NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-2350

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STEPHANIE FAHNESTOCK,

Appellant

v.

CARLISLE REGIONAL MEDICAL CENTER

_____________________________________

On Appeal from the United States District Court for the 

Middle District of Pennsylvania

(M.D. Pa. No.: 1-13-cv-01872)

District Judge: Honorable John E. Jones, III

_____________________________________

Submitted under Third Circuit LAR 34.1(a)

on July 15, 2016

(Filed: August 8, 2016)

Before: SMITH, ROTH and RENDELL, Circuit Judges.

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O P I N I O N*

____________

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
2

RENDELL, Circuit Judge,

Plaintiff-Appellant Stephanie Fahnestock, a former employee of Defendant

Carlisle Regional Medical Center (CRMC) appeals the District Court’s order granting 

Defendant’s motion for summary judgment. Fahnestock brought a single claim under the 

Age Discrimination and Employment Act (ADEA), alleging that her termination from 

CRMC was illegal age discrimination. The District Court found that CRMC proffered a 

legitimate nondiscriminatory reason for terminating her employment and that the 

nondiscriminatory reason for her termination was not a pretext for age discrimination. 

We will affirm the District Court’s Order. 

I. Background

Throughout Fahnestock’s twenty-eight year employment with CRMC, from July 

2, 1984, until April 30, 2012, she was the subject of several complaints and disciplinary 

actions. In 1999, two patients filed complaints against Fahnestock, alleging unacceptable 

demeanor with patients. In 2007, she was reprimanded for using inappropriate language 

at the front desk while a patient was present in the waiting area. In 2008, Fahnestock 

received a one-day suspension for failing to follow the proper procedure for utilizing flex 

time. 

Disciplinary action against Fahnestock became frequent in 2011 after a new 

administration took over the radiology department at CRMC. On January 6, she was 

issued a verbal warning for failing to follow the proper protocol for taking sick leave. On 

May 12, she received a written warning after a patient complained that Fahnestock made
3

inappropriate comments regarding the patient. On June 16, she was issued a written 

warning after she risked harm to a patient by incorrectly placing a biopsy guide on a 

transducer, resulting in the patient’s being placed in an incorrect position. On November 

23, she received a written warning detailing several performance concerns, including two 

complaints from providers regarding poor imaging quality, general customer service 

problems, and three quality assurance errors. Notably, Fahnestock told a patient, without 

the authority to do so, that her imaging results were normal and allowed her to leave. In 

fact, the results were abnormal and indicated serious issues, and the patient had to be 

contacted and admitted to the hospital. In December 2011, Fahnestock received a 62% 

on her annual performance evaluation. 

In April 2012, CRMC’s Human Resources Director sent an email entitled 

“Termination Review” to the Regional Director of Human Resources detailing 

Fahnestock’s 2011 disciplinary actions. Fahnestock was terminated several days later for 

“unsatisfactory performance.” CRMC hired Emily Rex, who was twenty-three at the 

time, as a replacement. She was originally hired on an as-needed basis, but she assumed 

the full-time position three months after Fahnestock’s termination. 

Fahnestock filed a Complaint against CRMC on July 9, 2013, alleging age 

discrimination under the ADEA, 29 U.S.C.A. § 621, et seq. CRMC filed a Motion for 

Summary Judgment on September 9, 2014, which the District Court granted.

II. Discussion1

 

1 The District Court had jurisdiction under 28 U.S.C. § 1331; we have jurisdiction 

pursuant to 28 U.S.C. § 1291. We exercise plenary review over an order granting 
4

Under the ADEA, it is unlawful for an employer to terminate an employee who is 

at least forty years old on the basis of age. 29 U.S.C. § 623(a)(1); Fakete v. Aetna, Inc.,

308 F.3d 335, 337 (3d Cir. 2002). To prevail on an ADEA claim, the Plaintiff must show 

that her age actually motivated and had a determinative influence on the employer’s 

decision to terminate. Fakete, 308 F.3d at 337. A Plaintiff can meet this burden by 

presenting indirect evidence of discrimination that satisfies the three-step framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Fakete, 308 F.3d 

at 338.

The first step under McDonnell Douglas is to show a prima facie case of 

discrimination. The prima facie case for age discrimination under the ADEA requires 

showing that the employee: (1) is over forty years old; (2) is qualified for the position in 

question; (3) suffered an adverse employment decision; and (4) was replaced by someone 

sufficiently younger to permit a reasonable inference of age discrimination. See Potence 

v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). Once the prima facie case 

is established, the second McDonnell Douglas step shifts the burden of production to the 

employer to show a legitimate nondiscriminatory reason for the adverse employment 

decision. Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If the employer 

successfully provides a nondiscriminatory explanation, the burden of production returns 

to the employee to demonstrate that the employer’s articulated reason was a pretext for 

 

summary judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary 

judgment is appropriate if the evidence shows “that there is no genuine issue as to any 

material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(c). 
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age discrimination. Id. To show pretext, the employee must point to evidence “from 

which a factfinder could reasonably either (1) disbelieve the employer’s articulated 

legitimate reason[]; or (2) believe that an invidious discriminatory reason was more likely 

than not a motivating or determinative cause of the employer’s action.” Fuentes v. 

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Although the evidentiary burden of production 

shifts under the McDonnell Douglas framework, the burden of persuasion remains with 

the Plaintiff. Id.

It is undisputed that the first two steps of the McDonnell Douglas analysis are 

satisfied in this case. Fahnestock has established a prima facie case of age 

discrimination, and CRMC has presented a legitimate nondiscriminatory explanation for 

her termination—poor job performance as evidenced by multiple disciplinary actions. 

The sole issue on appeal is whether the District Court erred when it concluded that 

Fahnestock failed to show that CRMC’s reason for termination was a pretext for age 

discrimination. It did not.

First, Fahnestock argues that the disciplinary actions against her were “so far 

attenuated [that] no reasonable juror would believe they had any bearing on the 

Defendant’s decision to terminate in 2012.” (Appellant Br. 16). She claims that CRMC 

started targeting her with citations in 2011, and that it “strains credulity” that her work 

“be[came] poor after decades of work with no problems.” Id. However, the facts show 

that Fahnestock did not have “decades of work with no problems.” In fact, she had 

disciplinary actions in 1999, 2007, and 2008. Further, even if the only reprimands she 

had received were from 2011, “prior good evaluations alone cannot establish that later 
6

unsatisfactory evaluations are pretextual.” Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d 

Cir. 1991). It is thus irrelevant that the majority of Fahnestock’s disciplinary incidents

occurred only in 2011. Fahnestock may have received more disciplinary citations in 

2011 due to the change in standards and protocols following CRMC’s acquisition of a 

new radiology group. As the District Court noted, Fahnestock never challenged the 

veracity of the disciplinary citations themselves, indicating that they may have indeed 

been legitimate, not pretextual. 

Second, Fahnestock argues that the disciplinary citations produced by CRMC 

constitute improper hearsay evidence because they referenced unidentified physicians 

and it was undisclosed when or how the complaints were made. “Hearsay is a statement, 

other than one made by the declarant while testifying at trial, offered in evidence to prove 

the truth of the matter asserted.” United States v. Sallins, 993 F.2d 344, 346 (3d Cir. 

1993); Fed. R. Evid. 801(c). The citations in this case do not constitute hearsay because 

they were not offered as evidence to prove the truth of the matter asserted. The 

documents were being offered to explain CRMC’s motivation for terminating

Fahnestock’s employment, not to assert the truth of the statements therein. See, e.g.,

Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (“such documents are relevant and 

admissible because they help explain . . . the employer’s conduct.”). The disciplinary

citations are thus admissible and were properly considered on summary judgment. 

Finally, Fahnestock argues that a reasonable jury could determine that CRMC’s 

explanation her termination was pretextual given the “wholly inadequate explanation for 

her replacement by Emily Rex.” (Appellant Br. 18). She alleges that the circumstances 
7

surrounding Rex assuming the position full-time, when the original plan was to hire Rex 

on an as-needed basis, present a dispute of material fact for trial. Id. 

This argument is mere speculation, and speculation does not create a genuine issue 

of fact. See Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333 (3d Cir. 2005). 

Further, the circumstances surrounding the hiring of a replacement is irrelevant to 

CRMC’s initial motivation behind terminating Fahnestock. A reasonable jury could thus 

determine that CRMC’s explanation was not pretextual, even considering the allegedly 

inadequate explanation for the commencement of Rex’s employment.

2

III. Conclusion

Fahnestock failed to show pretext because she did not provide evidence from 

which a reasonable factfinder could disbelieve CRMC’s articulated legitimate reason for 

termination, and has failed to show that age discrimination was more likely than not a 

motivating cause of CRMC’s decision to terminate. See Fuentes, 32 F.3d at 764. Thus, 

we will affirm the District Court’s order granting CRMC’s motion for summary 

judgment. 

 

2 Fahnestock also argues that the citations violate Fed. R. Civ. P. 26(a)(1)(A)(i) 

and 37(c)(1) because the identities of the physicians were never disclosed. This argument 

was not raised before the District Court; thus, it has been waived.