2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-22-2009

Thomas Smith v. City of Allentown

Precedential or Non-Precedential: Precedential

Docket No. 09-1998

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-1998

_____________

THOMAS A. SMITH, 

 Appellant

v.

CITY OF ALLENTOWN; 

ED PAWLOWSKI

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 07-cv-4317)

District Judge: Honorable Mitchell S. Goldberg

_______________

Submitted Under Third Circuit LAR 34.1(a)

November 5, 2009

Before: SCIRICA, Chief Judge, JORDAN and COWEN,

Circuit Judges.

(Filed December 22, 2009)

_______________
2

Richard J. Orloski 

The Orloski law Firm

111 N. Cedar Crest Blvd.

Allentown, PA 18104

Edward J. Easterly

George C. Hlavac

Steven E. Hoffman 

Tallman, Hudders & Sorrentino

1611 Pond Rd. - Ste. 300

Allentown, PA 18104

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Thomas Smith appeals an order of the United States

District Court for the Eastern District of Pennsylvania granting

summary judgment in favor of the City of Allentown and its

Mayor, Ed Pawlowski, on Smith’s claims for discrimination

based upon his age and political affiliation. For the reasons that

follow, we will affirm. 

I. Background

A. Facts Underlying Smith’s Claims

At the time of Smith’s termination on October 19, 2006,

he was fifty-five years old and a registered member of the
3

Republican party. He worked as the Superintendent of the City

of Allentown Recreation Bureau, a post to which he was

appointed in 2000 by former Mayor William Heydt, who also is

a Republican. As Superintendent, Smith was responsible for

overall management of the Recreation Bureau, including seven

full-time staff members and between 150 and 200 part-time,

seasonal employees. He prepared budgets, developed new

recreation programs, ran the City’s organized sports programs,

and assisted with the planning of “SportsFest,” an annual

community festival of athletic events. As Superintendent, he set

green fees at the municipal golf course and administered the

course’s annual marketing budget. He was also responsible,

along with the heads of two other City departments, for

managing the City’s swimming pools. 

In November 2001, Democrat Roy Afflerbach succeeded

Heydt as Mayor. Smith continued to serve as Superintendent of

the Recreation Bureau throughout the Afflerbach administration,

weathering a funding crisis and preserving many of the City’s

recreation programs. In early 2002, Afflerbach appointed

appellee Ed Pawlowski as Director of Community and

Economic Development. Pawlowski thus became Smith’s

immediate supervisor in the City government. According to

Pawlowski, there were a number of problems with Smith’s

performance as Superintendent. Pawlowski said that Smith

neglected to create new recreational programs or to promote

existing recreation offerings. Smith acknowledges that

Pawlowski chastised him, and the other department heads who

operated the swimming pools, for failing to perform necessary

pool upkeep. 
It is unclear whether this conversation occurred before 1

or after the November 2005 election. Smith recalls speaking

with Spang in the spring of 2006. Spang, on the other hand,

testified that he spoke with Smith approximately one year

earlier, before the election. Construing the facts in the light

most favorable to Smith as the party opposing summary

4

In late 2004, Pawlowski resigned in protest over certain

policies implemented by the Afflerbach administration. His

successor, and hence Smith’s new supervisor, was Lauren

Giguere. She developed a performance plan that established a

series of goals for the Recreation Bureau. The plan required

Smith to establish bureau-wide financial procedures, create a

master plan for cooperation between the Recreation Bureau and

the Parks Bureau, explore options for constructing new

recreation centers, and implement new software programs to

increase Bureau efficiency. 

In early 2005, Pawlowski announced his candidacy for

Mayor of Allentown on the Democratic ticket. The November

2005 general election pitted Pawlowski as the Democratic

candidate against former Mayor Heydt on the Republican ticket.

 Smith supported Heydt’s renewed bid for office and placed a

pro-Heydt campaign sign in his yard approximately three weeks

before the election. Pawlowski ultimately emerged victorious

in the election. 

Sometime during the first half of 2006, Smith allegedly

had a conversation with his friend James Spang, a Democrat

who had worked on Pawlowski’s campaign. According to 1
judgment, we credit his recollection of the timing of this

conversation.

5

Smith, Spang stated that Pawlowski “viewed [Smith] as a

political enemy[] of sorts” and believed that Smith had

improperly attempted to influence two members of the City’s

recreation commission to support Heydt’s bid for Mayor. (App.

at 35a.) In contrast, Spang testified that he approached Smith to

express concern that Heydt had received preferential invitations

to events at SportsFest, while Pawlowski had not. Spang

recalled the conversation lasting approximately two minutes,

during which he encouraged Smith to refrain from politicizing

events and recommended that future invitations be extended in

a more neutral fashion. Spang, who does not recall uttering the

phrase “political enemy,” explained that he approached Smith

because he believed that Smith had a future as a candidate for

local office and that Smith’s political prospects would be placed

in jeopardy if he were perceived as using City events for

partisan purposes. Spang testified that he never informed

Pawlowski of his conversation with Smith, and Smith possesses

no knowledge regarding why Spang would have represented that

Pawlowski considered Smith a political foe. 

In May 2006, then-Mayor Pawlowski appointed Francis

Dougherty, who until that time had worked in Philadelphia, to

replace Giguere as Director of Community and Economic

Development for Allentown. Dougherty conducted a review of

Smith’s file and determined that Smith had failed to achieve any

of the goals set forth in Guigere’s performance plan. Smith’s

view is that he had made progress on the goals, but he concedes
Smith has submitted an affidavit that attempts to shift

2

responsibility for these shortfalls but contradicts his deposition

testimony acknowledging accountability for some of the

problems identified by appellees. We credit Smith’s deposition

testimony to the exclusion of his affidavit insofar as the two are

in conflict. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d

247, 253 (3d Cir. 2007) (stating that a party may not rely upon

an affidavit that is inconsistent with the party’s prior deposition

testimony to create a genuine issue of material fact at the

summary judgment stage). 

According to Smith, Everitt Bickford volunteered to 3

coordinate and raise funds for the parade when the City

withdrew financial support for it. The City continued to assist

Bickford’s efforts and provided organizational support for the

parade. In early 2006, Pawlowski assigned Smith to work with

Bickford to coordinate that year’s parade. Bickford became

unwilling to cooperate with City personnel and announced a

date for the parade that was earlier than usual, without first

informing or receiving approval from the City. Smith testified

that in response he “did nothing, other than maybe sen[ding] a

memo down to the Mayor’s office, saying that this was the date

[Bickford] had picked.” (App. at 63a.)

6

that he did not fulfill them within the time allotted under

Guigere’s plan. Dougherty discovered that during Smith’s 2

tenure, the number of rounds played at the municipal golf course

had declined and control of the City’s Halloween parade had

been ceded to a private citizen who was running it with minimal

oversight from the Recreation Bureau. After reviewing Smith’s 3
7

performance Dougherty concluded that “Smith did not have the

skill sets” to implement the City’s vision for its recreation

programming. (App. at 201a.) 

Dougherty recommended to Pawlowski that Smith be

discharged. Pawlowski reviewed Dougherty’s recommendation

and soon agreed with Dougherty’s assessment. In addition to

the problems identified by Dougherty, Pawlowski knew his

office had received complaints that the golf course was poorly

managed and that Smith had not developed new golf

programming to promote the course. Dougherty testified that he

met with Pawlowski in late June 2006 to discuss Smith’s

employment status and that, at the close of that meeting,

Pawlowski instructed him to terminate Smith’s employment.

Prior to formally terminating Smith, Pawlowski and Dougherty

consulted the City Solicitor and Assistant Solicitor as well as

Sonya Stephens, a representative from the City’s Human

Resources Department (“HR”). All three individuals advised

against the termination. Pawlowski and Dougherty nevertheless

decided to proceed with the firing. 

During a one-on-one meeting with Smith on July 24,

2006, Dougherty informed him that he lacked the skills

necessary to perform his employment duties effectively and that

he was being given the option to resign or retire. According to

Smith, Dougherty observed that Smith’s fifty-fifth birthday and

his employment anniversary, which occurred respectively on

August 2 and October 2, were approaching and that Pawlowski

wanted to receive Smith’s resignation by that birthday but no

later than the anniversary date. 
8

Following that conversation, Smith prepared a letter

describing his accomplishments as Superintendent of the

Recreation Bureau, stating that he was not a political enemy of

Pawlowski, and requesting that Pawlowski reconsider his

termination. Pawlowski reviewed the letter but declined to

reconsider. Smith tendered his resignation, effective October

19, 2006. The City subsequently hired Carl Bruno, who at the

time was thirty-six years of age, to replace Smith. Bruno served

as Superintendent of the Recreation Bureau for six months, after

which he was replaced by Kevin Easterling, then forty-two years

of age. 

HR representative Stephens testified that she was never

formally apprised of Smith’s termination and that she discovered

it through happenstance, though she could not recall precisely

how she learned of it. She further explained that, in her opinion,

the firing was unwarranted and that conducting a termination

meeting without the involvement of an HR representative was

unusual. 

B. Procedural History

On October 16, 2007, Smith commenced the present

lawsuit. Smith complained that, when terminating his

employment, Pawlowski and the City of Allentown

discriminated against him on the basis of his age, in violation of

the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. §§ 621-34, and on the basis of his political affiliation, in

violation of his First Amendment rights. Smith claimed that

Dougherty’s reference to his birthday during the termination

meeting revealed age-based animus, and he contended that
9

Stephens’s characterization of his discharge as unusual and

unwarranted supported his claim. He further asserted that his

having a pro-Heydt campaign sign in his yard during the

November 2005 election together with Spang’s “political

enemy” comment provided evidence that he was fired due to his

affiliation with the Republican party. Mayor Pawlowski and the

City responded that Smith was terminated not because of his age

or political affiliation but because he lacked the skills to lead the

Recreation Bureau effectively. 

With respect to the age discrimination claim, the District

Court found that Smith failed to proffer evidence from which a

reasonable jury could conclude that defendants’ proffered

rationale for terminating him was a pretext for age

discrimination. Addressing the political affiliation claim, the

Court found that Smith’s testimony regarding Spang’s “political

enemy” comment constituted inadmissible hearsay that could

not be considered on summary judgment. Because Smith could

not identify an alternate source of Pawlowski’s alleged political

enmity toward him, the Court concluded that Smith lacked

admissible evidence that Pawlowski considered Smith a political

adversary. It therefore entered summary judgment for

Pawlowski and the City on all claims. This timely appeal

followed. 
The District Court exercised federal question 4

jurisdiction over Smith’s claims under 28 U.S.C. § 1331. We

have appellate jurisdiction over the final decision of the District

Court under 28 U.S.C. § 1291.

10

II. Discussion4

Smith appeals the District Court’s grant of summary

judgment on both his ADEA and First Amendment claims. We

exercise plenary review over an appeal from a grant of summary

judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc.,

264 F.3d 365, 369 (3d Cir. 2001). Summary judgment is

appropriate if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Id.

(citing FED.R.CIV. P. 56(c)). “In making this determination, we

must consider the evidence in the record in the light most

favorable to the nonmoving party.” Id.

A. Age Discrimination

The District Court disposed of Smith’s age discrimination

claim under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 742 (1973), which we have

applied to ADEA claims. See Keller v. Orix Credit Alliance,

Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (describing the prima

facie showing that a plaintiff must make under McDonnell

Douglas, as applied to an ADEA claim). Under McDonnell

Douglas, the plaintiff bears the burden of proof and the initial

burden of production, having to demonstrate a prima facie case

of discrimination by showing first, that the plaintiff is forty
11

years of age or older; second, that the defendant took an adverse

employment action against the plaintiff; third, that the plaintiff

was qualified for the position in question; and fourth, that the

plaintiff was ultimately replaced by another employee who was

sufficiently younger to support an inference of discriminatory

animus. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370

(3d Cir. 2004). Once the plaintiff satisfies these elements, the

burden of production shifts to the employer to identify a

legitimate non-discriminatory reason for the adverse

employment action. Keller, 130 F.3d at 1108. If the employer

does so, the burden of production returns to the plaintiff to

demonstrate that the employer’s proffered rationale was a

pretext for age discrimination. Starceski v. Westinghouse Elec.

Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995). At all times,

however, the burden of persuasion rests with the plaintiff. Id.

Before the District Court in this matter, the parties

stipulated that Smith possessed sufficient evidence to establish

a prima facie case and that Smith’s allegedly substandard job

performance provided appellees with a legitimate,

nondiscriminatory rationale for his termination. Thus, the

District Court addressed only whether Smith had adduced

evidence from which a reasonable jury could conclude that

appellees relied upon his job performance as a pretext for age

discrimination. Smith predicated his allegations of age

discrimination upon several things: first, Dougherty’s reference

to Smith’s birthday and anniversary date during the meeting at

which they discussed Smith’s termination; second, the

recommendations of Stephens, the City Solicitor, and the

Assistant Solicitor that Smith not be discharged; and, third, the

City’s progressive discipline policy, which appellees allegedly
12

failed to utilize prior to discharging him. He also argued that

Dougherty, as a recent political appointee from outside the

Allentown area, lacked sufficient knowledge about Smith’s job

performance to reach an informed decision about whether to

recommend termination. The Court concluded that such

evidence did not cast doubt upon the performance-related

reasons that appellees proffered for Smith’s discharge. The

Court therefore granted summary judgment to appellees on

Smith’s ADEA claim. 

After the District Court rendered its ruling, the Supreme

Court decided Gross v. FBL Financial Services, 129 S. Ct. 2343

(2009), which considered whether the burden-shifting

framework established by Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), is available to plaintiffs in age discrimination

cases. Gross, 129 S. Ct. at 2348-49. Price Waterhouse, decided

under Title VII of the Civil Rights Act of 1964, determined that,

if the defendant initiated an allegedly adverse employment

action as the result of both permissible and impermissible

motives, the burden of persuasion shifts to the defendant to

demonstrate that it would have taken the adverse action

notwithstanding the improper motive. 490 U.S. at 244-25;

Watson v. Se. Pa. Trans. Auth., 207 F.3d 207, 215 (3d Cir.

2000). This burden-shifting framework has become known as

the mixed-motive doctrine. Gross refused to apply Price

Waterhouse to ADEA claims for two reasons. First, the Court

found that shifting the burden of persuasion to an age

discrimination defendant is improper because the plain language

of the ADEA requires the plaintiff to prove that the defendant

took the adverse employment action “because of [the plaintiff’s]

age.” Gross, 129 S. Ct. at 2350-51 (quoting 29 U.S.C.
13

§ 623(a)(1)). The Court construed this language as requiring

that the plaintiff prove but-for causation from the outset of an

ADEA case. Id. at 2351. Second—and more generally—the

Court expressed ambivalence about the utility of burden-shifting

in age discrimination claims. The Court noted that it had never

definitively applied McDonnell Douglas to ADEA claims,

Gross, 129 S. Ct. at 2349 n.2, and suggested that burdenshifting, at least of the Price Waterhouse variety, has been

difficult to apply in practice and that its cumbersome nature has

“eliminated any perceivable benefit to extending its framework

to ADEA claims.” Id. at 2352.

Appellees argue that Gross renders McDonnell Douglas’s

burden-shifting inapplicable to ADEA cases and that we should

dispose of the instant appeal solely by inquiring whether Smith

would have retained his job but for the alleged age

discrimination. However, we may not depart from our prior

decisions applying McDonnell Douglas to age discrimination

cases unless those decisions are irreconcilable with Gross. See

Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d 287, 294 n.9 (3d Cir.

1998) (noting that a panel of the court may not overrule the

decisions of a prior panel unless the earlier disposition “is in

conflict with Supreme Court precedent”). While we recognize

that Gross expressed significant doubt about any burden-shifting

under the ADEA, we conclude that the but-for causation

standard required by Gross does not conflict with our continued

application of the McDonnell Douglas paradigm in age

discrimination cases. 

Gross stands for the proposition that it is improper to

shift the burden of persuasion to the defendant in an age
14

discrimination case. McDonnell Douglas, however, imposes no

shift in that particular burden. McDonnell Douglas provides

that, once the employee establishes a prima facie case, the

burden of production (i.e., of going forward) shifts to the

employer to articulate a legitimate, nondiscriminatory reason for

the employer’s adverse employment decision. McDonnell

Douglas, 411 U.S. at 802. If the employer makes that showing,

the burden of production shifts once again to the employee to

establish that the employer’s proffered justification for the

adverse action is pretextual. Tex. Dep’t of Comm. Affairs v.

Burdine, 450 U.S. 248, 254-55 (1981). Throughout this burdenshifting exercise, the burden of persuasion, “including the

burden of proving ‘but for’ causation or causation in fact,

remains on the employee.” Starceski, 54 F.3d at 1095 n.4 (3d

Cir. 1995) (citing Burdine, 450 U.S. at 253). Hence, Gross,

which prohibits shifting the burden of persuasion to an ADEA

defendant, does not forbid our adherence to precedent applying

McDonnell Douglas to age discrimination claims. Decisions of

our sister circuits are in accord. See, e.g., Liebowitz v. Cornell

Univ., --- F.3d ----, 2009 WL 3403147, at *8 n.2 (2d Cir. Oct.

23, 2009) (applying McDonnell Douglas while recognizing that

Gross requires the plaintiff to prove that age was the but-for

cause of the defendant’s adverse employment action); Geiger v.

Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (holding that,

following Gross, “the McDonnell Douglas framework can still

be used to analyze ADEA claims based on circumstantial

evidence”). We have therefore evaluated Smith’s age

discrimination claim pursuant to McDonnell Douglas to see

whether he produced sufficient evidence to establish that

appellees’ proffered rationale for terminating him was a pretext

for age-based discrimination. 
15

We conclude that Smith has failed to carry that burden.

He exhibited performance problems as early as 2002, when

Pawlowski, then director of community and economic

development, noted complaints that Smith and two other

directors had neglected to maintain the City’s swimming pools.

In late 2004, Guigere gave Smith a series of performance goals,

which it is undisputed Smith failed to accomplish. When

Dougherty reviewed Smith’s performance in early 2006, he was

concerned with problems involving the golf course, youth

sports, and the annual Halloween parade. 

Smith nevertheless claims that Pawlowski unlawfully

discriminated against him because of his age and that the proof

of discrimination is, first, that Pawlowski wanted Smith to

resign by Smith’s birthday; second, that no one from HR

participated in his termination meeting; and third, that the City

did not progressively discipline him before ending his

employment. None of these pieces of evidence would cause a

reasonable jury to find that appellees acted with discriminatory

intent when they terminated Smith. 

Smith has produced no evidence that Dougherty

referenced Smith’s fifty-fifth birthday for any reason other than

providing a timetable for his resignation. In fact, Smith

conceded that Dougherty could have referenced his birthday to

ensure that he received an increase in his retirement benefits,

which became fully accessible to Smith only when he turned

fifty-five. Smith acknowledged that, aside from Dougherty’s

comment, he had no reason to believe that Pawlowski

considered his age when deciding to terminate his employment.

Dougherty’s lack of personal knowledge about Smith’s job
Smith’s opening brief asserts that City of Allentown 5

Regulation No. 6-4-01 imposes a mandatory progressive

disciplinary structure, but none of the materials he cites in

support of this averment contain the text of the policy or a

description of the disciplinary framework it allegedly imposes.

Absent such evidence, Smith’s contention that he should have

been disciplined instead of terminated cannot stand.

16

performance is likewise immaterial. It is undisputed that

Dougherty perused Smith’s personnel file, discussed Smith’s

performance with Guigere, and consulted with Pawlowski in

formulating his recommendation that Smith be terminated.

Thus, it appears that Dougherty issued his recommendation

based upon a thorough review of Smith’s performance history

with the City of Allentown. Moreover, while the City Solicitor,

Assistant Solicitor, and Stephens recommended against Smith’s

termination, that recommendation was not binding on

Pawlowski, who possessed final decision-making authority to

retain or discharge at-will employees. Lastly, Smith has

produced no evidence that the City had a mandatory progressive

disciplinary policy or that the defendants deviated from any such

policy. 

5

Smith clearly received notice of his deficient

performance when Guigere established performance goals for

his Bureau, if not sooner. Smith further acknowledged that he

was an at-will employee and that he understood the City could

terminate his employment at any time. Under these

circumstances, no reasonable jury could agree that appellees

terminated Smith on the basis of age discrimination.
The shift of that burden derives from Mt. Healthy City 6

School District Board of Education v. Doyle, 429 U.S. 274

(1977), in which the Supreme Court imposed a shift in the

burden of persuasion to the defendant in cases where a plaintiff

demonstrates that he has engaged in protected conduct and that

his exercise of free speech rights was a motivating factor in an

adverse action by the defendant against him. Id. at 287. We

have applied the same burden-shift in cases that implicate

17

Accordingly, the District Court properly granted summary

judgment in appellees’ favor on his ADEA claim. 

B. Discrimination Based on Political Affiliation

To succeed on a discrimination claim based on political

affiliation, a public employee must make a prima facie showing

that “(1) that the employee works for a public employer in a

position that does not require a political affiliation, (2) that the

employee maintained a political affiliation, and (3) that the

employee’s political affiliation was a substantial or motivating

factor in the adverse employment decision.” Hill v. Borough of

Kutztown, 455 F.3d 225, 243 (3d Cir. 2006). Once the plaintiff

establishes a prima facie case, the defendant may “avoid a

finding of liability by proving by a preponderance of the

evidence that the same employment action would have been

taken even in the absence of the protected activity.” Galli v.

N.J. Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007)

(quoting Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.

1997)). There is, in other words, a shift in the burden of

persuasion. 

6
retaliation or discrimination based on political affiliation. See

Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir. 1984)

(applying the Mt. Healthy burden-shifting framework to

discrimination claims based on political affiliation). 

18

In the present matter, Smith has established the first two

elements of his prima facie case. With regard to the third

element, he cited the following evidence as proof that his firing

was motivated by his political affiliation: first, the pro-Heydt

campaign sign that he placed on his yard during the November

2005 election; second, his alleged reputation as a Heydt

supporter; third, Spang’s statement that Smith ran the 2005

SportsFest in a manner that favored Heydt’s campaign; and

fourth, Spang’s alleged comment that Pawlowski considered

Smith a political enemy. 

The available facts, however, do not support an inference

that Pawlowski or Dougherty discriminated against Smith on the

basis of political affiliation. As to his yard-sign and alleged

reputation as a Heydt supporter, Smith has not adduced evidence

that Pawlowski or Dougherty knew about either. Dougherty did

not even reside in the Allentown area at the time of the 2005

mayoral election, and Pawlowski testified that he did not know

where Smith lived. As to Smith’s handling of the 2005

SportsFest, it is undisputed that Spang never mentioned his

concerns in that regard to anyone other than Smith, and nothing

in the record suggests that Pawlowski was aware of Spang’s

concern or shared his opinions. 
19

Finally, the District Court refused to consider Smith’s

testimony about Spang’s “political enemy” comment on hearsay

grounds. Hearsay statements that would be inadmissible at trial

may not be considered for purposes of summary judgment. Cf.

Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223

at n.2 (3d Cir. 2000) (“In this circuit, hearsay statements can be

considered on a motion for summary judgment if they are

capable of admission at trial.”). Smith’s testimony is double

hearsay because it describes a statement that Spang made to

Smith about a conversation that Pawlowski allegedly had with

Spang. Thus, for the “political enemy” comment to be

considered on summary judgment, Smith must demonstrate that

both layers of hearsay would be admissible at trial. See FED. R.

EVID. 805 (“Hearsay included within hearsay is not excluded

under the hearsay rule if each part of the combined statements

conforms with an exception to the hearsay rule ... .”). If, as

Smith alleges, Pawlowski informed Spang that Pawlowski

considered Smith a political adversary, that statement would

qualify as an admission by a party opponent and would be

admissible under Rule 801(d)(2)(A) of the Federal Rules of

Evidence. However, Smith offers Spang’s repetition of that

alleged statement for the truth of the matter asserted (i.e., that

Pawlowski considered him a political threat). Spang’s repetition

is itself therefore hearsay, and it appears to be beyond the reach

of any exception to the hearsay rule. Despite aggressive crossexamination, Spang disavowed any recollection of

characterizing Smith as a political enemy of Pawlowski. Thus,

Smith has failed to demonstrate that Spang could testify about

the substance of the “political enemy” comment at trial, leaving

Smith without admissible evidence of Pawlowski’s alleged

sentiment. Without such evidence, the District Court properly
20

refused to consider the “political enemy” comment for summary

judgment purposes.

To sum up, the only admissible evidence Smith possesses

that appellees discharged him based on his political affiliation

involves speculation about a yard sign and SportsFest. Smith

has produced no evidence that Pawlowski knew of the yard sign

or of Spang’s SportsFest concerns. Absent such knowledge, no

reasonable jury could conclude that discriminatory animus lay

behind Smith’s termination. The District Court thus did not err

by entering summary judgment in defendants’ favor on Smith’s

First Amendment discrimination claim. 

III. Conclusion

Smith has failed to produce evidence that his allegedly

inadequate job performance was a pretext for unlawful

discrimination of any kind. Accordingly, we will affirm the

judgment of the District Court.