                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-1041
                                      _____________

                                   NANCY L. SMITH,
                                              Appellant

                                             v.

                                   N3 OCEANIC, INC.
                                    ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 2-16-cv-00730)
                      District Judge: Honorable Berle M. Schiller
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 27, 2017
                                  ______________

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

                           (Opinion Filed: November 22, 2017)
                                    ______________

                                        OPINION*
                                     ______________

RESTREPO, 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.
       Nancy Smith appeals the District Court’s grant of summary judgment to N3

Oceanic, Inc., her former employer, in her suit for age discrimination and retaliation

under the Age Discrimination in Employment Act (“ADEA”). We will affirm.

                                             I

       As we write solely for the benefit of the parties, we set out only the facts necessary

for the discussion that follows.1 From February 2004 until September 2014, Smith was

employed by N3 Oceanic, Inc. as a Customer Service Representative (“CSR”). App. 192.

During her 10-year-long tenure with the company, N3’s management regarded Smith as a

good employee with some recurring issues related to her demeanor. App. 334. Emails

among N3’s management document incidents when Smith reacted unprofessionally to

instructions or events, describing her as “argumentative,” “disagreeable,” and “angry.”

App. 382, 384. At the time of her firing, Smith was 70 years old, the oldest CSR

employed by N3. App. 334.

       Several months before her termination, N3 changed its employee health benefits to

an age-based policy, such that healthcare premiums paid by employees would correlate

with the employee’s age.2 App. 337. In August 2014, because of the increase in costs,

Smith waived her health benefits, writing “cannot afford – discrimination!” on the waiver


       1
         For the purpose of this appeal, the facts described are undisputed or viewed in
the light most favorable to Smith.
       2
         N3 changed from a four-tier health insurance policy in which the tiers were
determined by the number of people insured (self, self plus spouse, self plus children,
etc.) and all employees paid the same amount for each tier regardless of age, to an age-
based policy in which the employee’s premiums were determined by the employee’s age
at the time the policy came into effect. App 337.
                                             2
form. App. 370. N3’s management was aware of Smith’s comments on the form. App.

337.

       On September 6, 2014, N3 received an email from a disgruntled customer with the

subject line “My last purchase with [N3]” complaining of misleading and inconsistent

promotional pricing. App. 200. He noted in the email that the CSRs shared his

frustration but had told him that their concerns “f[ell] on deaf ears with management.”

Id. N3 then traced the customer’s last order in its ordering database and found that Smith

had handled the order. App. 310. Although N3 was unable to prove that Smith had

made the disparaging remarks about management to the customer, Smith’s supervisor

believed that they were consistent with comments that Smith had previously made about

pricing and promotions. App. 247-48. Over the course of the next week, N3 hired an

18-year-old woman as a CSR and fired Smith. App. 197, 245.

       In her complaint against N3, Smith alleged a violation of the ADEA based on age

discrimination and retaliation for protected conduct. The District Court granted N3

summary judgment on both of Smith’s claims. This timely appeal followed. We will

address each claim in turn.

                                            II3



       3
        The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 29 U.S.C.
§ 621. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a
grant of summary judgment is plenary. NAACP v. City of Phila., 834 F.3d 435, 440 (3d
Cir. 2016). We apply the same summary judgment standard as the District Court. See
Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 218 (3d Cir. 2015). That standard
required the Court to grant summary judgment where, with inferences drawn in favor of
the non-moving party, “the movant shows that there is no genuine dispute as to any
                                            3
       The ADEA makes it unlawful for an employer to “discriminate 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). In assessing a

claim of age discrimination under the ADEA, courts employ the McDonnell Douglas

burden-shifting framework. Walton v. Mental Health Ass’n. of Se. Pa., 168 F.3d 661,

667-68 (3d Cir. 1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). A plaintiff alleging employment discrimination under the ADEA must make a

prima facie case with four elements: (1) she is over 40 years old; (2) she is qualified for

the position; (3) she suffered from an adverse employment decision; and (4) her

replacement was sufficiently younger to permit a reasonable inference of age

discrimination. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004).

Under the burden-shifting framework, once the plaintiff makes out a prima facie case, the

burden shifts to the employer to “articulate some legitimate, nondiscriminatory reason”

for the adverse action. McDonnell Douglas, 411 U.S. at 802. If the employer

demonstrates a legitimate, nondiscriminatory reason, the burden shifts back to the

plaintiff to show that the employer’s stated reason was pretextual. Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015).

       The District Court found that Smith made a prima facie case and that N3

articulated legitimate, nondiscriminatory reasons for the firing by citing the customer

complaint and Smith’s occasional lack of professionalism. Neither of these findings is


material fact and the movant is entitled to judgment as a matter of law.” Id. at 218; see
also Fed. R. Civ. P. 56(a).
                                              4
disputed by the parties. The District Court granted summary judgment to N3 after

conluding that she had failed to show that N3’s reasons were pretextual. Smith

challenges this conclusion on appeal.

       The third and final step of the McDonnell Douglas framework requires the

plaintiff to demonstrate that the presumptively valid reasons for her rejection dissembled

a discriminatory decision. McDonnell, 411 U.S. at 805. Plaintiff must point to some

evidence, direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s actions. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). “[S]ince the

factual dispute at issue is whether discriminatory animus motivated the employer,” not

whether the employer’s decision was wrong or mistaken, the plaintiff must “demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons that a reasonable factfinder could rationally find

them ‘unworthy of credence.’” Id. at 765 (emphasis omitted) (citation omitted).

       Smith fails to offer evidence which would cast doubt on N3’s articulated reasons

or suggest N3’s decision was motivated by “discriminatory animus.” Id. Smith contends

that N3 neither formally disciplined her for unprofessional conduct nor identified specific

examples of such conduct. Neither of these arguments, however, address the incidents

documented in N3’s internal emails over the course of Smith’s employment. Similarly,

while Smith denies making critical remarks about N3’s management to customers, it was

reasonable for N3 to conclude based on Smith’s past comments and the customer’s order

                                             5
history that she made the statement alleged in the email. Because she is unable to show

that N3’s legitimate reasons were pretextual, Smith’s discrimination claim must fail.

                                            III

       Under the McDonnell Douglas framework, a plaintiff asserting a retaliation claim

under the ADEA must establish a prima facie case by showing: (1) she was engaged in

protected activities; (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. Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). Protected activities include not

only an employee’s filing of formal charges of discrimination against an employer but

also “informal protests of discriminatory employment practices, including making

complaints to management.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir.

2015) (quoting Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130,

135 (3d Cir. 2006)). If the plaintiff makes these showings, the burden of production

shifts to the employer to present a legitimate, non-retaliatory reason for having taken the

adverse action. Id. (citation omitted). “If the employer advances such a reason, the

burden shifts back to the plaintiff to demonstrate that ‘the employer’s proffered

explanation was false, and that retaliation was the real reason for the adverse employment

action.’” Id. (citation omitted).




                                             6
       Smith established a prima facie case. First, her comment (“cannot afford-

discrimination!”) on her waiver form qualifies as a protected activity. Given the increase

in health premiums because of her age, a jury could reasonably conclude that Smith

intended her comments to be an “informal protest” expressing to management her belief

that she had suffered discrimination on the basis of her age. Id. Her supervisor testified

that “there were conversations . . . about what [the comment] meant.” App. 337. As to

the second element, Smith’s termination of employment qualifies as an adverse

employment action. Lastly, a jury could reasonably conclude that the timing of the

termination, approximately one month after she submitted the waiver form, in light of

Smith’s unblemished formal disciplinary record, satisfies the third element in establishing

a causal link between the protected activity and the adverse action.

       N3, however, presented a legitimate, non-retaliatory reason for the adverse action

by once more citing the customer complaint and Smith’s history of unprofessional

behavior. As discussed in greater detail above, Smith failed to rebut N3’s claim that it

fired her because she disparaged N3’s management to a customer, which served as the

culmination of a documented history of occasionally unprofessional behavior. Thus,

Smith’s retaliation claim must fail.

                                            IV

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment to N3.




                                             7
