NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 15

- 2350

_____________ STEPHANIE FAHNESTOCK, Appellant

v. CARLISLE REGIONAL MEDICAL CENTER

_____________________________________ On Appeal from the Un ited 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

.

____________ 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 Def endant 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 Discrimin ation and Employment Act (ADEA), alleging that her termination fro m 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.
W e 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 patient s fi led 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 suspe nsion 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 warnin g for failing to follow the proper protocol for taking sick leave. On May 12, she received a written warning after a patient complained that Fahnesto ck mad e3

inappropriate comments regarding the patient

. On June 16 , she was issued a written warning after sh e 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

. O n November 23, she received a written warning detailing several performance concerns, including two compla ints from providers regarding poor imaging quality, general customer service problems, and t hree 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, t h e 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 Di recto r sent an email entitled “Termination Review” to the Regional Director of Human Resources detailing Fahnestock’s 2011 disciplinary actions

. Fahnestock was te rminated 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 fu ll

- time position three months after Fahnestock’s termination. Fahnestock filed a Complaint against CRMC on July 9, 2013 , alleging age dis cr imination 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. Discussion 1

1 The District Court had jurisdiction under 28 U.S.C. § 1331 ; w e have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plen ary review over an order granting4

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

at least f orty 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
d ecision 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 u nder 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 prim a 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

t o th e 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 entitle d to judgmen t as a matter of law.” Fed. R. Civ. P. 56(c).5

age discrimination. Id

. To show pretext , the employee must p oint 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 empl oyer’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 tw o 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 eviden ced 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
discrim ination. It did not. First, Fahnestock ar gues 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 ci tations 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 later6

unsatisfactory evaluations are pretextual.” Billet v. CIGNA Corp. , 940 F.2d 812, 826 (3d Cir. 1991). I t 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 t he change in standards and protocols following CRMC’s acquisition of a
new radiolo gy 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 pro duced 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, offere d 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. T he 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 document s are relevant and admissible because they help explain

. . . the employer’s conduct .”). T he disciplinary
citations are thus admissible and were properly considered on summary judgment. Finally , Fahnestock argues that a reasonable jur y c ould 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 circumstances7

surrounding Rex assuming the position full

- time , when the original p lan was to hire Rex

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

. Id

. T his argument is mere speculation, and speculation does not create a genuine issue of fact. See Lexington Ins. Co. v. W. P a. Hosp. , 423 F.3d 318, 333 (3d Cir . 2005)

. Further, t he 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 allegedl y 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

term ination, 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 Distr ict C ourt; thus, it has been waived.