                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     _____________

                                      No. 15-2350
                                     _____________


                              STEPHANIE FAHNESTOCK,
                                                              Appellant

                                             v.

                     CARLISLE REGIONAL MEDICAL CENTER

                      _____________________________________

                 On Appeal from the United States District Court for the
                             Middle District of Pennsylvania
                             (M.D. Pa. No.: 1-13-cv-01872)
                      District Judge: Honorable John E. Jones, III
                     _____________________________________


                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 15, 2016


                                  (Filed: August 8, 2016)

                Before: SMITH, ROTH and RENDELL, Circuit Judges.

                                      ____________

                                      O P I N I O N*
                                      ____________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RENDELL, Circuit Judge,

        Plaintiff-Appellant Stephanie Fahnestock, a former employee of Defendant

Carlisle Regional Medical Center (CRMC) appeals the District Court’s order granting

Defendant’s motion for summary judgment. Fahnestock brought a single claim under the

Age Discrimination and Employment Act (ADEA), alleging that her termination from

CRMC was illegal age discrimination. The District Court found that CRMC proffered a

legitimate nondiscriminatory reason for terminating her employment and that the

nondiscriminatory reason for her termination was not a pretext for age discrimination.

We will affirm the District Court’s Order.

 I.     Background

        Throughout Fahnestock’s twenty-eight year employment with CRMC, from July

2, 1984, until April 30, 2012, she was the subject of several complaints and disciplinary

actions. In 1999, two patients filed complaints against Fahnestock, alleging unacceptable

demeanor with patients. In 2007, she was reprimanded for using inappropriate language

at the front desk while a patient was present in the waiting area. In 2008, Fahnestock

received a one-day suspension for failing to follow the proper procedure for utilizing flex

time.

        Disciplinary action against Fahnestock became frequent in 2011 after a new

administration took over the radiology department at CRMC. On January 6, she was

issued a verbal warning for failing to follow the proper protocol for taking sick leave. On

May 12, she received a written warning after a patient complained that Fahnestock made

                                             2
inappropriate comments regarding the patient. On June 16, she was issued a written

warning after she risked harm to a patient by incorrectly placing a biopsy guide on a

transducer, resulting in the patient’s being placed in an incorrect position. On November

23, she received a written warning detailing several performance concerns, including two

complaints from providers regarding poor imaging quality, general customer service

problems, and three quality assurance errors. Notably, Fahnestock told a patient, without

the authority to do so, that her imaging results were normal and allowed her to leave. In

fact, the results were abnormal and indicated serious issues, and the patient had to be

contacted and admitted to the hospital. In December 2011, Fahnestock received a 62%

on her annual performance evaluation.

       In April 2012, CRMC’s Human Resources Director sent an email entitled

“Termination Review” to the Regional Director of Human Resources detailing

Fahnestock’s 2011 disciplinary actions. Fahnestock was terminated several days later for

“unsatisfactory performance.” CRMC hired Emily Rex, who was twenty-three at the

time, as a replacement. She was originally hired on an as-needed basis, but she assumed

the full-time position three months after Fahnestock’s termination.

       Fahnestock filed a Complaint against CRMC on July 9, 2013, alleging age

discrimination under the ADEA, 29 U.S.C.A. § 621, et seq. CRMC filed a Motion for

Summary Judgment on September 9, 2014, which the District Court granted.

II.    Discussion1


       1
        The District Court had jurisdiction under 28 U.S.C. § 1331; we have jurisdiction
pursuant to 28 U.S.C. § 1291. We exercise plenary review over an order granting
                                             3
          Under the ADEA, it is unlawful for an employer to terminate an employee who is

at least forty years old on the basis of age. 29 U.S.C. § 623(a)(1); Fakete v. Aetna, Inc.,

308 F.3d 335, 337 (3d Cir. 2002). To prevail on an ADEA claim, the Plaintiff must show

that her age actually motivated and had a determinative influence on the employer’s

decision to terminate. Fakete, 308 F.3d at 337. A Plaintiff can meet this burden by

presenting indirect evidence of discrimination that satisfies the three-step framework

outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Fakete, 308 F.3d

at 338.

          The first step under McDonnell Douglas is to show a prima facie case of

discrimination. The prima facie case for age discrimination under the ADEA requires

showing that the employee: (1) is over forty years old; (2) is qualified for the position in

question; (3) suffered an adverse employment decision; and (4) was replaced by someone

sufficiently younger to permit a reasonable inference of age discrimination. See Potence

v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004). Once the prima facie case

is established, the second McDonnell Douglas step shifts the burden of production to the

employer to show a legitimate nondiscriminatory reason for the adverse employment

decision. Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009). If the employer

successfully provides a nondiscriminatory explanation, the burden of production returns

to the employee to demonstrate that the employer’s articulated reason was a pretext for

summary judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). Summary
judgment is appropriate if the evidence shows “that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c).

                                              4
age discrimination. Id. To show pretext, the employee must point to evidence “from

which a factfinder could reasonably either (1) disbelieve the employer’s articulated

legitimate reason[]; or (2) believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the employer’s action.” Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Although the evidentiary burden of production

shifts under the McDonnell Douglas framework, the burden of persuasion remains with

the Plaintiff. Id.

       It is undisputed that the first two steps of the McDonnell Douglas analysis are

satisfied in this case. Fahnestock has established a prima facie case of age

discrimination, and CRMC has presented a legitimate nondiscriminatory explanation for

her termination—poor job performance as evidenced by multiple disciplinary actions.

The sole issue on appeal is whether the District Court erred when it concluded that

Fahnestock failed to show that CRMC’s reason for termination was a pretext for age

discrimination. It did not.

       First, Fahnestock argues that the disciplinary actions against her were “so far

attenuated [that] no reasonable juror would believe they had any bearing on the

Defendant’s decision to terminate in 2012.” (Appellant Br. 16). She claims that CRMC

started targeting her with citations in 2011, and that it “strains credulity” that her work

“be[came] poor after decades of work with no problems.” Id. However, the facts show

that Fahnestock did not have “decades of work with no problems.” In fact, she had

disciplinary actions in 1999, 2007, and 2008. Further, even if the only reprimands she

had received were from 2011, “prior good evaluations alone cannot establish that later

                                              5
unsatisfactory evaluations are pretextual.” Billet v. CIGNA Corp., 940 F.2d 812, 826 (3d

Cir. 1991). It is thus irrelevant that the majority of Fahnestock’s disciplinary incidents

occurred only in 2011. Fahnestock may have received more disciplinary citations in

2011 due to the change in standards and protocols following CRMC’s acquisition of a

new radiology group. As the District Court noted, Fahnestock never challenged the

veracity of the disciplinary citations themselves, indicating that they may have indeed

been legitimate, not pretextual.

       Second, Fahnestock argues that the disciplinary citations produced by CRMC

constitute improper hearsay evidence because they referenced unidentified physicians

and it was undisclosed when or how the complaints were made. “Hearsay is a statement,

other than one made by the declarant while testifying at trial, offered in evidence to prove

the truth of the matter asserted.” United States v. Sallins, 993 F.2d 344, 346 (3d Cir.

1993); Fed. R. Evid. 801(c). The citations in this case do not constitute hearsay because

they were not offered as evidence to prove the truth of the matter asserted. The

documents were being offered to explain CRMC’s motivation for terminating

Fahnestock’s employment, not to assert the truth of the statements therein. See, e.g.,

Wolff v. Brown, 128 F.3d 682, 685 (8th Cir. 1997) (“such documents are relevant and

admissible because they help explain . . . the employer’s conduct.”). The disciplinary

citations are thus admissible and were properly considered on summary judgment.

       Finally, Fahnestock argues that a reasonable jury could determine that CRMC’s

explanation her termination was pretextual given the “wholly inadequate explanation for

her replacement by Emily Rex.” (Appellant Br. 18). She alleges that the circumstances

                                              6
surrounding Rex assuming the position full-time, when the original plan was to hire Rex

on an as-needed basis, present a dispute of material fact for trial. Id.

       This argument is mere speculation, and speculation does not create a genuine issue

of fact. See Lexington Ins. Co. v. W. Pa. Hosp., 423 F.3d 318, 333 (3d Cir. 2005).

Further, the circumstances surrounding the hiring of a replacement is irrelevant to

CRMC’s initial motivation behind terminating Fahnestock. A reasonable jury could thus

determine that CRMC’s explanation was not pretextual, even considering the allegedly

inadequate explanation for the commencement of Rex’s employment.2

III.   Conclusion

       Fahnestock failed to show pretext because she did not provide evidence from

which a reasonable factfinder could disbelieve CRMC’s articulated legitimate reason for

termination, and has failed to show that age discrimination was more likely than not a

motivating cause of CRMC’s decision to terminate. See Fuentes, 32 F.3d at 764. Thus,

we will affirm the District Court’s order granting CRMC’s motion for summary

judgment.




       2
        Fahnestock also argues that the citations violate Fed. R. Civ. P. 26(a)(1)(A)(i)
and 37(c)(1) because the identities of the physicians were never disclosed. This argument
was not raised before the District Court; thus, it has been waived.
                                              7
