NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 20

- 1427

______________ WILLIAM E. HOOKER , Appellant

v. NOVO NORDISK INC.

______________ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY (D.C. Civ. Action No. 3:16

- cv - 04562 ) District Judge: Honorable Michael A. Shipp

______________ Submitted Under Third Circuit L.A.R. 34.1(a)

December 14 , 2020 BEFORE: GREENAWAY, JR., SHWARTZ , and FUENTES, Circuit Judges (Filed: Jul y 22, 2021 )

_____________ Opinion *

______________

______

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

GREENAWAY, JR. , Circuit Judge

. Appellant William Hooker alleges that his employer, Novo Nordisk, Inc. (“NNI”), terminated his employment in violation of the Age Discrimination in Employment Act (“ADEA” ) and the New Jersey Law Against Discrimination (“ NJLAD ”)

. He also alleges unlawful retaliation pursuant to the same statutes . Hooker also brought a retaliation claim pursuant to 42 U.S.C. § 1981 . The United States District Court for the District of New Jersey granted summary judgment for NNI on all claims. We will affirm.
I. BACKGROUND In August 2006, Hooker began working at NNI, a subsidiary of Novo Nordisk, A/S, a D anish pharmaceutical company

. Hooker served as a m anager of s trategic

s ourcing in NNI’s Plainsboro, N ew Jersey office and was fifty

- four years ol d when he was hired

. In 2008, s enior d irector Bernard Wright promoted Hooker to s enior m anager. In that role , Hooker’s responsibilities entailed managing sourcing projects for the organization and creating a supplier diversity program. In his performance evaluations between 2006 and 2011, Hooker received ratings of “Meets” or “Exceeds” expectations. App. 0504

. In 2010, Kars ten Knudsen, NNI’s Vice President of Finance, came to the United
States to work in NNI ’s Plainsboro office

. Knuds en oversaw Wright , whom Knudsen
terminated around 2012. In 2012, Knudsen temporarily became Hooker’s direct supervisor. During th at time, Hooker applied for an open position previously occupied by his former boss, Wright

. The job went to a well

- qualified external candidate, Richard
Houtz , who became Hooker’s supervisor and reported directly to Knudsen

. Hooker3

alleged that when Knudsen hired Houtz, Knudsen had stated that he wanted to bring some “fresh blood” into the organization. App. 0414

. Hooker interpreted “ fresh ” to

mean “ younger. ” App. 0414. Knudsen believes he mean t “inspiration from

. . . outside” the company. App. 0533. 1
In Hooker’s 2012 mid

- year review, Knudsen informed Hooker that his savings for the first half of 2012 were “ below expectations.” App. 0 101

. In February 2013 , Houtz provided Hooker with his 2012 performance review and noted that Hooker’s full

- year contributions were also below expectations

. Houtz rated Hooker’s performance as “approach[ing] expectations and goals .” App. 0217. Following the review, Houtz p laced Hooker on an A ction P lan , which outlined goals for Hooker to meet to increase his performance. Hooker communicated to Houtz that he felt “ blindsided ” by the performance review. App. 0219. Sometime after, Hooker met with NNI’s Human
Resources department and claimed that he believed Knudsen was discriminating against
him because of his age. In th at meeting, Hooker allege d that Knudsen had told him that the organization needed “fresh blood .” App. 0 222

. Hooker also maintained that in 2012 , Jesper Brandgaard , the CFO of Novo Nordisk, A/S, stated that the company was a “ very
young organization ” but also that they “ like the older people too. ” App. 041 2. After Hooker’s meeting with Human Resources , NNI hired third party counsel to interview

1 Hooker also alleged that Knudsen made a racially insensitive comment to him about another person on one occasion.4

Hooker, Houtz, 2 and Knudsen. After third party counsel completed an internal investigation, it issued a report finding no evidence of discrimination against Hooker. In July 2013, Houtz extended Hooker’s A ction P lan to September 2013

. Houtz did not believe that Hooker had achieved the goals set out by his previous plan. Later that July , Michael Hicks replaced Houtz as Hooker’s supervisor. Hicks removed Hooker from his A ction P lan in October 2013 because he believed Hooker’s “ability to par tner with [his] key stakeholders and [his] ability to balance [his] priorities ha [ d ] improved.” App. 0569. But over a year later, in February 2015 , Hicks concluded that “it is apparent
that [ Hooker] ’s level of skill is not commensurate with that of a Senior Category Manager.” 3 App. 0259. Hicks noted that , as a result, he would “attempt to actively manage a better level of performance in 2015.” App. 0259. At that time, Hooker also received warnings for several instances in which he did not show an understanding of “basic procurement concepts” and failed “to act independently in his role to produce expected results.” App. 0262 , 0263

. Hicks thus put Hooker on another A ction P lan in February 2015 (“Second Action Plan”)

. In response, Hooker stated that he needed more coaching. 4 Th e S econd A ction

2 Hooker ascribes no discriminatory remarks to Houtz

.
3 Hooker states that Hicks never made discriminatory remarks to him

.
4 Notwithstanding Knudsen’s removal from the direct line of Hooker’s supervision for over three years (in July 2014, Knudsen was promoted to global senior vice president of corporate finance and moved back to Denmark) , Hooker maintained that he was “ wary ” of the reviews based on Knudsen’s previous alleged desire to “prune” older workers from the organizat ion. App. 0267.5

P lan required H ooker to complete two tasks: develop a medical communications final pricing proposal and engag e in a promotional materials ordering project

. After Hooker completed the projects , Hicks believed that Hooker had not enhanced or shown improvement in his analytical skills during the period of the Second Action Plan

. Hicks then placed Hooker on a Perfo rmance Improvement Plan (“PIP”) , which the company institutes for employees who have already been placed on an Action Plan

. In July 2015, Hooker requested to be removed from the PIP , as he felt his performance had improved. Later that month, Hicks recommended to Human Resources that Hooker be terminated based on “incomplete” and “inaccurate” work

. App. 0345

. In August 2015, Hicks and a Human Resources representative terminated Hook er. A fifty

- three

- year - old replaced Hooker , who was sixty

- two when NNI terminated him. Following his termination, Hooker sued NNI in the United States District Court for the District of New Jersey . Hooker alleg ed that NNI fired him because of his age

. He brought claims for age discrimination under the ADEA and NJLAD and for unlawful retaliation under the ADEA, NJLAD, and 42 U.S.C. § 1981. NNI moved for summary judgment , which the District Court granted in its favor on all counts

. The District Court found that Hooker’s previous positive reviews from 2006 to 2011 could not establish pretext, since those reviews did not constitute proof that Hooker had recently performed well. The District Court also noted that comments made by NNI employees pertaining to “fresh blood,” “pruning the workforce” and NNI being a “young company” failed to establish that Hooker’s age was the “but

- for” cause for his term ination. Hooker v. Novo Nordisk, Inc. , No. 16

- cv - 04562, 2020 WL 526165, at *6 (D.N.J. Jan. 31, 2020)

. The6

District Court determined that th ese comments , which Hooker relied on to establish pretext, were insufficient to raise a genuine dispute as to any material fact

. The District
Court then found that Hooker had failed to state a prima facie case on his retaliation claims because he could not show any causal connection between his complaints and the termination of his employment

. This appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdictio n under 28 U.S.C. § 1291

. We review de novo a district court’s disposition of a summary judgment motion.
Nicini v. Morra , 212 F.3d 798, 805 (3d Cir. 2000) ( en banc ). We therefore apply the same standard for summary judgment as the District Court. Shiel ds v. Zuccarini , 254 F.3d 476, 481 (3d Cir. 2001). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Refin. Corp. , 72 F.3d 326, 330 (3d Cir. 1995). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Thomas v. Cumberland C oun ty , 749 F.3d 217, 222 (3 d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
III. DISCUSSION Hooker argues that the District Court erred in granting summary judgment on his claims for age discrimination and retaliation

. Hooker also challenges the District Court’s grant of summary judg ment on both of his retaliation claims.7

A. AGE DISCRIMINATION We agree with the District Court’s determination that Hooker’s age discrimination
claims fail. Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or to discharge any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1). Along similar lines, the NJLAD provides that “[a]ll persons shall have the opportunity to obtain employment . . . without discrimination because of . . . age.” N.J. Stat. Ann. § 10:5

- 4. In assessing a claim of age discrimination under the ADEA, courts employ the McDonnell Douglas burden

- shifting framework. Walton v. Mental Health Ass’n. of Se.
Pa. , 168 F.3d 661, 667

- 68 (3d Cir. 1999) (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973)). New Jersey also uses the McDonnell Douglas burden

- shifting scheme for discrimination cases. See Jakimas v. Hoffmann

– La Roche, Inc. , 485 F.3d 770, 788 (3d Cir. 2007) (“ [T] he standards applied to ADEA cases are applied to age claims under the NJLAD unless there is divergent language between the statutes.”)

. A plaintiff alleging employment discrimination under the ADEA must make a prima facie case with four elements: (1) she is over 40 years old; (2) she is qualified for the position; (3) she suffered from an adverse employment decision; and (4) her replacement was sufficiently younger to permit a reasonable inference of age discrimination. Potence v. Hazleton Area Sch. Dist. , 357 F.3d 366, 370 (3d Cir. 2004). Under the burden

- shifti ng framework, once the plaintiff makes out a prima facie case, the burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for the adverse action. McDonnell Douglas , 411 U.S. at 802.8

If the employer establishes a legitima te, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the employer’s stated reason was pretextual. Willis v. UPMC Child. ’s Hosp. of Pittsburgh , 808 F.3d 638, 644 (3d Cir. 2015) ; see Sarullo v. U.S. Postal Serv. , 352 F.3d 789, 800 (3d Cir. 2003) (Plaintiff must provide “evidence that would allow a fact finder reasonably to ‘(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not the motivating or determinative cause of the employer’s action.’” (quoting Jones v. Sch. Dist. of Phila. , 198 F.3d 403, 413 (3d Cir. 1999))

. Both parties agree that Hooker established a prima facie case of age discrimination and that NNI proffered a nondi scriminatory reason

— poor performance

— for Hooker’s
termination. Thus, it was Hooker’s burden to show that NNI’s reason was pretextual.
Hooker maintains that the District Court overlooked evidence that is favorable to him. He principally argues that the D istrict Court failed to consider NNI employees’
comments and references about youth. Hooker suggests that his prior satisfactory performance, positive comments from supervisors, and the alleged “ [ u ] nattainable” goal
structure of his A ction P lans combine to show that NNI’s termination was pretextual. Appellant’s Br. 20

. T hese reasons do not overcome NNI’s legitimate nondiscriminatory reason for terminating Hooker. Hooker began receiving negative reviews in 201 2, three years before Hicks termin ated Hooker’s employment. During his 2012 performance review (conducted in February 2013), Houtz

— a different manager

— informed Hooker that he need ed to strengthen his sourcing activities. Houtz assessed that he was below expectations

–9

reflected in Hooker’s next

- to

- lowest rating on NNI’s performance rating scale. Following the review, Houtz placed Hooker on a three

- month Action Plan , which outlined goals for Hooker to meet to increase his perfor mance. The Action Plan required that Hooker “increase his ability to influence and persuade internal customers, demonstrate $2 million in savings by the end of the Action Plan, and dedicate 80% of his time to stakeholder management, category strategy deve lopment, strategic sourcing execution, and overall supplier management, with 20% devoted to the supplier diversity initiative.” App. 0056

. When Hooker failed to meet his savings goal of $2 million, Houtz extended Hooker’s Action Plan to September

. When Hicks replaced Houtz as Hooker’s direct supervisor in July 2013, he terminated Hooker’s A ction P lan and gave him a fresh start

. But Hooker required performance coaching , significant feedback, and weekly meetings throughout 2014

. Hicks independently determined that Hooker’s performance needed improvement in several areas of category management. For instance, in Hooker’s 2014 year

- end review, Hicks wrote that Hooker “strugg [ led ] with several key components of Procurement, from the most b asic (e.g. , demand profiling) to the semi

- complex (e.g. , supplier pricing rationale and legitimacy). ” App. 0252

. Hicks then put Hooker on the Second Action Plan in February 2015 because of his lack of understanding of “ basic procurement concepts.” App. 0262

. After time had elapsed under the Second Action Plan, Hicks concluded that “[Hooker] had not sufficiently improved in exercising his analytical skills and independently produ cing results in projects requiring those skills.” App. 0063.10

Hooker spent two more months on a PIP directly after the Second Action Plan ended , but his work did not improve

. Hooker fails to establish that his documented and longstanding poor performance was a pretext for his termination. He attributes no ageist prejudice or action to Hicks, the relevant decisionmaker. And Hooker has not established that Knudsen and Bran d gaard

— who allegedly did harbo r ageist bias according to Hooker

—had any influence o n the decision to terminate him. Hooker failed to provide evidence that discrimination was more likely than not a motivating factor or determinative cause of termination. See Fuentes v. Perskie , 32 F.3 d 759, 764 (3d Cir. 1994). Thus, the District Court properly granted summary judgment on his age discrimination claims.
B. RETALIATION We also agree that the District Court properly granted summary judgment because Hooker presented insufficient evidence to support his retaliation claim s to create a genuine dispute of material fact

. To establish a prima facie claim for retaliation, a plaintiff must show that: “(1) he was engaged in protected activities; (2) the employer took an adverse employment action after or contemporaneous with the employee ’ s protected activity; and (3) a causal link exists between the employee ’ s protected activity and the employer ’ s adverse action.” Glanzman v. Metro. Mgmt. Corp. , 391 F.3d 506, 508

- 09 (3d Cir. 2004)

. If the p laintiff establishes a prima facie case of retaliation, under McDonnell Douglas , “the burden shifts to the employer to advance a legitimate, non

- retaliatory reason for its conduct.” Moore v. City of Philadelphia , 461 F.3d 331, 342 (3d Cir. 2006)11

(quoting Krouse v. Am. Sterilizer Co. , 126 F.3d 494, 500

- 01 (3d Cir. 1997)) (internal quotation marks omitted). “The employer ’ s burden at this stage is relatively light: it is satisfied if the defendant articulates any legitimate reason for the [adverse employment action]; the defendant need not prove that the articulated reason actually motivated the [action].” Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 189 (3d Cir. 2003) (quoting Krouse , 126 F.3d at 500) (alterations in original) . If the employer does so, the burden shifts back to the employee, who “must produce sufficient evidence to allow a reasonable fact finder to conclude that the proffered reasons for not rehiring him are a pretext for illegal discrimination or retaliation.” Sarullo , 352 F.3d at 799

- 800

. Hooker alleges that NNI terminated his employment in retaliation for complaints he made about age discrimination and for flagging several age

- based comments and one alleged racially offensive comment made by Knudsen. But t he District Court was c orrect that Hooker neglected to establish a causal connection between these complaints

— which began after his first negative performance review in January 2012

— and his termination years after the initial complain t s . “To establish the requisite causal connection a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to

es tablish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis , 480 F.3d 259, 267 (3d Cir. 2007). “An employee cannot easily establish a causal connection between his protected activity and the alleged retaliation when he has received significant negati ve12

evaluations before engaging in the protected activity.” Ross v. Gilhuly , 755 F.3d 185, 194 (3d Cir. 2014). Hooker has failed to show that NNI had a retaliatory motive in terminating him. Indeed, there is no evidence connecting Hooker’s termination t o his complaints

— years earlier

— about Knudsen’s comments. Knudsen directly supervised Hooker for only five months from January to June 2012

. A fter Houtz was hired to NNI and became Hooker’s supervisor, Knudsen was one level removed from the decisionmaking on Hooker. 5 W hen Hicks ultimately terminated Hooker, Knudsen was no longer in the United States or working for NNI

. 6 Hooker was struggling with poor performance for almost the entire period of the Action Plans

– nearly three years. See App. 0504 ( l isting Hooker’s annual performances as “Approaches” or “Meets” expectations from 2012 onward). Hooker’s negative feedback began before his first complaint to management , he was placed on
A ction P lans both before and after his complaints, and he presented no evidence of intervening antagonism or retaliatory animus after his initial H uman Resources complaint. The District Court thus properly granted summary judgment for NNI on the retaliation claims. IV. CONCLUSION

5 We have explained that “[s]tray remarks by non - decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote from the date of decision.” Fuentes , 32 F.3d at 767 (quoting Ezold v. Wolf, Block, Schorr & Solis

– Cohen , 983 F.2d 509, 5 45 (3d Cir.1992) ).

6 Hicks was not an NNI employee when Knudsen made the age

- related comments that Hooker alleges

.13

For these reasons , we will affirm the order of the District Court.