                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                   No. 13-3917
                                  _____________

                              VINCENT EVANOSKI,
                                        Appellant

                                          v.

                         UNITED PARCEL SERVICE, INC.
                                ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 2-12-cv-00211)
                   District Judge: Honorable Mark R. Hornak
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 10, 2014
                                  ____________

            Before: AMBRO, GREENBERG and BARRY, Circuit Judges

                            (Opinion Filed: July 2, 2014 )
                                   ____________

                                     OPINION
                                   ____________

BARRY, Circuit Judge

      Vincent Evanoski appeals an order of the District Court granting summary

judgment in favor of his former employer, United Parcel Service, Inc. (“UPS”), on his

claims for unlawful discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Relations Act

(“PHRA”), 43 Pa. Cons. Stat. §§ 951, et seq. We will affirm.

                                             I.

       Evanoski worked as a Package Car Driver for UPS for over twenty years before

being terminated, in May 2011, when he was forty-nine years old.               Prior to his

termination, Evanoski had been the subject of numerous instances of disciplinary action

by UPS for various infractions including failure to follow company rules, vehicle

accidents, and failure to deliver packages in a timely fashion. Because we write primarily

for the parties, and because the District Court’s decision contains a detailed description of

Evanoski’s disciplinary history at UPS, we need not recite it in full here.

       Before terminating Evanoski in May 2011, UPS had tried to do so four other

times, in September 2002, April 2009, May 2009, and July 2010, but each time Evanoski

challenged the disciplinary action through the grievance process contemplated by the

labor agreement between UPS and his union. In each case, the discipline was reduced to

a lesser penalty, and he continued to be employed by UPS pursuant to a series of “Last

Chance” agreements.

       In January 2011, Evanoski was involved in an accident in which he backed his

UPS delivery truck into a customer’s awning, damaging it. When his managers came to

the scene of the accident, they spoke with him about the need to engage the parking

brake; the next day, however, they observed him again failing to do just that. As a result,

he received a discharge notice on February 4, 2011. Pursuant to the labor agreement,

                                             2
however, he continued to work while his challenge to the discharge was pending. During

that period of time, his supervisors observed his driving behavior on two occasions and

noted several safety concerns and “At Risk Behaviors,” including failure to wear a

seatbelt, failure to secure the on-board computer device, and failure to engage the parking

brake. These observations led to a second discharge notice dated March 15, 2011.

Evanoski challenged both discharge notices through the grievance process, and on May

10, 2011, his termination was unanimously upheld at a hearing before the UPS Western

Pennsylvania Joint Council 40 Grievance Committee, which was made up of equal

numbers of UPS representatives and union representatives.1

       After Evanoski left UPS, his delivery route was taken over by an individual who

was approximately forty years old. The route was assigned pursuant to methodology

described in the labor agreement, which permitted Package Car Drivers to bid on routes

according to their seniority.

       On February 22, 2012, Evanoski filed this action against UPS alleging violation of

the ADEA and PHRA. UPS moved for summary judgment, and, on August 30, 2013, the

District Court granted its motion. The Court concluded that while it was a “very close

call,” Evanoski adequately stated a prima facie claim of age discrimination. (Dist. Ct.

Op. at 13.)    The Court held, however, that his claim failed because he set forth

1
  Evanoski received another discharge notice in April 2011 after he was involved in an
accident in which his delivery truck’s mirror was damaged. He claims that, following the
April 2011 incident, his supervisor wrongly accused him of having collided with a school
bus based on an observation of yellow paint (of unknown origin) on the back of the
delivery truck. It is undisputed, however, that his ultimate termination was based only on
the February and March discharge notices, and not on the April notice.
                                             3
insufficient evidence that UPS’s legitimate, nondiscriminatory reasons for his discharge

constituted a pretext for discrimination, and observed that he “unqualifiedly admit[ted]”

to many of the instances of misconduct and, as to others, disputed only the level of

punishment. (Id. at 17.) The Court also held that his theories that UPS set him up to fail

by assigning him a difficult route and that he was “set up” by UPS in connection with the

April 2011 yellow paint incident were unsupported by the evidence of record.

       Evanoski now appeals, arguing that the District Court erred by failing to consider

the evidence in the light most favorable to him and in concluding that there was

insufficient evidence to support a finding of pretext.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and

we have jurisdiction pursuant to 28 U.S.C. § 1291. “We exercise plenary review over the

District Court’s grant of summary judgment,” and view the facts “in the light most

favorable to the party against whom summary judgment was entered.” Detz v. Greiner

Indus., Inc., 346 F.3d 109, 115 (3d Cir. 2003). Summary judgment is appropriate where

the movant “shows 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).

       Where an employee provides no direct evidence of discrimination, we apply the

familiar three-step McDonnell Douglas analysis to the employee’s claim under the




                                              4
ADEA or PHRA.2 Fasold v. Justice, 409 F.3d 178, 184 (3d Cir. 2005); see McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas analysis,

the employee must first establish a prima facie case of discrimination. Smith v. City of

Allentown, 589 F.3d 684, 691 (3d Cir. 2009). “[O]nce the employee establishes a prima

facie case, the burden of production (i.e., of going forward) shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the employer’s adverse employment

decision.” Id. We have held that this burden is “‘relatively light’ and is satisfied if the

employer provides evidence which, if true, would permit a conclusion that it took the

adverse employment action for a non-discriminatory reason.” Burton v. Teleflex, Inc.,

707 F.3d 417, 426 (3d Cir. 2013) (quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d

Cir. 2006)). If the employer makes this showing, “the burden of production shifts once

again to the employee to establish that the employer’s proffered justification for the

adverse action is pretextual.” Smith, 589 F.3d at 691. To make a showing of pretext

sufficient to defeat summary judgment, the employee “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 that not a motivating or determinative cause of the

2
  As the District Court properly recognized, “the PHRA is to be interpreted as identical to
federal anti-discrimination laws except where there is something specifically different in
its language requiring that it be treated differently.” Fasold v. Justice, 409 F.3d 178, 184
n.8 (3d Cir. 2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567 (3d Cir.
2002)). Here, there being nothing specifically different in the language of the PHRA, we,
as did the District Court, “will interpret the implicated provisions of the ADEA and
PHRA as applying identically in this case and as being governed by the same set of
decisional law.” Id.
                                                5
employer’s action.” Burton, 707 F.3d at 427 (quoting Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994)).

       The ADEA provides that “[i]t shall be unlawful for an employer . . . to discharge

any individual . . . because of such individual’s age.” 29 U.S.C. § 623(a)(1).3 To

establish a prima facie case of age discrimination under the ADEA, the employee must

show that (1) he is forty years of age or older; (2) the employer took an adverse action

against him; (3) he was qualified for the position at issue; and (4) he was ultimately

replaced by another employee “who was sufficiently younger to support an inference of

discriminatory animus.” Burton, 707 F.3d at 426. To prevail on an ADEA claim, the

employee must “establish that age was the ‘but-for’ cause of the employer’s adverse

action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).

       The parties do not dispute the District Court’s finding that Evanoski set forth a

prima facie case of age discrimination, nor does Evanoski dispute that UPS proffered

legitimate, nondiscriminatory reasons for his termination. He argues, however, that he

did make a showing of pretext sufficient to survive summary judgment. We disagree.

He does not dispute the factual bases for the numerous incidents over the course of his

employment with UPS that culminated in disciplinary action; he merely argues, as he did

in the District Court, that there were mitigating circumstances in connection with each

incident that should have been taken into account.           Even considering all of the

3
  The PHRA likewise provides that “[i]t shall be an unlawful discriminatory practice . . .
[f]or any employer because of the . . . age . . . of any individual . . . to discharge from
employment such individual . . . if the individual . . . is the best able and most competent
to perform the services required.” 43 Pa. Cons. Stat. § 955(a).
                                               6
circumstances cited by Evanoski with respect to these incidents, we have no difficulty

concluding that they fail to demonstrate pretext.

       We are also in agreement with the District Court that there was a lack of evidence

in the record to support Evanoski’s theory that UPS set him up to fail by assigning him to

a difficult route. Other than one anecdotal comment from a fellow driver regarding the

difficulty of this route, there is no evidence to establish whether or how it constituted “the

most difficult route available” or “one of the most difficult routes in the region,” as

Evanoski contends (see Appellant’s Br. at 12, 19), and no evidence as to how often he

was required to drive the route. Finally, the April 2011 “yellow paint” incident does not

support a finding of pretext. Not only did the April 2011 accident not factor into UPS’s

decision to terminate him, there is no evidence, and only his speculation, to support his

theory that UPS fabricated allegations against him.

       There being a lack of evidence that Evanoski’s age was a “but-for” cause of his

termination, see Gross, 557 U.S. at 177, or that UPS’s proffered reasons for his

termination were pretextual, the District Court properly granted summary judgment in

favor of UPS. We will affirm.




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