. Phila. Elec. Co., 

167 A.2d 472, 475-76 (Pa. 1960) (holding that statement by 

plaintiff‟s former employer to his current employer that 

plaintiff “quit without giving notice” was capable of 

defamatory meaning because “recipients of such 

communication could reasonably conclude that [plaintiff] 

lacked honor and integrity and was not a person to be relied 

upon insofar as his business dealings were concerned”). 

Unlike the statements in Agriss and Birl, a statement 

that Burton left the company “to pursue other opportunities” 

does not reflect negatively on her integrity, and would not 

cause the recipients of the communication to distrust her. 

Furthermore, “even if the statement . . . were false, that does 

not require a finding of defamatory character.” Kurowski, 

994 A.2d at 619. The District Court therefore did not err 

when it held that the statement that Burton left “the company 

to pursue other opportunities” is incapable of defamatory 

meaning. 

In addition, Burton has not provided evidence that she 

was damaged by the allegedly defamatory communication, as 
35

required by 42 Pa. Cons. Stat. § 8343(a). As the District 

Court noted, Burton held a party for Teleflex employees at 

her home after her separation from Teleflex, and she testified 

that at this point, the employees “[t]hought very highly” of 

her, and did not believe that she had actually resigned. (App. 

146.) She also testified that after her separation from Teleflex 

she received two job offers from companies in the industry, 

one in Lancaster and one in Oregon, and claimed that they 

“would have taken [her] any time [she] was free.” (App. 

157.) These facts cut against a finding that Burton was 

damaged by the statements, and Burton has not put forth any 

evidence to the contrary.

We affirm the District Court‟s grant of summary 

judgment on Burton‟s defamation claim.

C. Motion to Supplement the Record on Appeal

Burton has filed a Motion to Supplement the Record 

and Appendix to include an affidavit from her attorney, 

Michael Jarman, and an email exchange between Jarman and 

James Leyden, attorney for Teleflex. (App. 954-57.) These 

documents were not provided to the District Court. Although 

it is the function of the appellate court to review the decision 

below on the basis of the record that was presented to the 

district court, a court of appeals may allow a party to 

supplement the record on appeal in “exceptional 

circumstances.” Acumed LLC, 561 F.3d at 226. In 

determining whether exceptional circumstances exist, the 

court may consider: 

(1) whether the proffered addition would 

establish beyond any doubt the proper 
36

resolution of the pending issue; (2) whether 

remanding the case to the district court for 

consideration of the additional material would 

be contrary to the interests of justice and the 

efficient use of judicial resources; and (3) 

whether the appeal arose in the context of a 

habeas corpus action. 

Id. (quoting In re Capital Cities/ABC Inc’s Appl. for Access 

to Sealed Trs., 913 F.2d 89, 97 (3d Cir. 1990)). Burton 

argues that supplementing the record is necessary because 

Jarman‟s affidavit and the accompanying email correct errors 

of fact committed by the District Court. She claims that the 

documents demonstrate that Burton communicated with 

Teleflex after June 16, 2008 by and through Jarman (therefore 

refuting the District Court‟s claim that she had no 

communication with Teleflex after June 16, 2008), and 

demonstrate that Jarman did in fact contest whether Burton 

resigned. (Appellant‟s Mem. 3-4.) However, Burton could 

have produced this information in the first instance to the 

District Court in opposition to Teleflex‟s motion for summary 

judgment. She nowhere claims that this information was not 

in her possession. See Acumed LLC, 561 F.3d at 226 n.26 

(“[A] party should present everything it needs for a complete 

presentation on the motion [to the District Court] and, if 

necessary, seek additional time under Fed. R. Civ. P. 56(f) to 

marshal its evidence.”). 

Burton claims that exceptional circumstances exist 

because she was unable to file a Motion for Reconsideration 
37

under Rule 59(e),12 but she fails to explain why she did not 

include these documents in her original submissions to the 

District Court. See Sigler v. Am. Honda Motor Co., 532 F.3d 

469, 477-78 (6th Cir. 2008) (denying motion to supplement 

record on appeal because “[p]ermitting [appellant] to 

supplement the record on appeal with information that she 

could have easily obtained much earlier would not advance 

the interests of justice and would not further efficient use of 

judicial resources”).

In addition, these materials add little to the record. 

The record presented to the District Court contains sufficient 

evidence to create a genuine dispute of material fact as to 

whether Burton resigned or was terminated. Therefore, 

Burton‟s Motion to Supplement is denied.

IV. CONCLUSION

For the foregoing reasons, we vacate the District 

Court‟s grant of summary judgment on Burton‟s 

discrimination claims brought under the ADEA, Title VII, 

and the PHRA, and vacate the grant of summary judgment on 

Burton‟s claim for breach of contract. We affirm the grant of 

summary judgment on the remainder of Burton‟s state law 

 

12 The District Court granted Teleflex‟s motion for summary 

judgment in an order without memorandum opinion on 

September 29, 2011, and issued its memorandum opinion on 

November 2, 2011. In the interim, Burton filed a notice of 

appeal. Because of the District Court‟s delay in issuing its 

opinion, Burton claims that she was unable to file a motion 

for reconsideration under Federal Rule of Civil Procedure 

59(e).
38

claims, and deny Burton‟s Motion to Supplement the Record. 

The case is remanded for proceedings consistent with this 

Opinion.