                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                               Nos. 10-2722 & 10-2723
                                   _____________

                                  ANITA DEVILLE,
                                *Beattie Padovano, LLC

                                                 Appellants

                                           v.

               GIVAUDAN FRAGRANCES CORP; ABC CORP 1-10

                          *(Pursuant to Fed. R. App. P. 12(a))
                                      __________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                                (D.C. No. 2-08-cv-02034)
                       District Judge: Hon. Garrett E. Brown, Jr.
                                      __________

                      Submitted under Third Circuit LAR 34.1(a)
                                 February 15, 2011

          Before: SLOVITER, HARDIMAN and ALDISERT, Circuit Judges.

                                (Filed: March 25, 2011)

                                      __________

                              OPINION OF THE COURT
                                    __________
ALDISERT, Circuit Judge.
      Anita Deville appeals from the order of the United States District Court for the
District of New Jersey, which granted her employer‟s motion for summary judgment in


                                            1
her action alleging violations of the Age Discrimination in Employment Act (“ADEA”),
and the New Jersey Law Against Age Discrimination (“NJLAD”). In a related and
consolidated appeal, Deville‟s attorney, Vanessa R. Elliott, appeals from the District
Court‟s order sanctioning her for misconduct during the discovery phase of this suit. We
will affirm both orders.
                                              I.
       The parties are familiar with the events that gave rise to this appeal. We therefore
set forth the following facts—which we draw from Deville‟s complaint, from the docket
sheet, from the statement of undisputed facts she submitted to the District Court, and
from those portions of Givaudan‟s statement of undisputed facts that Deville admitted to
be true—only as required to explain our reasoning.
       Anita Deville was 57 years old when she filed this age discrimination suit. For
approximately 20 years she was an employee of Givaudan Fragrances Corporation, a
company that produces fragrances for colognes and other consumer products. In 2000,
Deville became an account executive for a Givaudan client who, for confidentiality
reasons, we shall refer to as “Client A.” Although she received some favorable reviews
for her work with Client A, a 2001 employee development plan identified presentation
skills as one of Deville‟s areas of weakness. In 2006, she made a presentation she later
called “horrendous” to the entire Givaudan sales team. That same year, Deville‟s
supervisor was considering whether to promote her from Client A‟s “account executive”
to its “senior account executive.” Givaudan‟s United States Consumer Products President
sent her supervisor an email that read in pertinent part:

       While I agree [Deville] has done a reasonable job, my concern remains that
       she is not the ideal long term fit for the account. . . . or the company. It is
       my belief that we should have the best people in our best business. I am OK
       with your decision and proposal, but just keep in mind that if we promote
       her and then decide that we need a better quality of person, it would be
       almost impossible to let her go. By promoting her we are reinforcing that



                                              2
       she is doing a great job which, when combined with her age and her gender,
       will make it very difficult to make a change.

(App. 5-6.)
       In March of 2007, Givaudan bought a flavors and fragrance company called Quest
International. The acquisition required eliminating some job positions, because Quest had
a person who handled Client A. Faced with a choice between Deville and Quest‟s
employee, who is 6 years younger than Deville and who was Quest‟s Vice President of
International Accounts for Client A, Givaudan selected the Quest employee. In June of
2007, Givaudan notified Deville that her employment with the company would end.
       In the fall of 2007, Givaudan began advertising an open retail sales position in
New York City. The job opening was listed as “master‟s degree preferred,” and
“required” a bachelor‟s degree. Although she did not hold either degree, Deville applied.
During her November 2007 interview, Deville told her interviewer that she had filed an
EEOC charge alleging that Givaudan‟s decision to end her employment was motivated by
age discrimination. (In fact, she had not yet filed an EEOC charge, although she had
completed certain intake paperwork with the EEOC.) Deville did not get the job—
Givaudan selected “M.G.,” who was a current Givaudan employee with a master‟s degree
in marketing and management of cosmetics and fragrance, from the New York Fashion
Institute of Technology.
       One month later, on December 18, 2007, Deville filed a formal EEOC charge
against Givaudan. On April 24, 2008, before the EEOC made findings or issued a right-
to-sue letter, Deville filed this lawsuit. She alleged age discrimination and retaliation in
violation of the ADEA and the NJLAD. After Givaudan‟s answer, the District Court set a
discovery schedule.
       Two discovery events are relevant to this appeal. The first occurred during the
deposition of an expert witness named Michael Soudry. Elliott produced Soudry to testify
about alleged statistical evidence of age discrimination at Givaudan. While deposing this


                                              3
witness, Givaudan‟s attorney, Wendy Lario, discovered that Soudry had relied upon lists
and data that Elliott had not produced or shared with the defense. When Lario asked
Soudry why he had not included this information in his report, Elliott made repeated
interjections that not only prevented Soudry from answering, but provided answers on his
behalf:

      Lario: . . . I do know that the list that we‟ve just marked as Soudry 12 was
      produced to you in response to a request, actually in response to an
      interrogatory that asked for identification of those who were retirees and
      who were not terminated. It is a list that Mr. Soudry has acknowledged that
      he reviewed, so for purposes of my deposition, I‟d like to continue without
      your interruption.

      Elliott: Well, he excluded this list from his report because it had nothing to
      do with . . . involuntary termination.

      Lario: In connection with your terminated list, you also indicated that you
      excluded New York employees, correct?

      Elliott: It‟s possible that this list—

      Lario: Ms. Elliott, please[.]

      Elliott: Let me clarify. I think this list is an incorrect list of what he relied
      upon.

      Lario: Please, can we please just focus on—

      Elliott: We are assuming that this list is correct, and when we are looking at
      the second page of the attachments to Soudry 8—

      Lario: Okay—

      Elliott: —I think that that would explain it, because the point is there were
      over ten employees that he included as 55 and over, and he did several
      analyses, so he produced this, this document from his computer, but it‟s
      some other analysis.

      ....




                                               4
       Elliott: I really think that that‟s what explains it that this list is wrong. It‟s
       the same number of people. If you take out the New York people and leave
       in the so-called retirees, it‟s the same number of people.

       ....

       Lario: Why didn‟t you produce your spreadsheet?

       Soudry: To produce the spreadsheet?

       Lario: Yes.

       Soudry: I could produce it if you would like.

       Lario: Why didn‟t you?

       Soudry: I didn‟t think I should produce it.

       Lario: Why?

       Soudry: Did you ask for a spreadsheet?

       Lario: I asked for all of the information upon which you‟ve relied and
       reviewed, yes, I did[.]

       Soudry: My—

       Elliott: I think it‟s here. He did produce it. That‟s his spreadsheet.

       ....

       Lario: Mr. Soudry, are you sitting here and telling me today that there are
       other spreadsheets that you prepared that support your list of terminated
       employees that you did not produce?

       Elliott: Yes, by mistake. That‟s the whole point of this information that he
       mistakenly produced to you.

       Lario: I‟ve asked your witness a question.

       Elliott: I can finish. I can finish . . .

(App. 15-17.) The Magistrate Judge explained that she was “very troubled by the
completely objectionable conduct of counsel in defending [Soudry‟s] deposition” (App.
32), because in her estimation Elliott‟s interjections went “beyond just suggesting an

                                                   5
answer” and amounted to “testifying for the expert witness . . . throughout the deposition
testimony,” (App. 30).
       The second discovery event relevant to this appeal followed the Magistrate Judge
order that Elliott serve her expert reports “no later than October 1, 2009.” Elliott first
served Soudry‟s expert witness report on September 14, 2009. After Givaudan‟s
November 5, 2009, deposition of Soudry—the substance of which proved very damaging
to key aspects of Deville‟s case—Elliott produced a new report that changed data in
Soudry‟s original “final” report. Elliott filed the new report without notice on November
10, 2009—more than one month after the October 1 deadline. The Magistrate Judge
concluded that (1) the late report violated the discovery schedule and (2) changes in the
amended report were material because they rendered large portions of the expert‟s
deposition worthless. Noting that she was particularly troubled by attorney Elliott‟s
conduct during Soudry‟s deposition, the Magistrate Judge offered Elliott a choice:
withdraw the offending report, or face monetary sanctions. Elliott chose the monetary
sanctions.
       The District Court granted summary judgment to Givaudan on Deville‟s age
discrimination claims and her retaliation claims, under both the ADEA and the NJLAD,
after determining that Deville had failed to carry her burden under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The District Court also affirmed the Magistrate
Judge‟s sanction order, finding it a proper exercise of discretion under the Federal Rules
of Civil Procedure. Deville now appeals the District Court‟s entry of summary judgment,
and Elliott appeals its order affirming the Magistrate Judge‟s sanction award. We
consolidated both appeals into this proceeding.
                                              II.
       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331,
and 29 U.S.C. § 621. We have jurisdiction pursuant to 28 U.S.C. § 1291.



                                              6
         When reviewing a District Court‟s summary judgment order, we consider legal
conclusions de novo, Brisbin v. Superior Value Co., 398 F.3d 279, 285 (3d Cir. 2005),
and we review factual findings for clear error, Prusky v. ReliaStar Life Ins. Co., 532 F.3d
252, 257-258 (3d Cir. 2008).
         “The decision to impose sanctions for discovery violations and any determination
as to what sanctions are appropriate are matters generally entrusted to the discretion of
the district court.” Bowers v. Nat‟l Collegiate Athletics Ass‟n, 475 F.3d 524, 538 (3d Cir.
2007).
                                             III.
         We will affirm the District Court‟s order affirming the Magistrate Judge‟s entry of
summary judgment against Deville. Although Deville alleged violations of the ADEA
and the NJLAD, her burdens of pleading and production are identical under each. See
McKenna v. Pac. Rail Serv., 32 F.3d 820, 827-830 (3d Cir. 1994). We agree that, under
the framework set forth in McDonnell Douglas, 411 U.S. at 792, she did not bear her
burden of showing pretext in the non-discriminatory explanations Givaudan gave for its
decision to terminate and to not rehire Deville.
         We will also affirm the District Court‟s order affirming the Magistrate Judge‟s
sanction in this case, because upon review of the record we find no abuse of the
Magistrate Judge‟s discretion.
                                              A.
         We turn first to Deville‟s age discrimination claims against Givaudan. Deville‟s
age discrimination and retaliation claims under the ADEA and under the NJLAD are
governed by the burden-shifting framework set forth in McDonnell Douglas, 411 U.S. at
792. See Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009) (analyzing cases
and concluding that McDonnell Douglas applies to age discrimination claims); Lehmann
v. Toys „R‟ Us., Inc., 132 N.J. 587, 626 (1993) (applying McDonnell Douglas to NJLAD
claims).

                                              7
       Under McDonnell Douglas, plaintiffs bear the burden of proof and production to
make out a prima facie case, which means they must show that (1) the plaintiff is 40
years of age or older; (2) the defendant took an adverse employment action against the
plaintiff; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff
was ultimately replaced by another employee who was sufficiently younger to support an
inference of discriminatory animus. Smith, 589 F.3d at 690 (citing Potence v. Hazleton
Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004)). “Once the plaintiff satisfies these
elements, the burden of production shifts to the employer to identify a legitimate non-
discriminatory reason for the adverse employment action.” Id. (citing Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)). If the employer does so, the
burden of production returns to the plaintiff, who must demonstrate that the employer‟s
proffered rationale was a pretext for age discrimination. Id. at 691 (citing Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995)). “At all times,
however, the burden of persuasion rests with the plaintiff.” Id.
       Of the many contentions Deville makes in urging us to reverse the District Court‟s
summary judgment order, only two merit discussion: her claim (1) that Givaudan
eliminated her position because it was discriminating against her on the basis of age, and
(2) that Givaudan retaliated against her by refusing to hire her for another position,
because she told the company she had filed an EEOC charge. Although the parties make
strident arguments addressing every juncture of the McDonnell Douglas framework, we
will resolve this appeal at the third stage because we conclude that Givaudan offered
legitimate, non-discriminatory reasons for its actions regarding Deville, and that Deville
has not met her burden to show they were pretext.
       Givaudan met its McDonnell Douglas burden to demonstrate legitimate, non-
discriminatory reasons for eliminating Deville‟s position when it explained that her
presentation skills were “horrendous,” and that a corporate merger rendered her position
redundant with that of another employee, who was better qualified, more experienced in

                                               8
the relevant work area, had excellent presentation skills, and was also over the age of 40.
See Smith, 589 F.3d at 690 (citing 411 U.S. 792). Pursuant to McDonnell Douglas and
Smith, Deville therefore bore the burden of showing these reasons were pretexts for age
discrimination. Id. To carry her burden, Deville produced an email from one of her
supervisors. The email, which discussed a possible promotion for Deville, expressed
concern that she might not be the best fit for Client A or for Givaudan, and warned that
(considering her age) promoting her now might make it difficult to change her position in
the future. (App. 5-6 (“By promoting her we are reinforcing that she is doing a great job
which, when combined with her age and her gender, will make it very difficult to make a
change.”).)
       We agree with the District Court that the frank assessment set forth in the email
was not probative of actual intent to discriminate. It was merely a prediction in which its
author noted correctly that it is difficult to terminate employees in protected classes. The
email would not allow a reasonable jury to conclude that Givaudan‟s decision to hire a
more experienced, better educated, middle-aged employee who had better presentation
skills, was motivated by animus against persons over 40 years of age.
       Givaudan also met its McDonnell Douglas burden to demonstrate legitimate, non-
discriminatory reasons for its decision not to hire Deville for the New York sales
position. In November of 2007, Deville (who holds no college degree) interviewed with
Givaudan for a position advertised as requiring a bachelor‟s degree, and preferring a
master‟s degree. At the interview she stated that she had filed an EEOC charge against
Givaudan. (In fact, she had not done so; she had completed an intake form with the
EEOC, but did not lodge her complaint until approximately one month after the
interview.) Givaudan asserts that it did not hire Deville because she was unqualified—
after interviewing several candidates, it selected a woman with a master‟s degree.
       Because the reasons Givaudan has articulated are legitimate and non-
discriminatory, the burden shifts back to Deville, Smith, 589 F.3d at 690 (citing 411 U.S.

                                              9
792), who must produce evidence that “prove[s] by a preponderance of the evidence that
the articulated reasons are a pretext for discrimination,” Duffy v. Paper Magic Group,
Inc., 265 F.3d 163, 167 n.1 (3d Cir. 2001). To do so, Deville contends that because she
told the interviewer she had filed an EEOC charge, there is a genuine issue of material
fact as to whether the company refused to hire her because she did not possess the
necessary college degree. We disagree. No reasonable jury could conclude, based on
Deville‟s misleading statements about her EEOC filing, that she was indeed qualified for
the position: the job “required” a bachelor‟s degree and it “preferred” a master‟s degree,
neither of which she held. Nothing she said, or could have said, during the interview casts
doubt on those facts, much less shows “by a preponderance of the evidence” that
Givaudan used her lack of qualification as a pretext. Id. The District Court therefore
determined correctly that Deville had not met her burden of production.
       Because we conclude that Deville did not bear her McDonnell Douglas burden of
producing evidence sufficient to support a jury finding that Givaudan gave pretextual
reasons for its decision to eliminate her position and for its decision not to re-hire her, we
will affirm the District Court‟s summary judgment order.
                                              B.
       The second issue before us is attorney Vanessa R. Elliott‟s contention that the
Magistrate Judge abused her discretion in imposing sanctions for discovery-related
misconduct in this case. Our standard of review is highly deferential; a district court
abuses its discretion in imposing sanctions when it bases its ruling (1) “on an erroneous
view of the law” or (2) “on a clearly erroneous assessment of the evidence.” Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
       As a threshold matter, the Magistrate Judge in this case did not make a “clearly
erroneous assessment of the evidence.” Id. The record fully supports the Magistrate
Judge‟s findings that, in addition to filing documents that materially changed a key expert
witness‟s testimony after his deposition and outside the court-approved filing deadline,

                                              10
Elliott behaved in an abusive, unprofessional, and obstructionist manner during the
deposition itself. (See App. 15-17.) We also have no difficulty in agreeing with the
Magistrate Judge that Elliott‟s conduct was “unprofessional and completely
objectionable” (App. 32), and “completely unacceptable, and . . . contrary to the rules of
civil procedure,” (App. 30). We have no doubt that Elliott acted as “a person who
impedes, delays, or frustrates the fair examination of the deponent.” Rule 30(d)(2).
       The remaining question is whether the District Court “based its ruling on an
erroneous view of the law.” Cooter, 496 U.S. at 405. We conclude that it did not. The
Magistrate Judge applied sanctions under Rule 37(b)(2)(C) (“Failure to Comply with a
Court Order”) (see App. 34), which permits:

       Payment of Expenses. Instead of or in addition to the orders above, the
       court must order the disobedient party, the attorney advising that party, or
       both to pay the reasonable expenses, including attorney‟s fees, caused by
       the failure, unless the failure was substantially justified or other
       circumstances make an award of expenses unjust.

Rule 37(b)(2)(C) (emphasis added). Elliott‟s primary argument is that the Magistrate
Judge and the District Court did not properly consider whether her failure to comply with
discovery rules was “substantially justified.” We disagree.
       This Court held in United States v. Grider, 580 F.3d 119 (3d Cir. 2009), that when
the text of a sanction rule provides that parties may be sanctioned if their behavior lacks
“substantial justification,” district courts must make express rulings upon whether the
offending party‟s conduct was “substantially justified.” Id. at 139 (vacating Rule 26(g)
sanctions because the trial court “failed to analyze the „substantial justification‟ standard
expressly articulated in the Rule”); id. at 140 (vacating Rule 37(c)(1) sanctions for the
same reason). We vacated the sanction award in that case because there was “nothing in
[the district court‟s opinion] that discusse[d] the contours of this standard or explain[d]
the ways in which the Appellants‟ legal positions were not substantially justified.” Id. at



                                             11
139. Grider therefore provides that District Courts may not apply sanctions under Rules
26 and 37 without considering whether the sanctioned conduct was “substantially
justified.”
       We conclude that the Magistrate Judge‟s oral opinion applying Rule 37(b)(2)
satisfied Grider‟s requirements. Rule 37(b)(2) states that sanctions are appropriate unless
the sanctionable conduct was “substantially justified.” Elliott asserts she had “substantial
justification” to file the late report for two reasons: (1) the alterations made to the expert
report were non-sanctionable because they were “corrections” and “de minimus [sic],”
and (2) her Federal Rule of Civil Procedure 26(e) duty to supplement or correct her prior
filings obliged her to file the report. Under Grider, she must persuade us that the
Magistrate Judge did not adequately consider these asserted justifications.
       The Magistrate Judge did consider these justifications. She made an express
finding that the correction amounted to an alteration of material facts within the expert‟s
report. (App. 31.) Elliott‟s own conduct confirms this finding: the Magistrate Judge
offered to allow her to avoid monetary sanctions by withdrawing the amended report
(App. 33-34), but Elliott declined—something she would not have chosen to do if the
report‟s amendments were in fact “de minimis” corrections. The Magistrate Judge
therefore made an express ruling upon Elliott‟s first “substantial justification” argument,
as Grider requires.
       The Magistrate Judge also considered Elliott‟s second asserted justification, and
made an express finding that Rule 26(e) did not justify her conduct in this case. (App.
32.) The Magistrate Judge explained that the proper procedure for an attorney who
wishes to violate a scheduling order is to ask the court for leave. (Id. (“What I would
expect a lawyer familiar with procedure in this court do to is send a letter to me
explaining the situation and asking permission to service a report—a supplemental report
out of time . . .”).) The Magistrate Judge ruled that even if Rule 26(e) required Elliott to
submit further filings in this case, it did not excuse her from asking the court‟s permission

                                              12
to violate a standing order. The Magistrate Judge therefore made an express ruling upon
Elliott‟s second “substantial justification” argument, as Grider requires.
       Finally, we note the Magistrate Judge‟s remarks to the effect that she had authority
under Rule 30 to sanction for the deposition conduct. Although the Magistrate Judge‟s
oral opinion is unclear as to whether she rendered her sanctions pursuant to Rule 30 as
well as to Rule 37, it certainly would have been within her discretion to do so. Rule
30(d)(2) provides:

       The court may impose an appropriate sanction—including the reasonable
       expenses and attorney‟s fees incurred by any party—on a person who
       impedes, delays, or frustrates the fair examination of the deponent.

The Magistrate Judge made extensive findings that Elliott violated Rule 30 when she
testified on behalf of her witness by way of suggestive speaking objections. (See App. 27,
30, 31, 32.) Under Rule 30(d)(2), the Magistrate Judge had authority to impose an
“appropriate sanction” for this conduct. See Hall v. Clifton Precision, 150 F.R.D. 525
(E.D.P.A. 1993). Her findings, in light of the authority granted to her by Rule 30(d)(2),
confirm our conclusion that it was within the Magistrate Judge‟s discretion to impose
sanctions in this case.
       At bottom, sanctions awards are discretionary rulings committed to the judges who
are most familiar with the parties and their conduct. Bowers v. Nat‟l Collegiate Athletics
Ass‟n, 475 F.3d 524, 538 (3d Cir. 2007) (“The decision to impose sanctions for discovery
violations and any determination as to what sanctions are appropriate are matters
generally entrusted to the discretion of the district court.”) We do not reverse them
lightly—particularly in cases like this one, where the issue has been twice reviewed and
carefully considered by the two trial judges most intimate with the discovery process in
the case at bar. We conclude that Elliott has not demonstrated that both of those judges
abused their discretion. We will therefore affirm the District Court.
                                         *****


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