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w . vi l l a no va . e du/thir dc ir c uit_2003/541NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

__________ Case No: 02-3398

__________ SANDRA MARTI

N, Appellant

v. HEALTH C ARE & RET IRE MENT

CORPORA TI ON
On A ppeal Fro m Th e Un ited States District Co urt For T he W estern Distric t of P enns ylvania

(Civ. A. No. 00-850)
Distri ct Judge: The Honorable Donald Ziegl er

__________ Submitte d Under Third Circ uit LAR 34.1(a)

May 14, 2003

__________ Be for e: R EN DE LL , SM ITH and AL DI SE RT , Circuit Judges (Opinion Fi led: May20, 2003)

____________ OPI NION

____________2

SM ITH , Circuit

Judge I. FACTS San dra M artin is an Af

rican Am erica n w om an w ho w as b orn on J anu ary 10 , 194 4. Martin was employ ed by Heal th Care and Retirement Corporation ( “HCR”) at their Sky Vu e T erra ce facility in Pittsb urg h, P enn sylvan ia. In M arch o f 19 98, M artin w as D irector o f N ursing . At tha t time the Pen nsylvan ia Department of Heal th cited Sky Vue for fai lure to “provide e ach resi dent with s uffici ent fluid intake t o maintai n proper hydrati on and healt h.” Nonethel ess, Martin’s indivi dual performance was evaluated i n April of 1998 as “above standard.” In the intervening months, Gregor

y Tinzbecame the Home Administr ator and Mart in’s s upervis or. Ti nz rated Mart in “above standard” i n August, 1998. However on September 25, 1998, Tinz met with Marti n to dis cuss some probl ems with her j ob performance. At that meeting, Martin accus ed Tinz of bei ng a raci st. Subsequently, in his September evaluation of M artin, Tin z rated M artin’s o verall p erfor man ce as “ stand ard” a nd o n O ctobe r 1, M artin was temporari ly

suspended. The Department of Healt h issued a

second citation a gainst Sky Vue for i nsuffici ent hydr ation of

resi dents i n October of 1998. After the second citation, Martin was demoted to th e po sition of D irect or o f C linic al P rog ram s, an assis tant D irect or o f N ursin g po sition
. Donna Erdeljac be came the new Direct or of Nursing. On Oc tober 2 7, 199 8, M rs. M arche wk a, the w ife of a patie nt/reside nt, allege dly3

twice attem pted to spea k to M artin bu t was igno red. M rs. M arche wk a com plaine d to Tin z ab out M artin
. Then, on November 2, 1998, Corine Wilson ne e Twomey, the da ughter of another patie nt/r esident , approac hed Nurse Darrel l Peter s and tol d him that she saw urine under her mo ther’s whe elchair cushion and w anted to spe ak to the D irector of N ursing. Peters could not l ocate Erdel

jac, so he tol d Martin about Twomey’s complai nt. Mart in did not speak to Twomey or

investigate the probl em, but t old Peter s to speak with Twomey him self and leav e a n ote for E rde ljac. On Novem ber 5, 1998, Martin was ter minated. Tinz tol d Martin the reason she
wa s be ing term inate d w as b eca use she faile d to resp ond to re side nt fa mily c onc ern s. II . P ROCEDURAL POSTURE Ma rtin filed a com plaint alleging that she w as terminated in violation of T itle VII of the Civi l Rights Act of 1964, 42 U.S. C. 2000e et. seq ., the A ge D iscrimin ation in Employment Act ( “ADEA ”), 29 U.S. C. § 621 et. seq. and the Pennsylvania Human Relati ons Act (“PHRA”), 43 Pa. Con. St at. Ann. § 951 et. seq . HCR mov ed for sum mary judg men t, and th e D istrict Co urt gra nted th e mo tion by an orde r and opin ion d ated Ju ly 31, 2002. II I. JURI SDI CTI ON The Di stri ctCour

t h ad j ur is di ct io n ov erMartin ’s Title VII andADEA cl ai ms pursu ant to 2 8 U .S.C. § 133 1, and supp leme ntal jurisd iction o ver h er PH RA claim4

pursuan t to 28 U .S.C. § 136 7. This C ourt has jurisdiction ov er the appe al from su mm ary judgment purs uant to 28 U. S.C. § 1291. IV. STANDARD O F REVIEW This Court exe rcis es plenar y r eview over an or der of a di stri ct court granting
sum ma ry judg me nt. See Bieregu v. Reno , 59 F. 3d 1 445, 144 9 (3d C ir. 1995). Sum mary judgment must

be grante d if “there is no genuine i ssue as to any mat erialfact and [] the moving party

is entitl ed to judgment

as a matt er of law.” Fed. R. Civ. P. 56(c) . A genuine issue o f fac t exists “o nly if a reas onab le jury, con siderin g the e viden ce pre sented , could find for t he non-moving part

y. ” Childers v. Joseph , 842 F.2d 689, 694 (3d Cir. 1988) (citing An der son v. Li ber ty L obb y, In c., 477 U.S . 242 , 249 (19 86) ). V. LE GA L A NA LY SIS A claim of ter

minati on in viol ation of Titl e VII and the ADEA is analyzed under the McDonnell Douglas bur den -shif ting fram ew ork
. See McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973). The pl ainti ff must est ablis h a prima faci e case of discriminat ion, t

hen the burde n shift s to the employ er to ar ticul ate a l egitimate nondi sc rim in ato ry re as on fo r th e te rm in ati on an d f in all y pl ain tif

f m us t p ro ve by a preponderanc e of the evi dence that the employ er’s proffered re ason was a pret ext for disc rimi natio n. See id. at 802. Here, the parti es agree t hat Marti n made out a pri ma facie cas e under Tit le VII and the ADEA. HC R then proffer ed Martin’s acti ons in the Twomey and Marchewka5

incide nts as t

he legi timat e, non-di scri minatory reasons f

or her t erminat ion. Thus, the main iss ue is whether

Martin has introduced s uffici ent evi dence to per mit a fi nder of fact to reas onab ly infer tha t these re ason s we re prete xt. In order to show pret ext, Martin must point to s ome evidence fr om which a reasonabl e factfinder could e ither disbel ieve HCR’s arti culat ed legi timat e reason or belie ve that

an invidi ous discriminat oryreason was more l ikely than not a

motivat ing or dete rmin ative cau se o f H CR ’s ac tion s. Abramson v. William Patters on College of New Jersey , 260 F.3d 265, 283 (3d Cir. 2001) (quot ing Fue ntes v. P erskie , 32 F.3d 759, 764 (3d C ir. 1994 )); Ezold v. Wolf, Block, Shorr & Soli s-Cohen , 983 F.2d 509, 523 (3d Cir. 1992). To di sbeli eve the employer’s proffered re ason, t he questi on is not

whether the action was prudent, but whether appellant has shown “such w eaknesses, implausibil ities , incon sistenc ies, inco heren cies, or c ontrad ictions in the em ployer's pro ffere d legitim ate reasons f or it s acti on that a

reasonabl e factfinder could rationa lly find the m unworthy of credence[.]" Fuentes , 32 F. 3d at 765 (int ernal quotation omi tted) . Alte rnately, to show the dis criminatory

reason was more l ikely than not t

he motivating reas on, a pl ainti ff can introduce ev idence of

the emp loyer’s past treatment of h er, or evidence of the em ployer’s gen eral p olicy a nd p racti ce w ith re spe ct to m ino rity em plo yees. Ezo ld , 983 F.2d at 523- 24. Martin point s to si x pieces of evidence which s he clai ms could support a findi ng of pretext . Fir st, she point s out that Stephanie Russo, a Human Resources manager and1 M artin co ntend s that the Distric t Cou rt erred in conc luding that R usso wa s not a 1 decisi on-maker. The Distri ct Court arri ved at this conclusion base d on Russo’s t esti mony 2 that she did no t give any input into w hether M artin should be terminated. H owe ver, 3 Martin point s out that HCR included Russo i n the li st of “per sons who parti cipat ed in the 4 decisi on to ter

minate Martin.” Even pres uming Russo was a decis ion-maker, her 5 testimo ny wa s insufficien t to estab lish pre text fo r the rea sons discu ssed in the m ain tex t. 6
2 Erdeljac did d iscuss the inciden ts with M artin, howev er. 1 6 someone Martin cl aims was a deci sion-maker 1 , st ated that the Marchewka incident might have been a misunder standi ng. Even if Russo were a decisi on-maker, there were other decisi on-makers suc h as Tinz who beli eved the mis conduct was intentiona l, and a disa gre em ent a mo ng d ecis ion -ma ker s do es n ot sh ow pre text. See Fuentes , 32 F .3d a t 76 7. Ad ditiona lly, even if T inz w as w rong or m istaken in belie ving M artin’s m iscon duct, th is doe s no t ma ke h is rea son pre textu al. See Fuentes , 32 F.3d at 765 (“To discredit t

he employer’s proffered reaso n, how ever, the plaintiff can not show that the emp loyer’s decisi on was wrong or mistake n since t he factualdisput e at i ssue is whether discriminat oryanimus moti vated the employ er, not whether the employe r is wis e, shr ewd, prud ent or c om peten t.”); Keller v . Orix Credi t Alliance, Inc ., 130 F. 3d 1101, 1109 (3d Cir. 1997) (quest ion is not whether e mployer made a sound employment decis ion, but wh ethe r the real r eas on for th e de cisio n w as d iscrim inati on)
. Second, Marti n say s that pretext can be shown by t

he fact t hat Tinz neve r personal ly

spoke with her

or Peter s regar ding the t wo incident s, and t

hat he di d not give her an opport

unity to defend her self. 2 Even if Tinz was remi ss in r ely ing upon the complaint s brought to him by Ms. Marchewka and rel ayed to him by Erde ljac , rat her than7

speaking wit

h Martin or Pet ers di rectly, the question is whether Tinz ac tually bel ieved the descriptions of the i ncident s to be acc urate and reli ed upon them in Martin’s te rminati on. See Fuentes , 32 F.3d at 766-67. Ti nz stat ed that he did not s peak with Marti n because she had a patt ern of fai ling to respond t o complaint s and cri tici sm and her credibility “was very low.” Marti n did not introduce any evi dence suggesting that Tinz did not

belie ve the incide nts re lay ed by Marchewka and Erdel jac. Martin even admit ted that she knew of no evidence s howing that t hese repor

ts were not

Tinz’s motivation f

or firing her. Her evidence only challenged th e unde rlying truth of those reports. Th erefore, Tinz ’s failure to give M artin a c hanc e to tell he r side o f the sto ry canno t supp ort a fin ding of p retext. Third, Martin point s to the inconsi stenci es between what Pet ers say s he reported
versu s wh at Tin z, Ru sso an d Erd eljac cla im he said. E rdeljac , Rus so an d Tin z all testified that Peters asked Ma rtin to speak w ith Two mey and sh e refused . How ever, Peters testifie d that he never asked Mart in to s peak to Twomey, only t hat he i nformed her of the si tuati on. This di screpancy is not enough to est ablis h pretext . Fir st, as disc ussed supra , the truth of the repo rts con veyed to Tinz wa s imm aterial as long as he reaso nably believ ed the repo rts. In ad dition, v iewin g the facts in th e light m ost fav orab le to M artin and assuming t

hat Pete rs did not

ask her t o speak to Twomey, this sti ll would not just ify Ma rtin’s actions. Ma rtin was no t being disciplined b ecause sh e ignored a subordina te’s request that s he speak to Twomey. Rather, the purpor ted concer

n with Martin’ s acti ons was that s he should have taken it upon hersel f to speak to Twomey once she heard about8

Tw om ey’s com plaint. T wo mey ha d pre viou sly called th e D epartm ent of He alth to
com plain , and par t of M artin ’s job as a sup erv isor w as to dea l wi th fa mily m em ber s. Therefore, this discr epancy does nothing to undermine the Twom ey inci dent as a legit ima te ba sis fo r M artin ’s ter min ation
. Fourth, Martin point s out that she had “ above average” pe rformance r eviews pri or to her ac cusati on to Tinz t hat he was a ra cist , aft er which she was only r ated as “ average. ” However, HCR did not assert Martin’s September re view as a rea son for her termination, but rel ied on the two incide nts t hat occur red in Octobe r and November. Her Sep tem ber rev iew is, the refo re, n ot ev en r elev ant to our pre text a nalysis
. Cf. Colgan v. Fisher Sci entif

ic Co. , 935 F.2d 1407, 1422 (3d Cir. 1992) (re versi ng summary j udgment on A DE A w her e pla intiff’s n ega tive r evie w, which formed thebasis f or his di scharge , was g iven shortly after he refu sed to take ea rly retirement an d could b e foun d pretextual). Fifth, Martin point s to HCR’s all eged failure to progressively discipline he r for t

he M arche wk a and Tw om ey incide nts as e viden ce of pretex t. Since M artin w as pre viou sly demoted, s he was progress ively disciplined. In addition, an employe r’s dec isi on that an incide nt is seri ous enough to warr ant te rminati on rather than a l ess severe punishment doe s no t sho w th at the reas on for te rmin ation is pre textu al. Cf. Fuentes , 32 F.3d at 765 (an imp rud ent d ecis ion doe s no t sho w p retex t). Finally, Martin point s to t esti mony by Peters and Russo that

she was a nice, cordial person, and that

the inc idents alle ged are not consistent with he r ty

picalconduct and9

demeanor. Assuming arguendo this testimony would be adm issibl e, co-workers’ opin ions th at M artin w ould not h ave re buffed M arche wk a and Tw om ey intention ally cannot show that

Tinz and the ot

her deci sion-maker s were lying when they said t hat the y tho ugh t she mis han dled tho se in cide nts. See Conkwright v. WestinghouseElec. Corp. , 933 F .2d 231, 23 5 (4 th Cir. 1991) (co-worker ’s opini ons that plaintiff di d not deser

ve a negati ve rating or to be di scharged coul d not est ablis h that ne gative rating was pretext ual wh ere r ating wa s no t wi ldly ou t of li ne w ith o ther ind icia o f the plain tiff’ s pe rfo rma nce ). Moreover, as di scussed supra , even i f Russo were a decis ion-maker who thought well of Ma rtin, “the fact that the relevant d ecision-ma kers disagree about the p laintiff’s qualif icat ions does not

evidence di scri minati on.” Fuentes , 32 F.3d at 767. VI. CONCLUS ION Th e D istrict Co urt’s gra nt o f su mm ary jud gm ent s hou ld b e affirm ed.

______________________________________

/s/ D. Brooks Smith Circuit Judge