                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                   No. 12-3756
                                  ____________

                                 JANIS STACY,

                                             Appellant

                                        v.

                  LSI CORPORATION; AGERE SYSTEMS, INC.
                              ____________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                             (D.C. No. 5-10-cv-04693)
                  District Judge: Honorable Eduardo C. Robreno
                                   ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 October 29, 2013

            Before: FISHER, JORDAN and SLOVITER, Circuit Judges.

                            (Filed: November 13, 2013)
                                   ____________

                           OPINION OF THE COURT
                                ____________

FISHER, Circuit Judge.
       Janis Stacy appeals from an order of the United States District Court for the

Eastern District of Pennsylvania granting summary judgment in favor of Agere Systems,

Inc. ("Agere Systems") and its parent company, LSI Corporation ("LSI Corp."),

(collectively "Defendants") and denying as moot Stacy's motion for partial summary

judgment. For the reasons that follow, we will affirm.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Defendants employed Stacy as an engineer from 1998 through 2008. When Stacy

was hired, she had a traditional masculine appearance, wore male clothing, and went by

the name "Jim." In 2002, Stacy was diagnosed with a medical condition known as

gender identity disorder ("GID"), which arises from a profound divergence between an

individual's assigned birth sex and the person's inner gender identity. Upon being

diagnosed with GID, Stacy began undergoing treatment, which included, among other

things, psychological counseling and hormonal therapy.

       In 2005, as part of her treatment, Stacy proceeded to full-time participation in

what she refers to as the "real world experience," which involved making a full transition

to one's gender identity. A35. Pursuant to this treatment, Stacy disclosed her gender

identity at work through a series of conversations and group presentations under the


                                              2
supervision of Human Resources.1 By mid-2005, Stacy had fully transitioned her

appearance at work from male to female, at which time she became known as "Janis" and

wore feminine attire. She also had multiple surgeries to change her physical appearance.2

       In 2006, following a return from one of her GID-related surgeries, Stacy was

reassigned to a different group. There, Stacy reported directly to Bob Radaker, who in

turn reported to Mr. Lawrence. Soon after her transfer, Stacy complained to Mr.

Lawrence that she believed she had been rated unfairly on her performance review and

unfairly compensated by Mr. Stasak, in 2005. Mr. Lawrence investigated the allegations,

the results of which revealed that Stacy had received the exact same performance rating

in 2004, prior to her GID disclosure, and that she received a salary increase as a result of

her 2005 performance evaluation that placed her in the top ten percent of the highest paid

engineers in the entire company.

       In 2007, Agere Systems merged with LSI Corp. Agere Systems, the company for

which Stacy worked, had a policy expressly prohibiting gender identity discrimination,



       1
          Stacy testified that Norm Lawrence, the director of another group, made negative
comments toward her during one of her gender identity presentations. She contends that
Mr. Lawrence invited her to make the presentation to his group and stated that:
"[Y]esterday he would have been considered a bigot, and today knowing [Stacy] he is
rethinking things." A58-60.
        2
          Stacy provided testimony that it was at this time that she began to experience
rejection and backlash at work. A38-46, A68-69, A81-83. She alleges that her director,
George Stasak, suddenly became non-interactive towards her, A35-36, that another
supervisor referred to her in the male pronoun, even after her transition, A45-46, and that
other employees made similar negative comments, A68.

                                              3
but LSI Corp. did not.3 Following the merger, Defendants engaged in a series of layoffs,

known as the Force Management Program ("FMP"), in response to the declining

economy. Pursuant to the FMP, Defendants eliminated approximately 3,770 positions

between April 2007 and December 2007. In December 2007 or January 2008, Mr.

Lawrence was instructed by a superior to reduce his workforce by eight employees. In

making his decision, Mr. Lawrence testified that he first determined which job positions

and functions would be impacted by the FMP. A132-33. He then consulted with human

resources personnel, who provided him with the names of the affected groups of

employees so that he could conduct a skills assessment.

       One of the groups selected for the FMP was Stacy's group, which supported a

certain product line in which Defendants decided to no longer invest. Stacy was the lead

engineer in the three-member group. In evaluating the group, Mr. Lawrence testified that

he selected five particular skills critical for the function of his team moving forward:

execution, teamwork, communication, technical versatility, and customer focus. A357.

In this assessment, Mr. Lawrence ranked Stacy the lowest of the three. He presented his

findings to his superiors and discussed his rationale. After the majority of the managers

agreed with his findings, he made the decision to terminate Stacy. Stacy was notified of


       3
         Stacy provided a statement that she approached Mr. Lawrence on several
occasions inquiring as to the potential effect of the merger on Agere Systems' existing
anti-discrimination policy. She alleges that Mr. Lawrence made no attempt to calm her
fears and failed to provide her with a direct response as to whether or how the policy
would be changing. A35.

                                              4
her termination on January 16, 2008. She testified that, during a conversation regarding

her termination, Mr. Lawrence informed her that she "was being freed from [her]

negative history with [Mr. Stasak] and the corporation."4 A520.

       On September 14, 2013, Stacy filed a complaint alleging that Defendants

committed unlawful discrimination and retaliation in violation of Title VII of the Civil

Rights Act of 1964 ("Title VII"); sex and disability discrimination and retaliation in

violation of the Pennsylvania Human Relations Act ("PHRA"); and unlawful gender-

identity, sex, and disability discrimination and retaliation in violation of the Allentown

Human Relations Act ("AHRA"). The District Court approved of partial dismissal of

Stacy's claims relating to certain allegations of post-termination discrimination. Stacy

then moved for partial summary judgment on her AHRA claim and Defendants moved

for summary judgment on all of Stacy's claims. Defendants conceded, for purposes of

summary judgment, that Stacy established a prima facie case of discrimination. The

District Court then found that Defendants proffered sufficient evidence that Stacy was

terminated based upon a legitimate non-discriminatory reason (Mr. Lawrence's skills

assessment). After concluding that Stacy failed to show that Defendants' proffered

reason for her termination was a pretext for unlawful discrimination, the Court granted

Defendants' motion for summary judgment and denied Stacy's motion for partial

summary judgment as moot.

       4
         Stacy testified that she was not certain of the exact wording of Mr. Lawrence's
alleged statement and there were no witnesses present when it was made. A520.

                                              5
        Stacy's timely notice of appeal followed.

                                             II

        The District Court had jurisdiction pursuant to 18 U.S.C. § 1331, 28 U.S.C. §

1367(a), and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction pursuant to 28 U.S.C. §

1291.

        We review a district court's grant of summary judgment de novo, applying the

same standard as the district court. Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 413

(3d Cir. 2011). Summary judgment is appropriate only where the moving party has

established "that 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). To meet this burden, "the

moving party must show that the non-moving party has failed to establish one or more

essential elements of his or her case." Scheidemantle v. Slippery Rock Univ. State Sys. of

Higher Educ., 470 F.3d 535, 538 (3d Cir. 2006). The reviewing court should "view the

facts in the light most favorable to the non-moving party and make all reasonable

inferences in that party's favor." Id.

                                             III.

        Defendants do not dispute Stacy's prima facie case of sex, disability, or gender

identity discrimination and Stacy does not dispute the District Court's finding that

Defendants proffered a legitimate, non-discriminatory reason for her termination.

Accordingly, the only issue presented on appeal is whether a reasonable jury could find


                                              6
that Defendants' articulated explanation for Stacy's termination was a pretext for

discrimination.

       Where a plaintiff successfully establishes a prima facie case of employment

discrimination, courts undertake the burden shifting analysis set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this analysis, once a plaintiff

establishes a prima facie case, the burden of production switches to the defendant to

provide a legitimate non-discriminatory reason for its employment decision. See Sempier

v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995). If the defendant provides such

justification, the burden of persuasion is on the plaintiff to show, by a preponderance of

the evidence, that the employer's proffered justification is pretextual. Fuentes v. Perskie,

32 F.3d 759, 763 (3d Cir. 1994). To meet this burden, the plaintiff must either: (1)

discredit the proffered reason through circumstantial or direct evidence; or (2) adduce

evidence "that discrimination was more likely than not a motivating or determinative

cause of the adverse employment action." Id. at 764.

       To support her position that Defendants' proffered justification for her termination

was pretext, Stacy first points to the facts as presented. Second, she argues that she

submitted evidence from which a reasonable jury could find that discrimination

motivated her termination. Third, she argues that reversal of the District Court's grant of

summary judgment requires reversal of its denial of her motion for partial summary

judgment. We address each of these contentions in turn.


                                             7
                                             A.

       Stacy first argues that a reasonable jury could find that Defendants' proffered

reason for her termination was a pretext for unlawful discrimination. In support of her

argument, she alleges that: (1) she was replaced by another employee from outside of her

work group; (2) she was selected for termination prior to Mr. Lawrence's skills

assessment; (3) the skills assessment suffered from serious weaknesses; (4) Mr. Lawrence

chose her group for the purpose of targeting her; and (5) Mr. Lawrence's explanation for

her termination has changed over time.

       We are unpersuaded by Stacy's allegations. First, Stacy attacks Defendants'

decision to replace her with another employee, which she believes discredits their

reduction-in-force argument. However, Stacy does not argue that Defendants hired

another individual to replace her; rather, she argues only that another current employee

assumed her responsibilities. We find that action to be consistent with Defendants'

reduction-in-force argument.

       Stacy also attacks the skills assessment conducted by Mr. Lawrence. She argues

that she was selected for termination prior to the skills assessment, that the assessment

was biased, and that her group was chosen only for the purpose of terminating her. We

find these arguments lacking in record support. The record demonstrates that Mr.

Lawrence was directed by a superior to reduce his workforce. Based upon this

instruction, he selected several groups of employees that would be impacted. Mr.


                                             8
Lawrence then chose the skills to be evaluated based upon those he believed would be

most beneficial to Defendants moving forward. Out of the members in her group, Stacy

was ranked the lowest. Because Stacy failed to put forth any evidence to contradict these

facts, her allegations must fail.

       Finally, Stacy challenges Mr. Lawrence's alleged inconsistent explanations for her

termination. She points to four allegedly different explanations provided by Mr.

Lawrence, including: (1) to give her a "fresh start;" (2) because of her low ranking in his

performance evaluation; (3) because another employee who "rated higher" than her in the

skills assessment assumed her responsibilities; and (4) based upon the skills assessment.

According to Stacy, these arguments contradict one another and would make Mr.

Lawrence less believable to a jury. We disagree. The explanations to which Stacy points

are consistent with one another and with Defendants' proffered reason for her

termination. Because the allegations upon which Stacy's argument hinges lack record

support and fail to demonstrate the weaknesses or inconsistencies necessary to place

doubt upon Defendants' proffered legitimate justification for her termination, Stacy's first

argument fails.

                                             B.

       Stacy next argues that she submitted evidence from which a reasonable jury could

find that discrimination motivated her termination. Stacy points to: (1) the fact that her

termination coincided with a change in corporate policy removing the prohibition on


                                             9
gender identity discrimination; (2) the alleged negative comments made by Mr.

Lawrence; (3) the backlash she experienced under Mr. Stasak and other employees; and

(4) the alleged discriminatory reason Mr. Lawrence provided her for her termination.

       We find these arguments lacking in record support. As previously mentioned,

Defendants have set forth a legitimate explanation for Stacy's termination, which she

does not dispute. Therefore, in order to prevail, she must either discredit Defendants'

reason or prove that discrimination was more likely than not a motivating factor in her

termination. Fuentes, 32 F.3d at 764. Here, the record reveals that Defendants were

engaging in a series of layoffs due to the declining economy and, as a result, had already

laid off more than three thousand employees prior to Stacy's termination. The record also

indicates that Stacy supported a product line in which Defendants decided to no longer

invest and it was only at that point that Stacy's group was selected for the FMP. Stacy's

argument in support of her pretext claim appears to consist of nothing more than baseless

allegations. We find no discriminatory connection between the merger, the alleged

changes in policy, and her termination. We also find no evidence in the record, beyond

her own testimony, to support any of the assertions she makes regarding discriminatory

comments and backlash. Accordingly, we find Stacy's argument insufficient to rebut

Defendants' justification for her termination.

       Because Stacy is unable to point to any inconsistencies or contradictions in

Defendants' proffered reason and has failed to adduce any other evidence that would


                                             10
permit a reasonable factfinder to find that this explanation was a pretext, she has failed to

meet her burden under the McDonnell Douglas framework. Thus, the District Court's

grant of summary judgment in favor of Defendants was proper.

                                             C.

       Finally, Stacy argues that reversal of the District Court's grant of summary

judgment in favor of Defendants requires reversal of the District Court's denial of her

motion for partial summary judgment. Because we conclude above that the District

Court's grant of summary judgment was proper, Stacy's final argument fails.

                                             V.

       For the reasons stated above, we will affirm the order of the District Court.




                                             11
