NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1463

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SHELLY SALAK NEWELL,

Appellant

v.

HERITAGE SENIOR LIVING, LLC;

WESTRUM HANOVER, LP, trading as TRADITIONS OF HANOVER

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-12-cv-06094)

District Judge: Hon. Lawrence F. Stengel

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Submitted Under Third Circuit LAR 34.1(a)

December 20, 2016

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Before: SMITH, Chief Judge, McKEE and SHWARTZ, Circuit Judges.

(Filed:December 20, 2016)

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OPINION

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SHWARTZ, Circuit Judge.

 

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

constitute binding precedent.
2

Shelly Salak Newell appeals from the District Court’s order granting summary 

judgment in favor of Defendants on her retaliation claim under the Fair Housing Act, 42 

U.S.C. § 3601 et seq. (“FHA”). For the reasons set forth below, we will affirm. 

I

Defendant Westrum Hanover, LP, t/a Traditions of Hanover (“Traditions”), is an 

independent living community for seniors that rents apartments and provides certain 

services to its residents. Defendant Heritage Senior Living, LLC provides management 

services to Traditions. In October 2010, Newell began working at Traditions as a 

marketing manager and reported directly to the marketing director, Jennifer Murphy. 

Newell’s job description included “assisting [Murphy] in representing the residence in a 

positive light, maintaining favorable relationships with hospitals, local physicians, and 

other marketing and referral sources.” Supp. App. 205. 

During the first six months of her employment, Newell received generally positive 

feedback on her performance, but she struggled with using Traditions’ computerized 

sales system and with getting potential residents to visit the community. In April 2011, 

Newell requested Murphy’s permission to run for election to the board of Lehigh Valley 

Aging in Place (“LVAIP”), a local organization in Traditions’ industry. Murphy denied 

this request, citing concerns about Newell’s performance. Around this time, Newell 

developed a tense working relationship with Murphy and reportedly made critical 

statements about Murphy at an LVAIP event. Despite the poor working relationship 

between Newell and Murphy, Newell received a very positive annual performance 
3

evaluation from Murphy in October 2011, but Murphy noted that Newell “can be very 

opinionated and needs to be willing to consider other points of view.” Supp. App. 214. 

Shortly after Newell started working at Traditions, Newell raised concerns that 

Traditions’ process for evaluating the “appropriateness” of potential residents violated the 

FHA. Supp. App. 171. She thereafter made specific complaints. In January 2012, 

Newell told Murphy that Traditions violated the FHA by discriminating against a 

prospective resident couple because the husband used a wheelchair. Newell also 

expressed concern about certain draft documents circulating in late February 2012 setting 

forth guidelines to determine whether a prospective resident was a proper fit for 

Traditions. One such document contained language indicating that, to be successful in 

the independent living environment of Traditions, the ideal residents “require minimal or 

no assistance, medical or otherwise,” are independently mobile, capable of feeding and 

dressing themselves, independent regarding personal hygiene, and responsible for 

managing their own medications. Supp. App. 228. Another document stated that “[w]e 

are looking for new residents with a high acuity level” and that the residents needed to be 

able to take their own medications, get to and from the dining room on their own, transfer 

in and out of a dining room chair by themselves, and manage any incontinence issues. 

Supp. App. 247. Newell wrote to Murphy and Diane Nowakowski, Traditions’ Executive 

Director, that these policies were “too subjective and restrictive” and required residents to 

be “strictly independent,” Supp. App. 228, even though Traditions had current residents 

who required support, and that it therefore appeared that Traditions had different criteria 

for new residents. Although Newell’s written comments did not explicitly reference the 
4

FHA, Newell testified that, in the days that followed the circulation of these documents, 

she specifically told Murphy that the proposed admission guidelines violated the FHA. 

By late February 2012, Newell’s relationship with Murphy had deteriorated, and 

Murphy told Newell that she needed to maintain a more positive attitude, show Murphy 

respect, and take direction from Murphy without pushback. Their working relationship 

did not improve, and Murphy and Nowakowski met with Newell in late March 2012 to 

discuss her performance. During the meeting, Murphy and Nowakowski told Newell that 

she needed to improve her attitude, stop commiserating with the staff and residents, and

communicate in a respectful manner with Murphy. Newell was then placed on a 30-day 

project or “action plan” under Murphy’s direct supervision. Supp. App. 273. 

Around the same time, Newell anonymously contacted the Fair Housing Council 

of Suburban Philadelphia and spoke to Megan Bolin. Newell told Bolin that she worked 

at an independent living community that was refusing to accept new residents in 

wheelchairs or scooters and had a policy of discouraging disabled people from joining the 

community. Bolin informed Newell that the practices she described likely violated the 

FHA. 

After Newell’s phone call with Bolin, Murphy asked Newell to enter “loss 

leads”—explanations regarding why a lead on a potential resident was not pursued—into 

Traditions’ computer system, including identifying when a potential resident was deemed 

inappropriate due to hygiene or mobility issues. Newell informed Murphy that entering 

this information violated the FHA, and she refused to comply. Murphy dismissed this 
5

exchange as a typical instance of Newell pushing back on her requests and did not inquire 

as to why Newell felt that entering the loss leads would violate the FHA. 

In April 2012, Murphy received a call from a realtor who worked with Traditions’

residents to sell their homes. The realtor told Murphy that she had spoken with Newell

about a particular couple’s house that was about to go on the market, and Newell had 

indicated that she felt the price was too low. The realtor also told Murphy that Newell’s 

husband, an electrician, had given the couple a quote regarding electrical work to their 

home. After hearing this story, Murphy told Nowakowski and David Lovitz, the majority 

partner of Heritage Senior Living, that she felt the situation presented a conflict of 

interest. Lovitz met with Newell and explained to her that her husband’s financial 

involvement with residents was inappropriate, but he found that Newell was “defiant” in 

response. Supp. App. 99. Ultimately, however, Newell’s husband did not provide a bid 

or do work for the residents. 

In early May 2012, Newell had conversations with Nowakowski regarding the 

FHA. Nowakowski asked Newell where she obtained her information regarding the 

FHA, and Newell explained that she learned about the FHA from communications with 

the Fair Housing Council of Suburban Philadelphia in connection with her previous job. 

Nowakowski asked for contact information for the Fair Housing Council, and, on May 8, 

2012, Newell emailed Bolin’s contact information to Nowakowski. 

The same day, Newell called Bolin and identified herself and her employer. 

Newell indicated that she told Traditions personnel that its policies violated the FHA. 
6

Newell told Bolin she believed Traditions was retaliating against her for opposing its 

allegedly unlawful conduct. 

Around the same time, Newell once again asked Murphy’s permission to become 

a member of the LVAIP board and Murphy agreed. On May 8, 2012, the LVAIP sent out 

a newsletter to all members of the organization that included statements from the

nominees for the board. Newell’s statement indicated that she wanted to become a board 

member because “[i]t will be challenging in many ways,” and then said that the “[m]ost 

challenging part will be trying to convince my employer that this will be time well spent 

and more so, great exposure for them.” App. 391. Murphy received the newsletter,

forwarded it to Nowakowski, and indicated that she found Newell’s statement to be 

“disrespectful” and “negative PR.” Supp. App. 320. Nowakowski then sent an email to 

Lovitz that included Newell’s statement. Lovitz responded that it was a “perfect example 

of the problem,” which appears to be a reference to Newell’s attitude issues, and that he 

was considering terminating her. Supp. App. 324. 

On May 14, 2012, Nowakowski and Murphy met with Newell and informed her 

that her statement on her LVAIP application cast Traditions in a negative light by 

implying that Traditions did not value involvement in LVAIP. They further referenced 

the conflict of interest issue with Newell’s husband and the LVAIP event where Newell 

had openly criticized Murphy. Newell was then sent home. That evening, Newell 

contacted Bolin and asked for direction on filing a discrimination claim. The following 

day, Newell was fired.
7

In October 2012, Newell filed a complaint in the United States District Court for 

the Eastern District of Pennsylvania, alleging that Defendants retaliated against her in 

violation of the FHA. The District Court ultimately granted summary judgment in 

Defendants’ favor, concluding that Newell failed to produce sufficient evidence of a 

causal link between her termination and protected activity and, even assuming a causal 

link existed, had failed to demonstrate that Defendants’ legitimate, non-discriminatory 

reasons for terminating her were pretextual. Newell appeals.

II1

A

The FHA makes it unlawful to “coerce, intimidate, threaten, or interfere with any 

person . . . on account of his having aided or encouraged any other person in the exercise 

or enjoyment of” rights under the FHA. 42 U.S.C. § 3617. We examine Newell’s FHA 

retaliation claim under the burden-shifting framework set forth in McDonnell Douglas 

 

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 

1343(a)(4). We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the 

District Court’s grant of summary judgment is plenary. Mylan Inc. v. SmithKline 

Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply the same standard as the 

District Court, viewing facts and making all reasonable inferences in the non-movant’s

favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005). 

Summary judgment is appropriate where “there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

“An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable 

jury could find for the non-moving party, and a factual dispute is material only if it might 

affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d 

418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986)). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make “a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 

323 (1986).
8

Corp. v. Green, 411 U.S. 792 (1973). See Walker v. City of Lakewood, 272 F.3d 1114, 

1128 (9th Cir. 2001). Under this framework, a plaintiff must first establish a prima facie 

case of retaliation by showing that “(1) the employee engaged in a protected employee 

activity; (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.” Farrell v. Planters 

Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000) (citations omitted). Once the prima 

facie case is established, the burden of production shifts to the employer to articulate a 

legitimate, non-discriminatory reason for the adverse employment action. Fuentes v. 

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citation omitted). “The employer satisfies its 

burden of production by introducing evidence which, taken as true, would permit the 

conclusion that there was a nondiscriminatory reason for the unfavorable employment 

decision.” Id. (citation omitted). Once the employer satisfies this “relatively light” 

burden, “the burden of production rebounds to the plaintiff, who must now show by a 

preponderance of the evidence that the employer’s explanation is pretextual.” Id. “[T]o 

avoid summary judgment, the plaintiff’s evidence rebutting the employer’s proffered 

legitimate reasons must allow a factfinder reasonably to infer that each of the employer’s 

proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did 

not actually motivate the employment action (that is, the proffered reason is a pretext).” 

Id. at 764 (citations omitted) (emphasis in original). The plaintiff may discredit the 

employer’s proffered reasons by demonstrating “such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate 
9

reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of 

credence,’” and thereby allow a factfinder to conclude that the employer did not act for 

the proffered reasons. Id. at 765 (citations and emphasis omitted). 

B

We will assume for the sake of argument that Newell has established a prima facie 

case of retaliation. Accordingly, the burden of production shifts to Defendants to come 

forward with non-discriminatory reasons for the adverse employment action. Here, 

Defendants provided three legitimate, non-discriminatory reasons to justify Newell’s 

termination: (1) Newell’s LVAIP board application cast Traditions in a negative light, in 

violation of Newell’s core job function to represent Traditions in a positive light; (2) 

Newell created a conflict of interest by involving herself and her husband’s electrical 

business in a resident’s sale of property; and (3) Newell displayed a poor attitude and a 

chronic pattern of insubordination and disrespect for her superiors. These reasons, taken 

as true, satisfy Defendants’ burden of production. Therefore, the burden returns to 

Newell, and we will now consider whether Newell has come forth with sufficient 

evidence to show that all of these reasons were pretextual. 

Newell argues that her comment about Traditions on her LVAIP board application 

is an implausible basis for her termination because: (1) she received permission to submit 

an application for the LVAIP board; (2) her statement in her application was true because 

Murphy lacked enthusiasm about LVAIP; and (3) another employee cast Traditions in a 

negative light by telling a prospective resident that she could not live at Traditions 

because she used a wheelchair, yet she did not face discipline. Appellant’s Br. 45-46. 
10

First, the fact that Newell received permission to file an application for the LVAIP board 

is irrelevant because it does not indicate that Defendants would have approved of the 

statement Newell made on her application. Second, it is irrelevant whether the negative 

statement in Newell’s application was a true statement about Murphy’s attitude toward 

LVAIP. Defendants took issue with Newell’s statement not because it was false but 

because the statement indicated that Defendants did not believe LVAIP was a valuable 

organization. Even assuming Defendants did not value LVAIP, Defendants reasonably 

would not want this view shared with other professionals in their industry. Third, the 

comparison to her coworker’s statement is unpersuasive. While the statement is 

troubling, it was made privately to a potential resident, whereas Newell’s statement was 

viewed by the entire membership of LVAIP and publicly embarrassed Defendants. 

Therefore, there is no inconsistency between Defendants’ treatment of Newell and her 

colleague. 

Because Newell must establish that each of the employer’s proffered reasons was 

pretextual, Fuentes, 32 F.3d at 764, and Newell has not established that Traditions’ 

decision to terminate her based on the statements in her LVAIP application was 

pretextual, Newell has failed to carry her burden. Accordingly, the District Court 

correctly held that Newell failed to produce sufficient evidence to demonstrate that all of 

Defendants’ proffered legitimate, nondiscriminatory reasons for her termination were 

pretextual.2

 

2 Fuentes suggests that a plaintiff may be absolved from discrediting each 

legitimate reason if the employer proffers “a bagful of legitimate reasons” and the 
11

Moreover, the record here does not reflect the type of temporal connection 

between her comments about FHA compliance and her termination sufficient to infer that 

the employer’s proffered legitimate reason for termination was pretextual. See, e.g., 

Farrell, 206 F.3d at 279-81, 286 (noting that temporal proximity can provide a basis to 

infer a causal link between the protected activity and the alleged retaliatory act, and 

explaining that the evidence applicable to the causation question is often probative at the 

pretext stage). Newell started working for Traditions in October 2010, and she testified 

that she began mentioning potential FHA violations “very shortly after [she] started.” 

Supp. App. 171. Newell was not placed on the 30-day action plan until March 2012 and 

was not fired until May 2012, more than a year after she began raising her FHA concerns. 

While the record shows that Newell raised her FHA concerns many times, including 

providing Nowakowski with information about the Fair Housing Council just days before 

she was terminated, the intervening disclosure of her statements about Traditions on her 

LVAIP board application interrupts any temporal causal link between her FHA advocacy 

and her termination. For this additional reason, Newell has not shown the reason for her 

termination was pretextual.3 

III

 

plaintiff casts doubt on “a fair number of them.” 32 F.3d at 764 n.7. Here, however, 

Traditions provided only three reasons for Newell’s termination, one of which we have 

explained no reasonable jury could conclude was pretext. The other two reasons, namely 

Newell’s alleged poor attitude and insubordination and the conflict of interest issue, were 

discussed directly with her as issues arose during her employment. Thus, this case does 

not involve the type of “bagful” of post-hoc rationalizations imagined in Fuentes. 

3 Although the evidence does not establish that Newell was terminated due to her 

FHA advocacy, the concerns she raised about Defendants’ alleged practices are, to say 

the least, troubling. 
12

For the foregoing reasons, we will affirm the order of the District Court granting 

summary judgment for Defendants.