                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 13-2433
                                      ____________

                                        MIMI MA,

                                                    Appellant

                                             v.

                    WESTINGHOUSE ELECTRIC COMPANY, LLC
                               ____________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. No. 11-cv-00970)
                     District Judge: Honorable Terrence F. McVerry
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    March 6, 2014

             Before: RENDELL, SMITH and HARDIMAN, Circuit Judges.

                             (Opinion Filed: March 18, 2014)
                                     ____________

                                        OPINION
                                      ____________

HARDIMAN, Circuit Judge.

       Mimi Ma appeals the District Court’s summary judgment in favor of her former

employer, Westinghouse Electric Company, LLC. A Muslim woman who wears a

headscarf, Ma claimed that Westinghouse fired her because of gender and/or religious

discrimination and retaliation, in violation of Title VII and Pennsylvania state law.
Because we agree with the District Court that Ma did not present evidence from which a

factfinder could conclude that Westinghouse’s stated reasons for firing her were

pretextual, we will affirm.

                                             I

       In November 2007, Ma began working for Westinghouse as Program Manager of

Project Excellence, a company-wide program designed to improve project management

practices, provide a standard set of project management tools, and increase

standardization in project execution.

       In April 2008, Ma received her first performance review, which was positive.

Among other things, it mentioned that Ma had engaged with the job quickly, built a

relationship network with counterparts, mentored project managers, had twice been asked

to participate in companywide teams, kept senior management informed of her proposals,

and was developing creative and worthy project management initiatives. Ma was praised

for her energy and rated highly “based on the fact that she has displayed competencies

that would seem to exceed expectations.” App. at 285, 290. The review also noted that “it

is too early to determine long term performance” and encouraged Ma to “continue to

strive to make improvements in the Project Excellence program” and to “balance working

on initiatives with solving day to day problems.” Id. at 290.

       In August 2008, Westinghouse created a new department, Nuclear Services Major

Business Delivery, and appointed Michael Kaveney as its director. In announcing the

reorganization, Westinghouse stated that Kaveney would “have responsibility for Project


                                             2
Excellence and setting project management standards and processes globally”; Ma,

meanwhile, would maintain her position as Project Excellence manager and report to

Kaveney, instead of her previous supervisor in another department.

      Kaveney was more hands-on than Ma’s previous supervisors, and their

relationship soon soured. Not long after the two had begun working together, Kaveney

issued a written warning to Ma for showing a mock torture video 1 at a conference in

August 2008. Soon after receiving the warning, Ma told Michele DeWitt, a female

mentor who worked in a different division of the company, that Kaveney was rude and

hostile to her. Throughout the fall and winter of 2008–09, Ma and Kaveney met regularly

to discuss Kaveney’s goals for Ma’s projects. Kaveney conveyed to Ma his displeasure

with what he perceived to be her lack of progress.

      In February 2009, Ma again spoke with DeWitt about Kaveney. At DeWitt’s

recommendation, she then complained to Westinghouse’s Human Resources department

that Kaveney was rude and condescending, withheld resources and key information,

excluded her from meetings, and assigned her responsibilities to others. A Human

Resources director promptly met with Kaveney to discuss Ma’s complaints. Thereafter,

Kaveney made a spreadsheet to detail his interactions with Ma. In the spreadsheet,

Kaveney noted that at the beginning of September 2008, he had assigned Ma three main


      1
          Ma did not receive approval before presenting the video, which showed Ma
yelling at and trying to strangle and beat a Westinghouse employee who had not
providedher with the information she requested. “Your name is maggot to me until you
fill out the project management documentation,” she screamed at the employee at one
point.

                                            3
priorities, including “completion of the Project Excellence Report Card”; in October, he

wrote that he reminded her that the Project Excellence Report Card should remain her top

priority, and also noted two other priorities he wanted her to achieve before working on

other issues. The spreadsheet detailed the many days on which Kaveney said he met with

Ma to discuss uncompleted tasks and projects, and it also documented Kaveney’s

frustration with often not knowing where Ma was or what she was doing. Kaveney also

stated in the spreadsheet that he had assigned some of Ma’s work to other employees in

the group “because I needed to get [it] done.” Ma disputed the veracity of the

spreadsheet, including the dates of some of the entries, a deadline Kaveney wrote that he

had set, and whether Kaveney had previously told her a particular item was a priority.

       Ma and Kaveney met with a Human Resources manager to discuss the complaints,

but their interactions continued to be difficult. In a February 2009 email, Ma told DeWitt

that she believed Kaveney had never intended to work with her and that he and another

employee were essentially squeezing her out for reasons she did not understand. Ma

claims that in response, DeWitt told her that perhaps Kaveney had “a problem with

women or people with your religious background.” 2 Ma also expressed disappointment

in a letter to Human Resources that “the issues that I had brought to HR’s attention have

not been addressed” and stated that Kaveney had falsely accused her of missing deadlines

after she complained to Human Resources about him. App. at 364.


      2
        Dewitt denies ever saying this. Because we review the record in the light most
favorable to Ma, we accept her version of this dispute over DeWitt’s version.


                                            4
       In March 2009, Kaveney emailed Ma asking about where certain projects stood

and to tell her he was interested in attending a project kick-off event. As it happened, the

kick-off had occurred that morning, and Ma had not invited Kaveney. Unsatisfied with

Ma’s responses, Kaveney sent follow-up emails, stating, among other things: “Frankly,

the tit for tat responses I’m receiving are unprofessional and they need to end.” Id. at 296.

In response, Ma stated that her replies had been “concise and completely professional,”

and that she had not invited Kaveney to the event because people in his position were not

always present at kick-offs, and she would have invited him if she had known of his

interest. Id. at 295-96. Kaveney sent the entire exchange to Human Resources, writing:

“She never does anything wrong . . . This is going to deteriorate fast, how to coach, teach,

train, and most importantly rely on someone who is never wrong? Venting . . . . ” Id. at

297.

       Kaveney’s dissatisfaction with Ma’s ability to meet deadlines continued, and the

two continued to engage in contentious exchanges. For instance, in May, Ma accused

Kaveney of making “unfair and false accusations” about a missed deadline and told him

that he had been “clearly wrong.” Id. at 379-80. At Ma’s annual performance review, in

June 2009, Kaveney gave Ma a low rating for falling below expectations and not meeting

objectives. The review noted that Ma worked hard, offered many new ideas, was

recognized as a project management professional, and was a competent presenter.

However, it criticized her for numerous missed deadlines on key projects, poor

communication (such as emails that were too long and numerous, and a lack of follow-up


                                              5
and consistency), and perception of her leadership by executives as rushed, disorganized,

and not visible or engaged. Kaveney also wrote: “Must be more open to coaching and

criticism. I’ve seen nearly zero instances of acceptance and responsibility for any

mistakes or lack of delivery.” Id. at 301.

       Thereafter, Kaveney placed Ma on a Performance Improvement Plan (Plan), which

was to last through the end of September and contained an itemized list of performance

objectives upon which Ma’s continued employment depended. In addition to addressing

the problems noted in Ma’s review, the Plan described Ma’s level of absenteeism as

unacceptable. Ma refused to sign the Plan, arguing that it did not reflect her job

performance, although she testified that she nonetheless tried to meet its objectives. In

July, she prepared a point-by-point rebuttal of the Plan and claimed—for the first time in

any document—that she believed she was being discriminated against. She also

continued to meet with Kaveney and Human Resources pursuant to the Plan.

       In August, Ma told Kaveney that she wanted to take a three-week vacation starting

in September. Kaveney told her the timing was problematic, given the limited length of

time left in the Plan, but nonetheless allowed her to take two weeks off. The company

also extended the Plan deadline to October 15 to give Ma additional time. On October

27, 2009, Westinghouse terminated Ma’s employment. In the termination letter, Kaveney

wrote that Ma was fired for work performance not meeting expectations—including a

lack of consistency in meeting deadlines, a lack of good judgment, and an “inability to

consistently accomplish objectives through others”—and her failure to treat other


                                             6
employees with dignity and respect, such as in “extremely disrespectful and borderline

insubordinate” communications. Although management had tried to help Ma succeed, the

letter stated, she was generally resistant to those efforts. Ma disputed this

characterization of her work. A non-Muslim male took over her responsibilities.

       Ma timely filed a complaint with the EEOC and received a right-to-sue letter. She

filed this suit in July 2011, and the District Court granted summary judgment for

Westinghouse in April 2013.




                                             II 3

       We review the District Court’s summary judgment de novo. Burton v. Teleflex

Inc., 707 F.3d 417, 425 (3d Cir. 2013). Summary judgment is proper when 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). The court must

view the facts in the light most favorable to the non-movant and draw all reasonable

inferences in that party’s favor. Burton, 707 F.3d at 425. However, to survive summary

judgment, “the non-moving party must present more than a mere scintilla of evidence.”

Id. (quoting Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)).

Rather, “there must be evidence on which the jury could reasonably find for the [non-


       3
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction under 28 U.S.C. § 1291.


                                              7
movant].” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

                                             III

       Title VII prohibits employers from discharging “any individual . . . because of

such individual’s race, color, religion, sex or national origin.” 4 42 U.S.C. § 2000e–

2(a)(1). Because Ma has not provided direct evidence of discrimination, we analyze her

religion and sex discrimination and retaliation claim under the three-step framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). See, e.g., Burton v.

Teleflex, Inc., 707 F.3d 417, 425–26 (3d Cir. 2013). Here, we will assume without

deciding that the first two steps of the McDonnell Douglas test are satisfied, as the parties

did before the District Court. Ma, a Muslim woman, was fired from a job for which she

was qualified and replaced by a non-Muslim man. Westinghouse claims this was because

Ma’s performance failed to meet expectations and because she failed to treat other

employees with dignity and respect.

       Once the employer presents a legitimate, nondiscriminatory reason for the adverse

employment action, as Westinghouse did, the burden of production shifts back to the

plaintiff to provide evidence from which a factfinder could reasonably infer that the

employer’s proffered justification is merely a pretext for discrimination. Fuentes v.

Perskie, 32 F.3d 759, 764–65 (3d Cir. 1994). To show pretext, “the plaintiff must point to


       4
         “Claims under the [Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 955] are
interpreted coextensively with Title VII claims.” Atkinson v. Lafayette Coll., 460 F.3d 447,
454 n.6 (3d Cir. 2006).



                                              8
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 than not a motivating or determinative

cause of the employer’s action.” Id. at 764.

       If, as here, the plaintiff’s evidence relates to the credibility of the employer’s

justification, it “must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions . . . that a reasonable factfinder could rationally find [the

employer’s reasons] unworthy of credence.” Id. at 765 (internal quotation marks omitted).

Because “the factual dispute at issue is whether discriminatory animus motivated the

employer, not whether the employer is wise, shrewd, or competent,” the plaintiff must do

more than argue that the employer’s decision was wrong or mistaken. Id. “[I]f a plaintiff

has come forward with sufficient evidence to allow a finder of fact to discredit the

employer’s proffered justification, she need not present additional evidence of

discrimination beyond her prima facie case to survive summary judgment.” Burton, 707

F.3d at 427.

       Ma argues that she provided sufficient pretext evidence to survive summary

judgment. Westinghouse counters that the District Court properly granted summary

judgment because Ma did not present any evidence from which pretext could be inferred.

We agree with Westinghouse, because the “evidence” to which Ma points consists of her

own conclusory statements and opinions, which are legally insufficient to support an

inference of pretext.


                                               9
       We have rejected “out of hand” the notion “that the plaintiff can avoid summary

judgment [on pretext grounds] simply by arguing that the factfinder need not believe the

defendant’s proffered legitimate explanations.” Fuentes, 32 F.3d at 764. Rather, as the

Supreme Court has made clear, the plaintiff must point to evidence from which a

factfinder could reasonably infer “that the legitimate reasons offered by the defendant

were not its true reasons, but were a pretext for discrimination.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Even though on summary judgment we

“construe the facts and draw inferences in the manner most favorable to the nonmoving

party, it is equally axiomatic that a plaintiff’s conclusory statements do not create an issue

of fact.” Jackson v. E.J. Brach Corp., 176 F.3d 971, 985 (7th Cir. 1999). “An employee’s

self-serving statements about [her] ability . . . are insufficient to contradict an employer’s

negative assessment of that ability.” Id.

       The Eleventh Circuit’s decision in Alvarez v. Royal Atl. Developers, Inc. is

instructive on this point. 610 F.3d 1253 (11th Cir. 2010). There, the plaintiff, an

accountant, alleged that she had been fired because of anti-Cuban discrimination. Id. at

1261. Her former employer responded that she had actually been fired for poor job

performance. Id. at 1259–60. As here, the plaintiff disputed the criticisms of her job

performance by offering specific rebuttals to job-related errors cited by the employer. Id.

at 1260. Finding the plaintiff’s rebuttal insufficient, the Eleventh Circuit opined:

       [T]he fact that she thinks more highly of her performance than her employer
       does is beside the point. The inquiry into pretext centers on the employer’s
       beliefs and, to be blunt about it, not reality as it exists outside the decision
       maker’s head. The question is not whether it was really [plaintiff’s] fault that

                                              10
         assignments were not completed on time . . . or whether she was . . . rude to
         her colleagues and superiors . . . . The question is whether her employers were
         dissatisfied with her for these or other nondiscriminatory reasons, even if
         mistakenly or unfairly so, or instead merely used those complaints about
         [plaintiff] as cover for discriminating against her because of her Cuban origin.

Id. at 1266.

         Stated otherwise, Title VII is not a vehicle for plaintiffs “to litigate whether they

are, in fact, good employees.” Id. Thus, in Alvarez, “[e]ven if [the plaintiff] could show

[her job performance] was satisfactory by some objective standard, she has not raised a

genuine issue of material fact as to the true reason she was fired.” Id. at 1267. Rather, a

plaintiff seeking to survive summary judgment “must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions . . . that a reasonable

factfinder could rationally find [the employer’s reasons] unworthy of credence.” Fuentes,

32 F.3d at 765. The District Court concluded that Ma came up short in this regard and we

agree.

         It is clear from the record that Ma and Kaveney did not get along, but it takes more

than that to survive summary judgment in an employment discrimination case. Ma argues

that she has presented a “plethora” of pretext evidence that contradicts the core of

Westinghouse’s stated reasons for firing her: poor job performance and the failure to treat

other employees with deference and respect. But this “evidence” consists of her own

assertions that Kaveney incorrectly assessed her performance and misrepresented their

interactions and her work to Human Resources, including a six-page written explanation

of why she disagreed with the company’s decision to place her on a Plan and her own


                                                11
assertions that she was not disrespectful. For instance, Ma argues that a jury could

conclude Kaveney “fabricated the bases for his deficient evaluation of [her] work,” but

Ma’s own statements alone support such a conclusion; there is nothing inherently

suspicious about the fact that Kaveney compiled the timeline after speaking with Human

Resources.

       Ma also claims that the change in her performance review and rating from positive

in 2008 to negative in 2009 gives rise to an inference of pretext. We are unpersuaded

because “[p]retext is not established by virtue of the fact that an employee has received

some favorable comments in some categories or has, in the past, received some good

evaluations.” Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 528 (3d Cir.

1992). This is especially the case here, where Ma did not have a long history of favorable

performance reviews at the company. The 2008 review was her first at Westinghouse and

occurred after only five months on the job, and it not only contained areas for

improvement that were also at issue in the 2009 evaluation, but specifically stated that it

was too early to determine her long-term performance.

       Finally, Ma claims that her opinions about Kaveney and her one positive review,

when combined with her status as “the only Muslim employee on-site,” also suggest

pretext. We disagree. As Westinghouse notes, any individual who was the only member

of a protected class in a workplace and suffered an adverse employment action could

automatically establish pretext if Ma were correct on this point. Ma argues that a male

non-Muslim previously responsible for some of her job duties was treated more


                                             12
favorably, but she has not produced evidence to show he was similarly situated or is an

acceptable comparator.



                                            IV

       Although a plaintiff can survive a motion to dismiss with plausible allegations,

summary judgment can be avoided only by proffering evidence sufficient to create a

material dispute of fact. Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir.

2011). Ma contends that “a factfinder is more likely to credit Ma’s version of events over

that of her employer due to the steadfastness of her defense against Kaveney’s charges.”

Forceful insistence on the rightness of one’s position does not transform it into evidence,

however. Even if Kaveney’s assessment of Ma’s performance was mistaken, she has not

presented evidence from which a factfinder could find it was incoherent or contradictory.

Because Ma has failed to produce evidence from which pretext could be inferred,

summary judgment was appropriate. We will affirm the order of the District Court.




                                             13
