                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                    No. 12-3394
                                   _____________

                               OGNIAN KAMENOV,
                                                       Appellant
                                          v.

                                 HIGHWOOD USA
                                  ______________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                           (D.C. Civil No. 11-cv-00915)
                  District Judge: Honorable A. Richard Caputo
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                   July 11, 2013
                                  ____________

        Before: GREENAWAY, JR., SLOVITER and BARRY, Circuit Judges

                            (Opinion Filed: July 23, 2013)
                                   ____________

                                     OPINION
                                   ____________


BARRY, Circuit Judge

      Ognian Kamenov appeals from the District Court‘s grant of summary judgment in

favor of his former employer, Highwood USA, LLC (―Highwood‖), on his age

discrimination claim under the Age Discrimination in Employment Act of 1967
(―ADEA‖), 29 U.S.C. § 621 et seq. For the reasons stated below, we will affirm.

                                            I.

      As we write primarily for the parties, we include only those facts relevant to the

disposition of this appeal. In December 2003, Kamenov, then fifty-one years old, was

hired by Highwood‘s President and Chief Executive Officer, John Quarmley, then

approximately forty-two years old, to serve as Highwood‘s Technical Director. In April

2008, Quarmley had a discussion with Kamenov about an inappropriate remark Kamenov

had made to a female colleague. Quarmley also referenced several other female

employees that had similarly reported being made uncomfortable by Kamenov‘s

comments. In April 2009, Quarmley assigned Bob Drogan to manage all of Highwood‘s

technical functions, which entailed, in part, supervising Kamenov. Kamenov, however,

refused to work for Drogan. On April 9, 2010, Quarmley met with Kamenov to discuss

his job performance and advised Kamenov that he needed to adopt a better team-oriented

attitude and a less dictatorial managerial style. In September 2010, Quarmley noted

similar concerns after Kamenov refused to train and mentor a fellow employee without a

contract. On October 6, 2010, Quarmley terminated Kamenov‘s employment. Kamenov

was fifty-eight years old at the time. Quarmley selected employee Adam Barilla, who

was then twenty-four years old, to assume Kamenov‘s tool design responsibilities.

      On May 13, 2011, Kamenov filed suit against Highwood alleging that he was

terminated because of his age in violation of the ADEA. After discovery, Highwood

moved for summary judgment, and the District Court granted the motion by order dated

                                            2
August 6, 2012. Kamenov moved for reconsideration, a motion the Court struck by order

dated August 17, 2012, for failure to comply with the requirements of Local Rules 7.1

and 7.10. Kamenov timely appealed both orders. 1

                                            II. 2

       Under the ADEA, an employer may not ―discharge any individual or otherwise

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).

To succeed on an ADEA claim, ―a plaintiff must show that his or her age ‗actually

motivated‘ and ‗had a determinative influence on‘ the employer‘s decision to fire him or

her.‖ Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002) (quoting Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)). This may be done by direct

evidence of discrimination or indirect evidence that satisfies the three-step burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Fasold

v. Justice, 409 F.3d 178, 184 (3d Cir. 2005) (citing Fakete, 308 F.3d at 337-38).

       Kamenov relies on indirect evidence; therefore, we analyze his claim under


1
 Kamenov does not address the motion for reconsideration on appeal and, thus, has
waived any issue as to it. Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000).
2
  The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291. We exercise plenary review over a grant of summary judgment and
apply ―the same standard that guides our district courts.‖ Dee v. Borough of Dunmore,
549 F.3d 225, 229 (3d Cir. 2008) (citation omitted). Thus, we can affirm only ―if
[Highwood] shows that there is no genuine dispute as to any material fact and that
[Highwood] is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(a); see Araujo
v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir. 2013).

                                             3
McDonnell Douglas. The plaintiff bears the initial burden of establishing a prima facie

case of discrimination under the ADEA. This requires proof that: (1) the plaintiff was a

member of the protected age class; (2) he suffered an adverse employment decision; (3)

he was qualified to hold the position; and (4) he was replaced by a significantly younger

employee. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009). If the plaintiff

establishes a prima facie case, ―the burden of production shifts to the employer to

identify a legitimate non-discriminatory reason for the adverse employment action.‖ Id. at

690 (citation omitted). If the defendant carries this burden, the burden of production

shifts back to the plaintiff ―to demonstrate that the employer‘s proffered rationale was a

pretext for age discrimination.‖ Id. (citation omitted); see Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). ―Throughout this burden-shifting

exercise, the burden of persuasion, including the burden of proving but for causation . . .

remains on the employee.‖ Smith, 589 F.3d at 691 (3d Cir. 2009) (internal quotation

marks and citations omitted).

       Highwood concedes that Kamenov has established a prima facie case of

discrimination, but asserts a non-discriminatory justification, i.e., that its decision to

terminate Kamenov was based not on his age, but on the fact that he did not work well

with others and made no effort to fit into Highwood‘s culture of teamwork and

collaboration. At this point, the burden rests with Kamenov to produce evidence from

which a reasonable jury could conclude that Highwood‘s proffered justification is

pretextual and that he would not have been fired but for his age. See Fuentes v. Perskie,

                                               4
32 F.3d 759, 765 (3d Cir. 1994). Kamenov has failed to do so. As the District Court

noted, on several occasions Quarmley spoke to Kamenov about his interaction with co-

workers and fitting into Highwood‘s collaborative environment. Quarmley also

identified specific examples of Kamenov‘s lack of cooperation—his reluctance to mentor

and train a colleague, and his refusal to be supervised by a fellow employee. Kamenov

admits that no one from Highwood ever made a comment, spoken or written, about his

age and testified that all that supports his belief that he was discriminated against based

on his age is his own ―internal instinct.‖ (Appellant App., vol. II, 28a–29a). 3

       In sum, Kamenov failed to make a sufficient showing that Highwood‘s proffered

reasons for terminating him were a pretext for age discrimination.4

                                             III.

       For the aforementioned reasons, we will affirm the August 6, 2012 and August 17,

2012 orders of the District Court.




3
 It bears mention that at the time Kamenov was hired, both he and Quarmley were
members of the protected age class (forty and over). Kamenov also never contested the
employee statistics listed in Quarmley‘s affidavit: twenty-four out of Highwood‘s fifty-
four employees were in the same protected class as Kamenov, and of those twenty-four,
eleven were older than fifty years old, three of them older than Kamenov.
4
  Kamenov complains of Highwood‘s failure to produce a spreadsheet it possessed that
detailed the birth date, hire date, and termination date for all of its employees. The
spreadsheet did not fall within the scope of Kamenov‘s request for documents, however,
and his specific request for its production was untimely, made after the close of factual
discovery on May 3, 2012. (Appellant App., vol. II, 109a; Appellee App. 228a, 233a).
In addition, Kamenov never moved to compel its production, even after Highwood did
not respond to his untimely request.
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