NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 19-1554

________________ ROBERT HOLLY, Appellant

v. STRYKER CORPORATION; ST RYKER SALES CORPORATION

________________ On Appeal from the United States District Court for the Eastern Distri ct of Pennsylvania (E.D. Pa. No. 2:18-cv-00702) Honorable Berle M. Schiller, U.S. District Judge

________________ Submitted Under Third Ci rcuit L.A.R. 34.1(a) November 13, 2019 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: November 27, 2019)

________________ OPINION *

________________ KRAUSE, Circuit Judge

.

* This disposition is not an op inion of the full Court and pu rsuant to I.O.P. 5.7 does not constitute binding precedent.2 Robert Holly appeals the District Court’ s grant of summary ju dgment in favor of his former employer, Stryker, on his Age Discrimination in Employment Act and Pennsylvania Human Relations Act claims. 1 For the reasons that follow, we will affirm.
I. Discussion 2 We review a grant of summary judgment de novo and will affirm if “there is no genuine dispute as to any material fact” a nd if, viewing the facts “in the light most favorable to” Holly, Stryker is nonetheless “e ntitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Smith v. City of Allentown , 589 F.3d 684, 6 89 (3d Cir. 2009) (citation omitted). Stryker asserts that it had leg itimate, nondiscriminatory reasons 3 for terminating Holly’s employment as a surgical-tools sales representative: Holly received a customer complaint in violation of two performance an d behavior plans (PBPs) and had a history of customer complaints. See Willis v. UPMC Child ren’s Hosp. of Pittsburgh , 808 F.3d 638, 646 (3d Cir. 2015); Smith , 589 F.3d at 691–92. To de feat summary judgment, Holly

1 We have “determined that the interpreta tion of the PHRA is [generally] identical to that of federal anti-discrimination laws , including the ADEA,” so we analyze both claims together. Willis v. UPMC Children’s Hosp. of Pittsburgh , 808 F.3d 638, 643 (3d Cir. 2015).

2 The District Court had jurisdiction over Holly’s claims under 28 U.S.C. §§ 1331 and 1367(a), and we have jurisd iction under 28 U.S.C. § 1291.

3 Holly does not dispute that Stryke r has articulated these legitimate, nondiscriminatory reasons, and Stryker assumes arguendo that Holly met his burden of establishing a prima facie case, so we focus on the pretext prong of the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 804 (1973).3 must show that these reasons are pretextual by “point[ing] to evidence that would allow a factfinder to disbelieve the employer’s reason[s].” 4 Willis , 808 F.3d at 644 (citing Fuentes v. Perskie , 32 F.3d 759, 765 (3d Cir. 1994)). On appeal, Holly advances three arguments. First, he maintains it was “too weak and implausible,” Appellant’s Br. 47, for a customer complaint that he sold a product that was soon to be superseded by a new version to trigger the second PBP’s warning that any “further complain ts . . . will result in immediate termination, at any time,” A489, and that Stryker’s actual motive for firing him must therefore have been age discrimina tion. But whether we think the complaint was valid is immaterial, for the question befo re us “is not whether the employer made the best, or even a sound, business decision; it is wh ether the real reason is [discrimination].” Willis , 808 F.3d at 647 (alteration in original) (citation omitted). The facts that sales representatives were given di scretion when to notify custom ers of the product launch and that Stryker characterized the customer as fe eling “duped” when she did not specifically use the word “duped,” Appellant’s Br. 51, may go to the soundness of Stryker’s decision, but they do not sway our conclusion that Stry ker relied on this comp laint in firing Holly and did not use it as a mere pretext. Next, Holly frontally attack s the second PBP, arguing that Stryker exaggerated the complaint that prompted the PB P and, thus, that both the PB P and Stryker’s reliance on it

4 Holly does not poin t to evidence that “an invidi ous discriminatory reason was more likely than not a motivati ng or determinative cause,” as an alternative way to show pretext. Willis , 808 F.3d at 645 (internal quota tion marks and citation omitted).4 reveal pretext. While the PBP described the complaint as “many clinicians” being “frustrated” with Holly’s behavior “in the Op erating Room” and his “very aggressive . . . approach,” A489, Holly claims that only tw o non-clinicians comp lained, but not about his behavior in the operating room, and that th ey did not say in depositions that he was aggressive. Even crediting Holly’s version of the complaint, he does not draw out “such weaknesses, implausibilities, inconsistencie s, incoherencies, or contradictions,” Fuentes , 32 F.3d at 765, that would lead a reasonable juror to believe that Stryker inflated the severity of the complaint, much less that it fabricated this PB P to ultimately fire Holly for discriminatory reasons. Lastly, based on an implausible reading of the “Corrective Action” section of Stryker’s Employee Handbook, A636, Holly contends that his first PBP had become inactive and that Stryker’s reliance on it, including the complain ts documented, was pretextual. We agree with the District Cour t that Holly’s interpre tation is belied by the Handbook’s plain text and by the uncontradic ted testimony of Stryker’s Director of
Human Resources. See A750–57; Holly v. Stryker Corp. , No. 18-702, 20 19 WL 952233, at *7 (E.D. Pa. Feb. 27, 2019); see also Smith , 589 F.3d at 692 (finding no pretext where the plaintiff did not establish that the em ployer had a certain disciplinary policy or deviated from it). A mere allegation such as this cannot defeat summary judgment. In re IKON Office Sols., Inc. , 277 F.3d 658, 666 (3d Cir. 2002) ; Fed. R. Civ. P. 56(c)(1). Because Holly has failed to produce any evidence that would allow a factfinder to disbelieve that Stryker fired him for receivi ng numerous customer complaints and for5 failing to correct this performan ce issue after two notices, we conclude that pretext is not a triable issue and that Stryker is entitle d to judgment as a matter of law.
II. Conclusion For the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of Stryker.