PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-1526

_____________

CATHERINE WILLIS,

Appellant

v.

UPMC CHILDREN’S HOSPITAL OF PITTSBURGH

_______________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. Civil No. 2-13-cv-00131)

District Judge: Honorable Joy Flowers Conti

_______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 7, 2015

Before: FUENTES, SHWARTZ and VAN ANTWERPEN, 

Circuit Judges.

(Filed: December 22, 2015)
2

Neal A. Sanders, Esq. 

Law Offices of Neal Alan Sanders

1924 North Main Street Extension

Route 8 North

Butler, PA 16001

Counsel for Appellant

John J. Myers, Esq. 

William S. Myers, Esq. 

Eckert Seamans Cherin & Mellott, LLC

600 Grant Street

44th Floor, US Steel Tower

Pittsburgh, PA 15219

Counsel for Appellee

______________

OPINION

______________

VAN ANTWERPEN, Circuit Judge.

Appellant Catherine Willis appeals the final decision 

of the U.S. District Court for the Western District of 

Pennsylvania granting University of Pittsburgh Medical 

Center Children’s Hospital of Pittsburgh’s (“Children’s”)

Motion for Summary Judgment on her Age Discrimination in 

Employment Act of 1967 (“ADEA”) and Pennsylvania 

Human Relations Act (“PHRA”) claims. For the following 

reasons, we will affirm the decision of the District Court.

I. Factual Background and Procedural History

A. Factual Background
3

Viewing the record in a light most favorable to the 

nonmovant, Willis, the facts in this case are as follows. Willis 

worked as a Neonatal Nurse Practitioner (“NNP”) at 

Children’s from August 16, 1993 until her termination on 

January 13, 2012. (A-375). From 2001 until 2011, Willis 

served as co-lead NNP. (A-84, A-87). At all times relevant to 

the instant action, Margaret Lamouree, the nurse manager for 

the newborn intensive care unit (“NICU”) was Willis’s 

supervisor. (A-85–A-86). Lamouree’s supervisors were 

Cynthia Valenta and Diane Hupp. (A-85–A-86). From August 

2011 through January 2012, Children’s issued disciplinary 

warnings to Willis for her conduct in three distinct incidents, 

the relevant details of which are included below.

The first disciplinary incident took place one morning 

in mid-August 2011. While on duty, Willis received a call 

that she was needed in the room of a patient who had recently 

undergone surgery necessitating an endotracheal tube. (A105–A-106). In the hallway on her way to assist the patient, 

Willis passed a nurse who remarked to Willis that the 

patient’s tube must be out. (A-106). In response, Willis stated, 

“[t]hat fuckin [sic] tube better not be out, I’ll fuckin [sic] kill 

someone.” (A-346). The patient’s father was in the room at 

the time, but did not hear Willis’s statement. (A-278–A-279).

Willis received a final written warning regarding this incident 

in early September, which stated that she would be removed 

from her role as a co-lead NNP.1(A-344).

 

1 The co-lead NNP role vacated by Willis was not 

permanently filled until September 2012, approximately one 

year after Willis’s demotion, when Becky Graves was named 

to this position. At the time of her promotion, Graves was 

thirty-four years old. (A-289–A-290). 
4

Later that month, after she received the written notice 

of the warning and demotion, Willis attended a meeting at 

which Lamouree and Valenta were present. (A-86–A-87). At 

the meeting, clinical leadership explained that the co-lead 

NNP role was changing to include a greater focus on 

administrative and budgetary duties, rather than patient care. 

(A-87–A-88). Willis was interested and thought she was 

qualified for the role, but felt that Lamouree and Valenta

coerced her to step down. (A-88).

The second disciplinary incident took place in early 

January 2012. One evening while Willis was on duty, another 

nurse indicated she was looking for someone to start an 

intravenous line on a patient. Frustrated with the nurse, whom 

Willis believed to be inexperienced, and concerned that there 

was not enough time to look for someone else, Willis started 

the line herself. (A-112). Afterwards, Willis approached the 

NICU clinical leadership to express her concerns about the 

inexperience of some of the nursing staff. (A-113–A-114). 

Willis raised her voice loud enough for the NICU supervisor 

Missy Locke, who was nearby, to hear her. (A-114–A-115). 

A week later, Lamouree sent Jenelle Taylor in Human 

Resources an email summarizing her conversation with Willis 

about the incident. (A-347–A-348). Lamouree’s email stated

that Willis became defensive when Lamouree told her the 

clinical leaders were offended by how Willis handled the 

situation. (A-347–A-348). When Lamouree asked Willis if 

she thought that she could have communicated her concerns 

without yelling, Willis said, “[n]ever mind I’m always 

wrong” and walked out of the room. (A-347–A-348). Willis

denies yelling, but otherwise agrees with Lamouree’s 

characterization of the incident. (A-122–A-125).
5

The third disciplinary incident occurred one night the 

following week when Willis was near the end of her shift. On 

any shift, all the NICU nurses are split into two teams, blue 

and green. (A-384). Willis, who was assigned to the green 

team that night, received a patient who was assigned to the 

blue team, but did not perform a history and physical or 

complete admission orders, as required. (A-127–A-129). 

There is some confusion about who was supposed to take care 

of these tasks. Willis contends that another nurse, Holly 

Bernardi, who was assigned to the blue team that night, was 

responsible. (A-129). 

Concerned that this patient’s care fell through the 

cracks, Hupp called both Willis and Bernardi at home after 

their shifts to discuss the incident. Hupp documented the call 

with Willis in an internal memo. (A-350). Willis told Hupp 

that she thought she had placed the admission orders, but, as 

Bernardi was aware, this was the extent of the responsibility 

Willis assumed. (A-350). The next day, Willis emailed Hupp 

about their conversation the previous night regarding the 

incident, and stated that she put the admission orders in and 

relayed this information to Bernardi. (A-351). Hupp

forwarded the email to Taylor in Human Resources. (A-351). 

At her deposition, Willis again stated that the patient was 

Bernardi’s and not her responsibility at all, but that she 

completed the admission orders, which Bernardi knew. (A127–A-128). Hupp’s internal memo, the contents of which 

Willis does not dispute, indicates that Willis left without 

completing the patient’s admission orders. (A-129, A-350).

Willis also told Hupp that it was common practice for nurses 

to complete admission orders received at the end of their 

shift, but then pass along the physical and history to those in 
6

the oncoming shift. (A-128–29, A-350). When Lamouree 

asked Willis if this is what she did that night, Willis said that 

it had been “very busy” and she was unable to recall to whom 

she had reported about the patient. (A-350).

Two days after this incident, on January 13, 2012, 

Hupp, Valenta, and Lamouree met with Willis to terminate 

her employment. (A-156, A-342–A-343). Willis was sixtyone years old at the time of her termination, making her a 

member of a protected class under the ADEA and the PHRA. 

(A-76).

B. Procedural History 

Willis filed a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”) in April 

2012. (A-352–A-355). The EEOC closed Willis’s case and 

issued a right to sue letter in November 2012. (A-38). Willis 

brought suit against Children’s in the Western District of 

Pennsylvania on January 28, 2013. After Children’s filed an 

Answer to the Complaint, Willis filed an Amended 

Complaint, to which Children’s filed an Answer.2(A-24–A-

 

2 Willis’s Amended Complaint includes “Hostile Work 

Environment” in the subheadings for Count 1 (ADEA) and 

Count 2 (PHRA), but does not provide any supporting factual 

allegations for a hostile work environment claim. (A-48–A55). Willis’s brief in opposition to Children’s Motion for 

Summary Judgment is similarly silent on a hostile work 

environment claim. (A-206–A-207). As a result, the District 

Court concluded this was a drafting error, and accordingly 

deemed the claim abandoned. (A-2 n.1). Willis does not raise 

a hostile work environment claim on appeal, rendering further 
7

26). The District Court, (Flowers Conti, J., C.J.), granted 

Children’s Motion for Summary Judgment on both claims.

(A-22). This timely appeal followed. (A-1).

II. Discussion3

A. Standard of Review

We exercise plenary review over a district court order 

granting summary judgment. Simpson v. Kay Jewelers, Div. 

of Sterling, Inc., 142 F.3d 639, 643 (3d Cir. 1998).

Accordingly, we engage in the same analysis as the district 

court initially applied. Anderson v. Consol. Rail Corp., 297 

F.3d 242, 246 (3d Cir. 2002). We will affirm the grant of 

summary judgment if the moving party has shown that the 

evidentiary material on the record, if reduced to admissible 

evidence, is insufficient to permit the nonmoving party to 

carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 

317, 322–23 (1986).

On a review of an order granting summary judgment, 

this Court is required to construe all facts and inferences in 

favor of the nonmoving party. Simpson, 142 F.3d at 643 n.3

(quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 

1994)). Summary judgment is appropriate when “the movant 

 

consideration unnecessary.

3 The District Court had jurisdiction to hear Willis’s 

federal claim pursuant to 28 U.S.C § 1331. It had jurisdiction 

over Willis’s state law claims pursuant to 28 U.S.C. 

§ 1367(a). We have jurisdiction to review final orders of a 

district court pursuant to 28 U.S.C. § 1291.
8

shows 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.” Fed. R. Civ. P. 56(a). A genuine issue of material 

fact is one that “affect[s] the outcome of the suit under the 

governing law” and could lead a reasonable jury to return a 

verdict in favor of the nonmoving party. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has 

the burden of demonstrating that the evidentiary record 

presents no genuine issue of material fact. Simpson, 142 F.3d 

at 643 n.3 (quoting Fuentes, 32 F.3d at 762 n.1). Once the 

moving party has done so, to avoid the entry of summary 

judgment against them, the nonmoving party must identify 

facts in the record that would enable them to make a 

sufficient showing on essential elements of their case for 

which they have the burden of proof. Celotex Corp., 477 U.S. 

at 323. If, after adequate time for discovery, the nonmoving 

party has not met its burden, pursuant to Federal Rule of Civil 

Procedure 56, the court must enter summary judgment against 

the nonmoving party. Id. at 322–23. 

B. Analysis

Willis claims Children’s discriminated against her on 

the basis of age, in violation of the ADEA and the PHRA. 

Since this Court has determined that the interpretation of the 

PHRA is identical to that of federal anti-discrimination laws,

including the ADEA, we present a single analysis for Willis’s 

claims under both statutes.4 Fasold v. Justice, 409 F.3d 178, 

 

4 There is an exception “where there is something 

specifically different in its language requiring that [an antidiscrimination statute] be treated differently.” Fasold v. 

Justice, 409 F.3d 178, 184 n.8 (3d Cir. 2005) (quoting 
9

184 n.8 (3d Cir. 2005) (quoting Fogelman v. Mercy Hosp., 

Inc., 283 F.3d 561, 567 (3d Cir. 2002)); Connors v. Chrysler 

Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998) (“There is no 

need to differentiate between . . . ADEA and PHRA claims 

because . . . the same analysis is used for both.”).

 

1. Standard for Age Discrimination Claims 

The ADEA prohibits employers from “discharg[ing] 

any individual or otherwise discriminat[ing] against any 

individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such 

individual’s age.” 29 U.S.C. § 623(a)(1). To succeed on an 

ADEA claim, a plaintiff must establish, by a preponderance 

of the evidence, that age was the “but-for” cause of the 

adverse employment action. Gross v. FBL Fin. Servs., Inc., 

557 U.S. 167, 177–78 (2009). Age discrimination claims in 

which the plaintiff relies on circumstantial evidence proceed 

according to the three-part burden-shifting framework set 

forth in McDonnell Douglas Corp. v. Green. 411 U.S. 792 

(1973); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108

(3d Cir. 1997) (reaffirming the application of a “slightly 

modified version of [McDonnell Douglas] in ADEA cases”).

Under this framework, the plaintiff must first establish 

a prima facie case of discrimination. Keller, 130 F.3d at 1108 

(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 

(1993)). Satisfying the prima facie elements creates an 

 

Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir. 

2002)). The relevant provisions of the ADEA and the PHRA 

do not provide any indication that this exception applies here. 

29 U.S.C. § 623(a)(1); 43 Pa. Cons. Stat. § 955(a).
10

“inference of unlawful discrimination.” Pivirotto v. 

Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir. 1999)

(quoting Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir. 

1995)). The elements of a prima facie case of age 

discrimination are that: (1) the plaintiff is at least forty years 

old; (2) the plaintiff suffered an adverse employment 

decision; (3) the plaintiff was qualified for the position in 

question; and (4) the plaintiff was ultimately replaced by 

another employee who was sufficiently younger so as to 

support an inference of a discriminatory motive. Burton v. 

Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013). This Court 

has indicated the prima facie case is not “intended to be rigid, 

mechanized, or ritualistic.” Pivirotto, 191 F.3d at 352

(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 

(1978)). Where the plaintiff is not directly replaced, the fourth 

element is satisfied if the plaintiff can provide facts which “if 

otherwise unexplained, are more likely than not based on the 

consideration of impermissible factors.” Id.

Once the plaintiff has successfully established a prima 

facie case creating an inference of discrimination, the burden 

shifts to the employer who must “articulate a legitimate 

nondiscriminatory reason for the adverse employment 

action.” Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d 

Cir. 1999) (citing Keller, 130 F.3d at 1108). This second step 

of McDonnell Douglas does not require that the employer 

prove that the articulated legitimate, nondiscriminatory reason 

was the actual reason for the adverse employment action. 

Instead, the employer must provide evidence that will allow 

the factfinder to determine that the decision was made for 

nondiscriminatory reasons. Fuentes, 32 F.3d at 763.
11

If the employer satisfies this second step, the burden 

shifts back once more to the plaintiff to show, by a 

preponderance of the evidence, that the employer’s proffered 

legitimate, nondiscriminatory reason was pretextual. Burton, 

707 F.3d at 426–27. In Fuentes v. Perskie, this Court 

recognized two ways in which a plaintiff can demonstrate that 

the employer’s legitimate, nondiscriminatory reason was 

pretextual. 32 F.3d at 762. The first way to show pretext is for

the plaintiff to point to evidence that would allow a factfinder 

to disbelieve the employer’s reason for the adverse 

employment action. Id. at 765. In order to raise sufficient 

disbelief, the evidence must indicate “such weaknesses, 

implausibilities, inconsistencies, incoherencies, or 

contradictions in the employer’s proffered legitimate reasons”

to satisfy the factfinder that the employer’s actions could not 

have been for nondiscriminatory reasons. Id. Alternatively, 

the second way a plaintiff can establish pretext is to point to 

evidence that would allow a factfinder to believe that an 

invidious discriminatory reason was “more likely than not a 

motivating or determinative cause” of the employer’s action. 

Id. at 764. Specifically, the plaintiff can show pretext this way 

by presenting evidence “with sufficient probative force” so as 

to allow the factfinder to “conclude by a preponderance of the 

evidence that age was a motivating or determinative factor.” 

Simpson, 142 F.3d at 644–45 (citing Keller, 130 F.3d at 

1111). Pointing to evidence demonstrating any of the 

following satisfies this second way to prove pretext: (1) the 

defendant previously discriminated against the plaintiff; (2) 

the defendant discriminated against others within the 

plaintiff’s protected class; or (3) the defendant has treated 

similarly situated, substantially younger individuals more 

favorably. Simpson, 142 F.3d at 645 (citing Fuentes, 32 F.3d 

at 765). If this step is satisfied, at trial the plaintiff must 
12

convince the factfinder that not only was the employer’s 

proffered reason false, but the real reason was impermissible 

discrimination. Fuentes, 32 F.3d at 763 (quoting St. Mary’s 

Honor Ctr., 509 U.S. at 515).

a. Prima Facie Case

Since the parties agree that Willis has satisfied the first 

three elements of a prima facie case, the only element at issue 

is the fourth: whether Willis has presented evidence that 

raises an inference of age discrimination. (A-10). Willis 

claims that she has satisfied this element by demonstrating 

that Children’s treated similarly situated, but substantially 

younger, individuals more favorably. (Appellant Br. 10). The 

District Court rejected this argument, finding the evidence 

Willis provided “would not permit an inference of intentional 

discrimination.” 5(A-13). Accordingly, the District Court 

 

5

In the proceedings below, Willis asserted that there 

were three ways she satisfied the fourth element of her prima 

facie case. First, Willis claimed that she satisfied this element 

because Graves, a substantially younger employee, replaced 

her as co-lead NNP. The District Court rejected this argument 

since at the time of her termination, Willis was no longer colead NNP. (A-11). Second, Willis contended that Children’s 

hiring three NNPs, all of whom were substantially younger 

than her, satisfied this element. The District Court concluded 

that there was insufficient evidence in the record to support 

this contention since Willis had not provided information 

about these employee’s ages, or more importantly, that they 

assumed Willis’s duties. (A-11). Third, Willis advanced the 

sole argument she raises on appeal, that she satisfied the 
13

found that Willis had not “adduced sufficient evidence to 

establish a prima facie case.”6(A-13).

On appeal, Willis renews her claim that the evidence 

she provided raises an inference of discrimination that 

Children’s treated similarly situated, substantially younger 

employees more favorably. (Appellant Br. 10). To 

demonstrate more favorable treatment of similarly situated, 

substantially younger employees, Willis references the three 

disciplinary incidents, and cites the lack of discipline for 

substantially younger employees engaging in the same or 

similar conduct. (Appellant Br. 10–12). However, with 

respect to the first incident in August 2011, Willis states 

“[t]here is no . . . indication on the record that any 

substantially younger employee was ever reported for using 

profanity, much less disciplined for it.” (Appellant Br. 11). 

With respect to the second incident, which took place in early 

January 2012, Willis also admits that “[t]here is nothing on 

the record to indicate that there are any similarly situated 

employees of any age who were accused, falsely or not, of 

raising their voices or yelling at Clinical Leaders.” (Appellant 

Br. 11). Willis’s reference here to the lack of discipline goes 

against her argument of more favorable treatment of younger 

employees, since she admits there is no evidence that anyone, 

 

fourth element because Children’s treated similarly situated, 

substantially younger employees more favorably. (A-12).

6 Because Willis’s Amended Complaint did not cite 

the demotion from co-lead NNP as an adverse employment 

event, the District Court did not treat it as such and instead 

found that Willis’s termination was an adverse employment 

action, in satisfaction of the third element of a prima facie

case, with which Children’s agreed. (A-10 n.3). 
14

including employees her own age, committed these same 

infractions and escaped discipline. (Appellant Br. 11). In 

conceding this, Willis admits that there is no evidence to 

support her point, but attempts to use this omission in her 

favor.

The argument that the absence of disciplinary incidents 

involving younger staff members is evidence of more 

favorable treatment, defies this Court’s precedent and logic. 

This Court has emphasized that evidence of more favorable 

treatment cannot be viewed in a vacuum, but rather that the 

record must be viewed as a whole. Simpson, 142 F.3d at 645–

46. Viewing the record in its entirety, which includes Willis’s 

documented issues with communication and interpersonal 

skills, this argument works against Willis. (A-179–A-181, A337). Instead of showing disparate treatment of Willis as an 

employee in a protected class, the record, particularly the 

three disciplinary incidents, supports the concerns of Willis’s 

supervisors that she had difficulty working appropriately with 

others. The record does not reveal any evidence of similarly 

situated, substantially younger employees experiencing 

similar difficulties and not receiving discipline. (Appellant 

Br. 11).

Assessing the other portions of the record Willis cites

in support of her case, she has not pointed to any other

evidence that gives rise to the inference that she was 

terminated due to age discrimination. Willis’s argument that 

Children’s discriminated against her on the basis of age is 

rooted in her own belief that this was the reason for her 

termination, but she is unable to point to any supporting 

evidence. Willis concedes that she cannot identify anything 

Lamouree, Hupp, or Valenta ever said that would suggest an 
15

age bias in general, or specifically with respect to Willis. (A138–A-139). In fact, when questioned at her deposition about 

the role her age played in her employment at Children’s, the 

only conversation Willis recalled ever having with her 

supervisors was a statement she made once that she planned 

to work until age sixty-five. (A-136–A-138). A passing 

reference to retirement age and Willis’s own belief that age

discrimination occurred do not comprise sufficient evidence 

that similarly situated, substantially younger employees were 

more favorably treated, and therefore do not satisfy the fourth 

element of a prima facie case. See Pivirotto, 191 F.3d at 352.

b. Pretext

The District Court found that even assuming, 

arguendo, that Willis established a prima facie case of age 

discrimination, her claims still ultimately failed because she 

did not demonstrate pretext. (A-13). At the second step of 

McDonnell Douglas, Children’s cited the three disciplinary

incidents as legitimate, nondiscriminatory reasons for 

terminating Willis’s employment. (A-13). The District Court 

found that these reasons satisfied Children’s burden, stating 

“the nature and documentation of these disciplinary incidents, 

and their acknowledgement by Willis . . . [are] sufficient for a 

reasonable jury to find that Children’s dismissed Willis for 

reasons other than her age.” (A-13). Willis responds that these 

reasons are riddled with inconsistencies such that a 

reasonable factfinder could find said reasons were pretext for 

discrimination. (Appellant Br. 15). As for the first way a 

plaintiff can prove pretext, the District Court found that 

Willis failed to present evidence from which a rational 

factfinder could determine that Children’s legitimate,

nondiscriminatory reasons with respect to all three incidents 
16

“were unworthy of credence.” (A-15) (quoting Fuentes, 32 

F.3d at 765) (discussing the mid-August 2011 incident); (A17) (discussing the early January 2012 incident); (A-18)

(discussing the mid-January 2012 incident). Looking at the 

second way a plaintiff can prove pretext, the District Court 

found that Willis did not provide evidence for any of the three 

possible ways a plaintiff can demonstrate that an 

impermissible discrimination was more likely than not the 

determinative cause of the challenged action. (A-18–A-21).

Assessing the record in the light most favorable to 

Willis, we conclude that she has not shown by a 

preponderance of the evidence that the legitimate,

nondiscriminatory reasons Children’s offered were pretext for 

discrimination. See Fuentes, 32 F.3d at 763. As the District 

Court correctly noted, at the pretext stage it is not a court’s 

role to “rul[e] on the strength of cause for discharge. The 

question is not whether the employer made the best, or even a 

sound, business decision; it is whether the real reason is 

[discrimination].” (A-15) (alterations in original) (quoting 

Keller, 130 F.3d at 1109) (internal quotation marks omitted).

Willis’s attempt to cast Children’s articulated reasons as 

pretext are unsuccessful because she does not point to 

evidence that demonstrates Children’s did not in fact rely on 

its articulated reasons when terminating her employment. See 

Fuentes, 32 F.3d at 765–67.

i. First Method of Proving

Pretext

Assessing the three disciplinary incidents for evidence 

sufficient for a factfinder to disbelieve the employer’s 

articulated reasons, this Court concludes that Willis is unable 
17

to show that her supervisors did not actually rely on her 

conduct to discipline her and ultimately terminate her 

employment. For the August 2011 incident, Willis does not 

dispute that she violated hospital policy by using profanity in 

close proximity to families and patients. (A-346); (Appellant 

Br. 5). Instead, she attempts to mitigate her own actions by 

suggesting that others have committed the same infraction, 

citing the “fairly commonplace” use of profanity at 

Children’s. (A-118). Willis also asserts that because the 

patient’s father did not hear the profanity, Lamouree’s 

discipline was improper. (Appellant Br. 14). Willis’s focus on 

whether the patient’s family heard her outburst is misplaced 

in the context of this Court’s pretext analysis. It does not

matter whether the family heard, or even if she was directly in

front of the patient’s family. Rather, it matters whether 

Willis’s use of profanity was the reason Lamouree disciplined

Willis. Since Willis admits to the disciplined conduct, and in 

light of Children’s goal of maintaining the NICU as an 

environment in which patients and their families feel safe,7

 

7 Willis emphasizes that the patient’s family did not 

hear her use profanity, however the warning she received did 

not cite the family hearing her as the basis for the discipline. 

Rather, the warning stated, in relevant part: “On 8/19/11, 

several staff members witnessed, and upon questioning, you 

admit to using inappropriate language including the use of the 

word “fuck” while in close proximity to patients and 

families.” (A-185). Based on the language of the warning, it 

appears that Children’s disciplined Willis because of the very 

act of using such language in close proximity to patients and 

families. (Appellee Br. 21–22). Since this uncontroverted act 

is a sufficient basis for discipline, Willis’s arguments about 

Lamouree’s failure to ascertain if the family heard is 
18

Willis has not shown that Lamouree’s reason for discipline is 

so weak as to render it “unworthy of credence.” See Fuentes, 

32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 531 (3d Cir. 1992)) (internal quotation 

marks omitted); (A-180).

Willis also does not present evidence that renders

implausible Children’s decision to terminate Willis because 

of the other two disciplinary incidents. As the District Court 

noted, the relevant question with respect to Willis’s early 

January confrontation with the NICU leadership is not 

whether Willis actually yelled, which she denies doing, but 

whether Lamouree believed Willis treated staff members 

inappropriately and imposed discipline for that reason. (A15). In light of Willis’s employment record, she has not 

shown that “[t]he notion that talking loudly could be the basis 

for discipline is so ludicrous that it cannot possibly be a 

rational employer’s true reason for acting.” (A-16) (quoting 

Appellant Br. 14) (internal quotation marks omitted). It is 

rational, as the District Court aptly noted, that Lamouree 

“perceived [this incident] to be another instance of harsh or 

offensive interpersonal communication by Willis.” (A-16). 

Six months prior to the incident, in Willis’s performance 

review, Lamouree told her that she needed to “improve her 

communication style, which can be harsh and critical.” (A337). Lamouree stated that before this incident she had 

received numerous complaints from both nurses and 

physicians about Willis’s “condescending and harsh style.” 

(A-180). Among the reasons Lamouree cited for asking Willis 

to step down from co-lead NNP were her treatment of staff

and subordinate nurses. (A-180–A-181). Based on the record, 

 

irrelevant. (Appellant Br. 13). 
19

it was not “ludicrous,” as Willis contends, for Lamouree to 

discipline her for this incident.

With respect to the third disciplinary incident 

involving the incomplete admission orders, Children’s 

discipline of Willis but not Bernardi does not demonstrate 

that the discipline was “so plainly wrong that it [could not]

have been the employer’s real reason.” Keller, 130 F.3d at 

1109. Willis argues that Bernardi was just as culpable, if not 

more so, despite the two nurse’s different actions and 

responses to Hupp following the incident. Willis 

communicated to Hupp that she told Bernardi she “had 

handled the admission” of the baby and “taken care of it.” (A350). Bernardi confirms that Willis did tell her this. (A-359). 

Bernardi told Hupp she checked in about the patient before 

the end of her shift and asked Willis if she needed to do 

anything, to which Willis responded “no, he’s fine.” (A-359).

Based on the communication between Bernardi and Willis, it 

appears Bernardi had reason to think Willis had assumed

responsibility, regardless of whether the patient came in on 

the blue or green team. Subsequently, Willis’s failure to 

complete the admission orders, which she incorrectly told 

Hupp she had finished, does not show an inconsistency in 

Children’s discipline. Bernardi, unlike Willis, did not 

explicitly assume responsibility for a patient and leave her 

shift without discharging the attendant tasks. (A-359). The 

evidence to which Willis points fails to create sufficient 

disbelief so that a factfinder could rationally find that 

Children’s did not rely on these reasons in disciplining Willis.

ii. Second Method of Proving 

Pretext 
20

As for the second way this Court has recognized a 

plaintiff can establish pretext, Willis has not presented

evidence that supports any of the three categories that would 

allow a factfinder to believe unlawful discrimination was 

more likely than not a motivating or determinative cause of 

her termination. As noted above, Willis was unable to point to 

any evidence that Children’s previously discriminated against

her on the basis of age. (A-138). The sole conversation 

involving age, which was limited to Willis’s comment about 

when she planned to retire, does not support discrimination

on Children’s part. (A-137–A-138). As the District Court 

noted, it is common business practice, and not impermissible 

discrimination, for an employer to inquire about retirement 

plans in anticipation of staffing needs. (A-19).

 

Unable to identify any statements by neonatal nurse 

leadership indicating an age bias, Willis asserts that 

leadership replacing experienced staff with inexperienced 

nurses constitutes evidence that Children’s has discriminated 

against others within her protected class. (A-138–A-141). 

Willis’s argument fails in light of her admission that the 

experienced staff Children’s replaced were not fired, but left 

voluntarily, without conditions suggesting age discrimination. 

(A-139–A-140). Natural staff turnover and increased hiring 

related to expansion do not support Willis’s argument that 

Children’s discriminated against others in her protected class.

Moreover, the allegedly commonplace nature of 

profanity at Children’s and unconfirmed rumors regarding the 

non-discipline of another nurse for “abruptness” and 

“sarcas[m]” do not constitute evidence that similarly situated, 

substantially younger employees were treated more favorably. 

(A-118–A-120). The only support Willis provides for the 
21

assertion that many employees use profanity and did not 

receive similar treatment is her statement that “[t]here is . . . 

no indication on the record that any substantially younger 

employee was ever reported for using profanity, much less 

disciplined for it.” (Appellant Br. 11). As noted previously, 

this alleged lack of discipline does not provide sufficient 

support for Willis’s assertion of more favorable treatment. 

Willis also cited “scuttlebutt” among the nursing staff that 

another NNP was reported to management for abruptness and 

sarcasm.8(A-119–A-120). Even if this rumor is true, Willis’s 

second-hand account does not provide evidence of more 

favorable treatment towards a similarly situated, substantially 

younger employee. The rumored conduct, involving 

abruptness and sarcasm, is not the same as the use of 

profanity in close proximity to patients and their families. 

 

8 Willis stated in her deposition that she believes the 

subject of this rumor to be Becky Graves, who as discussed 

supra, note 1, is substantially younger than Willis. (A-119). 

The extent of Willis’s knowledge on the matter is that Graves 

was reported to Lamouree by other nurses, but Willis is not 

sure who reported Graves. Willis stated in her deposition that 

she believes Children’s did not discipline Graves for this 

reported incident, but Willis admitted her knowledge of this is 

solely “scuttlebutt” from the NNPs. (A-120).

Willis raised the issue of the non-discipline of Graves 

in the proceedings below, but does not discuss it in her brief

on appeal. Because Willis argues that more favorable 

treatment of similarly situated, substantially younger 

employees provides evidence supporting pretext, we address 

it here, assuming it is not waived, as part of the larger 

analysis regarding this category of evidence. 
22

Willis does not argue that this conduct was similarly in 

violation of hospital policy, or as serious in its impact on the 

hospital environment.

More importantly, Willis is unable to provide specifics 

to establish that this other employee was in fact not 

disciplined, and if so, any reason why she was not disciplined.

In the pretext context, this type of second-hand, general 

rumor regarding a single substantially younger employee is 

insufficient as a matter of law to show pretext. While this 

Court has acknowledged that evidence demonstrating that a

single member of a non-protected group received more 

favorable treatment can be relevant, “[a] decision adversely 

affecting an older employee does not become a 

discriminatory decision merely because one younger 

employee is treated differently.” Simpson, 142 F.3d at 645–

46. Setting aside the lack of corroboration regarding this 

incident, the evidence Willis provides on the other 

employee’s non-discipline is not appropriate at the pretext 

stage “where the factual inquiry into the alleged 

discriminatory motives of the employer has risen to a new 

level of specificity.” Id. at 646 (citing St. Mary’s Honor Ctr., 

509 U.S. at 516). This rumored, unspecified, and

uncorroborated evidence concerning a single employee fails 

to establish pretext. Accordingly, we will affirm the District 

Court’s grant of summary judgment in favor of Children’s on 

both claims.9

 

9 At deposition, Willis admitted that after Children’s

terminated her employment, she did not apply for a single job 

as a NNP, or even in the nursing or health care field, because, 

as she stated at her deposition, she was “very devastated and 

very much turned off and soured by what nursing had done to 
23

III. Conclusion

For the foregoing reasons, we will affirm the final 

judgment of the District Court dated February 10, 2015.

 

[her] and didn’t want to put [her]self in that position.” (A-80). 

Because we hold that Willis did not establish a prima facie

case of age discrimination, and would not be able to succeed 

at the pretext stage if she were to meet her prima facie 

burden, we do not reach Children’s argument that even if 

Willis succeeded under the McDonnell Douglas framework, 

she could not recover front or back pay for failure to mitigate 

damages. (Appellee Br. 24–25).