NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 12

- 1729

_____________ ROBERT BALL, Dr., Appellant

v. EINSTEIN COMMUNITY HEALTH ASSOCIATES, INC

. ; STEVEN SIVAK, M.D., Me dical Director, ECHA, Inc.;

LUANN TRAINER, Executive Director, ECHA, Inc.

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 10

- cv - 2474) District Judge: Hon. J. Curtis Joyner

_____________ __ Submitted Under Third Circuit LAR 34.1(a) January 10, 2013 Before: RENDELL, FISHER, and JORDAN , Circuit Judges

. (Filed: February 14, 2013 )

_______________ OPINION OF THE COURT

_______________ JORDAN, Circuit Judge

. Appellant Robert Ball appea ls an order grant ing summary judgment to Einstein Community Health Associates, Inc. (“ECHA”), Steven Sivak, and Luann Trainer on2 Ball’s claims of age and disability discrimination

. For the following reasons, we will affirm.
I. Background Ball is a primar y care physician who maintained a private medical practice in North Philadelphi a from 1966 to 1998

. In November 1998, when he was 63 years old, Ball sold his pr actice to ECHA, a corporation that operates medical practices and employs physicians in the gre ater Philadelphia area. He then worked for ECHA, pursuant to one

- or two

- year contract terms, until ECHA declined to renew his employment contract in 2009. Ball’s first dispute with ECHA occurred i n 2004, when the company’s former medical d irector notif ied Ball that his contract would not be renew ed due to his alleged low work productivity. Ball did not assert age or disability discrimination at that time , but he nonetheless protest ed the non rene wal to a b oard m ember of ECHA’s parent
company , which resu lted in a 90

- day extension of his employment contract. During that temporary extension, Dr. Steven Sivak became ECHA’s Medical Director , and he decided to renew Ball’s contract. Around that same time, Ball developed Chronic Inflammatory Demyelinating Pol yneur opathy (“CIDP”), a disabling condition of the nervous system that significantly limited his physical mobility , but did not affect his ability to perform the essential functions of his job as a physician

. In 2008, Sivak and Luann Trainer , ECHA’s Vice President for Physician Services, began to investigate several aspects of Ball’s job performance. After auditing Ball’s patient files , they determined that Ball had included insufficient clinical documentation in3 his patient progress notes to support the proper billing codes

. 1 T o address that concern, ECHA provided Ball with training sessions on billing and coding in February, March, May , and August 2008

. Ball , however, still failed his May, September , and November
2008 billing and coding audits. ECHA also reviewed Ball’s recent n arcotics prescription history , after re ceiving complaints that his drug

- seeking patients were aggressively demanding narcotic pr escription refills and disrupting the office. That investigation revealed that , although narcotic s prescription s by other physicians accounted for between 10.92% and 19.57% of t otal prescriptions, 34.05% of Ball’s total prescriptions were for narcotics

. Furthermore, ECHA’s prescription record s appeared to show that Ball sometimes wrote duplicate narco tic s prescriptions for his patient s
. Finally, Sivak and Trainer examined whether Ball was properly following ECHA’s Pa in Management Policy, which requires doctors to refer drug

- seeking patient s to a pain management specialist and to refuse narcotic s p resc riptions to patients who do not adhere to the referral . They concluded that he was not following that policy

. 2

1 Private health insurers, Medicare, and Medicaid use a standardized system for reimbursement that requires that physicians record five digit billing codes in their patient progress notes and other med ical records. Those codes correspond to “Relative Value Units” (“RVU s”), which “attempt to account for the work performed by a physician, the physician’s training and expertise, the type of equipment used and the professional liability insurance required to perform a particular coded service. Insurers, including Medicare, assign a physician fee schedule based on a dollar

- amount multiplier per approved RVU.” Hill v. Gozani , 638 F.3d 40, 47 (1st Cir. 2011). Physicians at ECHA are required to enter the pro per codes to receive compensation. “Failure to do so can result not only in under

- or over - payment s , but in extreme cases to civil and criminal liability for fraud.” (App. at 116). 2 Ball contests the basis for that conclusion and produced evidence show ing that he had generally complied with the Pain Management Policy.4 On November 11, 2008, Sivak gave Ball notice that ECHA would not renew his contract under its current terms and conditions when it expired i n February 2009. 3

Ball subsequently filed this law suit agains t ECHA, Sivak , and Tr ainer (collectively, “Appellees ”) . He alleged that Appellee s declined to renew his contract because of his age and his disability, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § § 621

- 34 , the Americans with Disabilit ies Act

o f 1990 (“ADA”), 42 U.S.C. §§ 1211 1

- 17 , and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § § 951

- 63

. After discovery, Appellees filed a motion for summary j udgment, which the District Court gran ted as to all of Ball’s claims. A pplying the burden

- shifting framework of McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973) , At the end of the year, Trainer and Sivak met with Ball and informed him that his contrac t would not be renewed at all. They explained to Ball that “ECHA has ... determined that offering you a new contract does not fit into its strategic plans,” and thus that his employment with ECHA would cease on February 28, 2009, when his contract expired. (App. at 42

- 43.) At that point, Ball was 73 years old, and he still suffered from CIDP

.

4

3 The terms of Ball’s employment contract required that he be given 90 days’ written notice that his contract would not be renewed. t he Court concluded that Appellees had established legitimate nondiscriminator y

4 Under the McDonnell Douglas framework, the plaint iff must first establish a prima facie case of employment discrimination. Maynard v. Rivera , 675 F.3d 225, 229 (3d Cir. 2012). Then, the employer “bears the burden of production to articulate some legitimate, statutorily

- approved reason for the plaintiff ’s discharge.” Id. (internal quotation marks omitted). Finally, if that burden is met, the burden of production “shifts back to the plaintiff to show, by a preponderance of the evidence, that the proffered reason is pretextual.” Id. (internal quotation marks omitted).5 reasons for their decision not to renew Ball’s contract, and that Ball had fail ed to demonstrate that Appellees ’ proffered reasons were pretextual. 5
Ball then filed this timely appeal.
II . Discussion 6 The p arties do not dispute the District Court’s conclusion that Ball “has established a prima facie case of age and disability disc rimination ,” or that Appellees have met their burden of prod ucing evidence of legitimate nondiscriminator y reasons for their employment decision

. (App. at 15

. ) At issue on appeal is whether Ball established a genuine issue of material fact regarding whet her Appellee s’ proffered reasons are merely pretext s for impermissible discri mination on the basis of age or disability

.

5 Ball’s ADEA, ADA , and PHRA claims are all governed by the McDonnell Douglas framework. Tomasso v. Boeing Co. , 445 F.3d 702, 704 (3d Cir. 2006) (concluding that ADEA and PHRA claims are both governed by McDonnell Douglas ); Williams v. Ph ila. Hous. Auth. Police Dept. , 380 F.3d 751, 759 (3d Cir. 2004) (applying that framework to an ADA claim). 6 The District Court had subject matter jurisdiction over the ADEA and ADA claims pursuant to 28 U.S.C § 1331, and over the PHRA claim pursuant to 28 U.S.C § 1367. We have jurisdiction over the appeal under 28 U.S.C § 1291. The District Court’s grant of summary judgment is subject to plenary review. Carrasca v. Pomeroy , 313 F.3d 828, 832

- 33 (3d Cir. 2002). “Summary judgment is appropriate wher e the court is satisfied ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986) (quoting Fed. R. Civ. P. 56(c)). When the moving party “does not bear the burden of persuasion at trial,” however, it “may meet its burden on summary judgment by showing that the nonmoving party’s ... evidence is insufficient to carry its burden of persuasion at trial.” Sempier v. Johnson & Higgins , 45 F .3d 724, 727 (3d Cir. 1995). The “mere existence of some alleged factual dispute ... will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby , Inc. , 477 U.S. 242, 247

- 48 (1986). In reviewing the record, we must construe all reasonable inferences in the light most favorable to the nonmoving party. See i d. at 255; Sempier , 45 F.3d at 727

- 28.6 T o demonstrate pretext under the summary judgment standard , a plaintiff must either (1) offer evidence that “casts sufficient doubt u pon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that eac h reason was a fabrication,” or (2) present evidence sufficient to support an inference that “discrimination was more likely than not a

... d eterminative cause of the adverse employment action.” Fuentes v. Perskie , 32 F.3d 759, 762 (3d Cir. 1994). To meet that burden, a plaintiff “cannot simply show that the employer’s decision was wrong or mistaken

. ” Id. at 765. The fact that an employer m ade a poor or unwise decision does not make that decision discriminatory. See Bre wer v. Quaker State Oil Ref. Corp. , 72 F.3d 326, 332 (3d Cir. 1995) (“[A]n employer may have any reason or no reason for discharging an employee so long as it is not a discri minatory reason.”). E vidence undermining an employer’s proffered legitimate reasons therefore must be sufficient to “support an inference that the employer did not act for its stated reasons.” Sempier v. Johnson & Higgins , 45 F.3d 724, 731 (3d Cir. 1995)

. A non - moving plaintiff can meet that burden at the summar y judgment stage by “demonstrat [ing] such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reaso nable factfinder could rationally find them ‘unworthy of credence, ’” and thus infer that nondiscri minatory reasons were not the cause for the adverse employment action

. Fuentes , 32 F.3d at 765. Appellee s provide three nondiscriminatory reasons for their decision not to renew Ball’s employment. First, Ball repeated ly failed billing and coding audits, even after multiple traini ng opportunities

. Second, Ball prescrib ed narcotics at about twice the rate7 of the other physicians i n his office, and he appeare d to have sometimes written dup licate narcotic s prescriptions for the same patients on the same day. Third, Ball violated
ECHA’s Pain Management Policy by failing to refer drug

- seeking patients to a pain management specialist

. Appellees claim that each o f those specific reasons is demonstrative of their overall motivation for not renewing Ball’s contract: he did not “represent[] the kind of physician that [they] would like to see within Einstein Community Health Associates.” (App. at 1 25.) In reviewin g the District Court’s grant of summary judgment, w e must “look carefully at each of [ the employer’s ] pr offered reasons as well as [plaintiff ’s ] claim of pretext regarding each of these reasons. ” Kautz v. Met

- Pro Corp. , 412 F.3d 463, 468 (3d Cir. 2005). If Ball’s evidence rebutt ing Appellee s’ proffe red legitimate reasons permits a factfinder to conclude that each of those reasons was either a “ post hoc fabrication ” or otherwise did not actually prompt the employment action , then summary judgment was inapp ropriate. 7

7 We acknowledged in Fuentes that in some circumsta nces a plaintiff does not have to rebut every proffered reason in order to survive summary judgment. First, as described above, a plaintiff can meet his burden by presenting enough evidence of discrimination to support an inference that, despite the proff ered legitimate reasons, the employment decision was in fact discriminatory. Fuentes , 32 F.3d at 762. Second, when a defendant presents “a bagful of legitimate reasons,” many of which the plaintiff successfully rebuts, “the plaintiff may not need to disc redit the remainder” if the defendant’s credibility has been so seriously undermined “that a factfinder may rationally disbelieve the remaining proffered reasons” without any evidence specifically discrediting them. Id. at 764 n.7. As we discuss infra in Part III.C, those situations do not apply here. Fuentes , 32 F.3d at 764 (citation omitted)

.8 A. Failure to Pass Billing and Coding Audits Appellees claim that one reason they declined to renew Ball’s contract is that “he was not meeting ECHA’s billing, coding and medical record keeping sta ndards.” (Appellee s’ Br. at 11.) B all does not dispute that he failed the May, September , and November 2008 b illing and coding audits, but instead argues that other physicians who failed the audi ts were treated differently by ECHA . In particular, he all eges that four younger, nondisabled doctors also failed billing and coding audit s, yet were given different training than he rec e i ved and remained empl oyed

. According to Ball, that difference in treatment demonstrates that his audit failures are a mere pr etext for what
was actua lly a discriminatory decision to end his employment

. We disagree, because th e evidence simply does not support Ball’s contention that he was treated differently than similarly situat ed younger or non disabled physicians. Ball
pr esen ts no evidence that the training he received was substantively different from that received by other physicians who also failed audits. The evidence in the record shows that he received at least four training opportunities on billing and coding in 2 00 8, including two one

- on - one training sessions

. Ball does not contest that fact , nor does he argue that other doctors received more or better training than he did . R ather, he claims only that some doctors received training from a different person, without providin g any evidence that the trai ning he received was in any way deficient or inferior. More importantly, Ball concedes that he is the only physician who never mana ged to pass a coding au dit. H e therefore can point to no similarly situated physicia n who retained a job at ECHA , because there are no physicians in analogous circumstances

. As9 Ball does not dispute , “[t]he maintenance of adequate medical records is a fundamental professional ... responsibility of a treating physician.” (Appellee s’ Br. at 7.) Ball has not present ed sufficient evidence for a reasonable factfinder to infer that ECHA’s concern about his repeated record

- keeping failure s w as either an after

- the

- fact excuse or otherwise did not actually prompt the employment action. Fuentes , 3 2 F.3d at 764

. On the contrary, ECHA’s persistent efforts to improve Ball’s coding a nd billing practices suggest that his continued inability to pass an audit was exactly what Appellees claim: a legitimate, nondiscriminatory explanation for why his contra ct was not renewed.
B

. Inappropriate Narcotic s Prescribing Practices Appellee s’ second proffered reason for not renewing Ball’s contract is that he overprescribed narcotics to his patients. 8

Ball makes n o mention, however, of Appellees’ explanation for why he was singled out: that disruptions caused by his drug

- seeking patients raised Appellees’ Ball argues that he has factually rebutted that claim , and that h e has produced evidence that he was singled out for particular scrutiny with regard to his prescribing practices. Specifically, Ball notes that ECHA ran a prescription record report “for no other ECHA physician, ” which he claims “provides clear evidence of disparate treatment.” (Appellant’s Opening Br. at 33

- 34. )

8 We consider the second reason, even though the first reason alone would generally be fatal to a plaintiff’s claim, because Ball argues that weaknesses in the other proffered reasons for his terminati on undermine Appellees’ credibility as a whole, such that a rational factfinder could reject all of their proffered reasons as pretextual. See Fuentes , 32 F.3d at 764 n.7 (concluding that in some instances “rejection of some of the defendant’s proffered r easons may impede the employer’s credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons”).10 concerns and triggered a n investigation into his prescription records

. Ball does not dispute that his patients caused disruptions , nor does he suggest that other physicians ’ patients caused similar disruptions. Moreover, he admits that his rate of prescribing
narcot ics seemed h igher than normal, that he did in fact produce duplicate narcotics prescriptions for patients , and that providing multiple narcotic prescriptions to a patient would be “a matter of concern to ECHA.” (App. at 142.) Even if a factfinder credited all of Bal l ’s innocent explanations for that seemingly

- incriminating data , 9

C

. Failure to Follow Pain Management Policy th ose explanations would, at best, suggest “that the employer’s decision was wrong or mistaken,” Fuentes , 32 F.3d at 765, not that ECHA fabricated its concern , id. at 764. Merely showing th at A ppellees may have been unwise to not renew his contract does not “support an inference that [they] did not act for [their] stated reasons.” Sempier , 45 F.3d at 731. Accordingly , Ball has failed to produce evidence that “casts sufficient doubt” upon A ppellee s’ proffered reason to establish that it was pretextual

. Fuentes , 32 F.3d at 762.

Appellee s’ final reason for not renewing Ball’s contract i s that he failed to follow
ECHA’s Pain Management Policy , wh ich required, among other things, that drug

- seeking patients be denied narcotics pre scriptions if they failed to visit a pain management specialist

. Ball argues that he was singled out for scr utiny regarding his adherence to the
p olicy , and that he was in full compliance with it

. Appellee s respond that, as with the

9 Ball claims that the duplicate prescriptions were created when he made errors entering a prescription and h ad to generate a new one. He argues that his high rate of prescribing narcotics correlates to the high number of narcotics

- using patients that he was assigned.11 investigation into his prescribing practices, Ball was singled out, but for good reason: only his narcotics

- seeking patients were caus ing disruptions at the medical clinic . Ball does not conte st that fact, but he maintains that his production of evidence demonstrating his s ubstantial compliance with the p olicy calls into question Appellee s’ overall credibility, such that a reasonable juror c ould find each of the Appellees ’ legitimate nondiscrim inatory reasons to be pretextual. At best, Ball may have produced sufficient evidence to create a factual dispute as to whether he complied with the Pain Management Policy

. Although Appellee s maintain that he continued to prescribe narcotics to patient s who did not attend the required pain management appointments, Ball disagrees, and he points to many instances in which he did comply with ECHA’s Policy. Ball has not , however, “demonstrate[d] such weaknesses, implausibilities , inconsistencies, incoheren cies, or contradictions” in that explanation for ECHA’s decisio n not to renew his contract that a reasonable factf inder could find it “ unworthy of credence.” Fuentes , F.3d at 765 ( internal quotation marks omitted). As already noted , showing that an emplo yment decision was simply “wrong or mistaken” is insufficient to demonstrate pretext, and such evidence thus does not help Ball to survive summary judgment. Id. Moreover, e ven assuming that Ball had cast sufficient doubt upon that alleged

reason for th e employment decision , we have held that “the falsity of one does not necessarily justify finding the remaining articulated reasons pretextual.” Logue v. Int’l Rehab. Assocs., Inc. , 837 F.2d 150, 155 (3d Cir. 1988). As we made clear in Fuentes , to avoid summary judgment, the plaintiff’s evidence must generally rebut the employer’s12 proffered legitimate reasons and allow a factfinder reasonably to infer that “ each of the employer’s proffered nondiscriminatory reasons ” was a fabrication or otherwise did not actually prompt the employment action. 32 F.3d at 764 (citation omitted)

. Although in some circumstances a plaintiff can avoid rebutting every legitimate reason an employer provides, those situations are limited to instances in which the employer ’s credi bility has been seriously undermined or t he plaintiff provides evidence of discriminatory intent. Id. at 762, 764 n.7. Ball’s evidence merely suggests that his performance may no t have been as poor as Appellee s allege , and it presents no serious challeng e to Appellees’ credibility

. Because s uch evidence is insufficient to support an inference of pretext, we conclude that the District Court properly granted Appellee s’ motion for summary judgment.
I II . Conclusion For the foregoing reasons, we will affirm the District Court’s grant of summary judgment.