                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-3974
                                      ____________

                              MARIA L. DIFRANCESCO,
                                              Appellant

                                             v.

                             A-G ADMINISTRATORS, INC.
                                   ____________

                    On Appeal from the United States District Court
                          for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 2-13-cv-04284)
                 District Judge: Honorable Nitza I. Quiñones Alejandro
                                       ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 5, 2015

              Before: FISHER, JORDAN and SHWARTZ, Circuit Judges.

                                 (Filed: August 20, 2015)
                                      ____________

                                        OPINION*
                                      ____________

FISHER, Circuit Judge.

       A-G Administrators, Inc., (“A-G”) terminated its employee, Maria DiFrancesco, in

November 2011. DiFrancesco, an accountant, filed suit against A-G alleging that she was

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
terminated due to her age in violation of the Age Discrimination in Employment Act

(“ADEA”). The District Court granted A-G summary judgment. We will affirm.

                                                  I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       In December 2009, A-G, a third-party administrator of excess accident insurance,

hired DiFrancesco as a senior staff accountant. DiFrancesco was 55. DiFrancesco’s duties

included reconciling claim accounts and premium trust accounts, producing records using

Generally Accepted Accounting Principles (“GAAP”) for external auditing, and

preparing the “bordereaux,” which is a statement used to show the breakdowns of

premiums and commissions collected.

       On November 17, 2011, at the age of 56, DiFrancesco was terminated by A-G.

A-G hired Bill Cole, who was 37, to replace DiFrancesco. DiFrancesco contends that she

was terminated due to her age, in violation of the ADEA. To support this claim,

DiFrancesco says that Jake Gillis, one of A-G’s two principals, asked her for her

birthdate in November 2010, January 2011, April 2011 (via email), and October 2011.

When DiFrancesco asked why she needed to provide this information, Gillis informed

her that it was necessary for the company’s 401(k) plan and other paperwork.

DiFrancesco additionally alleges that Jake Gillis called her “grandma” or “grandmom”

and that Dixon Gillis, A-G’s other principal, called her “lunch bag” and “old hillbilly.”



                                           2
Finally, DiFrancesco states that Dixon Gillis showed concern when she had to lift heavy

boxes.

         A-G disputes DiFrancesco’s claims, arguing instead that she was terminated for

legitimate, performance-related reasons. A-G’s stated reasons include unreliability and

lateness, poor job performance as an accountant, distracting her co-workers, lack of

respect, and being a strain on Human Resources.

         On July 24, 2013, DiFrancesco filed suit against A-G. On May 27, 2014, A-G

filed a motion for summary judgment, which the District Court granted. In its analysis,

the District Court concluded, and both parties agree, that there was no direct evidence of

age discrimination. Next, the District Court concluded that circumstantial evidence of

discrimination was also lacking against A-G because DiFrancesco could not produce

evidence that A-G’s proffered reasons for her termination were mere pretext for

discrimination. Finally, because the District Court granted summary judgment for A-G on

the ADEA claim, the Court declined to exercise supplemental jurisdiction over

DiFrancesco’s state law claim.

         DiFrancesco timely appealed.

                                             II.

         The District Court had jurisdiction over this action under 28 U.S.C § 1331 and 29

U.S.C. § 626(c)(1), and we have appellate jurisdiction under 28 U.S.C § 1291. We

exercise plenary review over the District Court’s summary judgment, applying the same




                                            3
standard the District Court did.1 We review the record in the light most favorable to the

nonmovant and will affirm only if “‘there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.’”2 We may affirm on any basis

supported by the record.3

                                             III.

                                             A.

       The central issue on appeal is whether there is a genuine dispute of material fact

that would support DiFrancesco’s claim of age discrimination, so we review it first.

Because the parties agree that there is insufficient direct evidence to sustain an age

discrimination claim, we will only analyze DiFrancesco’s circumstantial evidence.

       The familiar McDonnell Douglas4 burden-shifting framework applies to claims

under the ADEA relying on circumstantial evidence.5 At step one of the McDonnell

Douglas framework, the District Court correctly determined that DiFrancesco established

a prima facie case of age discrimination because (1) she was 40 years of age or older;

(2) she was fired; (3) she was objectively qualified for her job; and (4) she was replaced

by an employee sufficiently younger so as to raise a discriminatory inference. At step

two, the District Court also correctly determined that A-G had offered legitimate reasons

for firing DiFrancesco, namely her unreliability, perpetual lateness, poor accounting

       1
         Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014).
       2
         Heffernan v. City of Paterson, 777 F.3d 147, 151 (3d Cir. 2015) (quoting Fed. R.
Civ. P. 56(a)).
       3
         Blunt, 767 F.3d at 265.
       4
         McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
       5
         Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).


                                            4
skills, and lack of respect, as well as her tendency to cause distractions in the office and a

strain on human resources. This case turns on the final step of the McDonnell Douglas

framework: whether DiFrancesco offered enough evidence to show that A-G’s proffered

reasons for her termination were pretext for discrimination. To show pretext,

DiFrancesco must produce some evidence from which a rational factfinder could

disbelieve A-G’s proffered reasons or believe that invidious discrimination was a more

likely cause of her termination.6 To prevail, DiFrancesco must show “that age was the

‘but-for’ cause of [A-G]’s adverse action.”7

       Put simply, DiFrancesco produced insufficient evidence showing that A-G’s

reasons for firing her were pretextual. The evidence shows that DiFrancesco made

numerous mistakes in her job. For example, in January 2011, DiFrancesco made an

unauthorized transfer of $265,000 between A-G’s accounts, which was “very

concerning” to Dixon Gillis.8 Although DiFrancesco testified that she received

authorization from Jake Gillis to make the transfer, there is no record evidence of this

authorization and any mistake by Dixon Gillis is not enough to show that his documented

concern about her performance was pretextual.9 In another example, Brian Clouse, then

A-G’s external auditor, charged $7,913 more for his 2010 audit than the 2009 audit

because DiFrancesco did not prepare statements according to GAAP standards, which


       6
          Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
       7
          Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
        8
          App. Vol. 2 at 216.
        9
          Fuentes, 32 F.3d at 765 (“To discredit the employer’s proffered reason . . . the
plaintiff cannot simply show that the employer’s decision was wrong or mistaken . . . .”).



                                          5
made Clouse’s job more difficult. He further explained that these mistakes were

“atypical” of trained accountants.10

       Nor has DiFrancesco produced any evidence suggesting that perpetual lateness,

unreliability, and disruptive behavior were not contributing factors to her termination. For

example, a February 2011 email from Dixon Gillis to Jake Gillis described DiFrancesco

as a mess and complained of DiFrancesco speaking inappropriately to him. In another

example, on May 30, 2011, Jake Gillis sent an email to DiFrancesco informing her that

she had been unprofessional and unreliable by telling Gillis she would be out of the office

on the following Monday but being noncommittal on her plans for the rest of the week.

Although DiFrancesco disputed the accuracy of some of the criticisms from Gillis’s May

30 email, she acknowledged that she considered the email to be her one and only

warning. In addition, DiFrancesco’s coworkers testified that she was a distraction. She

took personal phone calls at work, was often loud, and treated coworkers in a

condescending manner. Again, DiFrancesco disputes these accusations, but she cannot

otherwise point to any evidence that would allow a reasonable finder of fact to view these

proffered reasons as false.

       Finally, DiFrancesco cannot point to evidence that would allow a reasonable

finder of fact to conclude the aforementioned deficiencies did not lead to her termination.

In an October 24, 2011 email from Jake to Dixon Gillis, Jake Gillis wrote, “We

absolutely need to find a new accountant. Some of the obvious main reasons: perpetual


       10
            App. Vol. 2 at 202.



                                           6
tardiness[;] unpredictable schedule and abus[e] of our lenience and PTO[;] unwillingness

to admit mistakes and regularly making them[;] and either lack of awareness of her

surroundings or just plain inconsideration for others in the workplace.”11 The email also

contained additional examples of problems with DiFrancesco’s behavior at work.

       With respect to the alleged ageist remarks, we conclude that they do not

sufficiently cast doubt on A-G’s legitimate reasons for firing DiFrancesco to show that

age discrimination was the but-for cause of her termination. Nothing in the record shows

that DiFrancesco’s performance and personal problems did not independently form the

reason for A-G’s decision to fire her. Accordingly, we conclude that DiFrancesco has

failed to show that A-G’s proffered reasons for firing her were a pretext for

discrimination and that summary judgment was therefore appropriately granted.




                                                 B.

       Next, we consider DiFrancesco’s arguments that the District Court applied the

wrong legal standard for causation and engaged in improper fact-finding. As previously

mentioned, “but-for” causation is required to state a claim under the ADEA.12 The

District Court applied the wrong standard, DiFrancesco argues, when it wrote that a

reasonable fact-finder could not find that A-G’s reliance on DiFrancesco’s disruptive

behavior for firing her was “motivated by a discriminatory animus towards her based

       11
            App. Vol. 2 at 306 (bullet points omitted).
       12
            Gross, 557 U.S. at 177.



                                             7
solely on her age.”13 DiFrancesco contends that this statement by the District Court shows

that the District Court improperly required her to prove that discrimination was the sole

cause of her termination, not just the but-for cause. However, any error was harmless

because the District Court correctly recited and applied the but-for standard elsewhere in

its analysis, and because we independently conclude that DiFrancesco has not

demonstrated that age discrimination was a but-for cause of her termination.

       Nor do we agree with DiFrancesco that the District Court applied the wrong

summary judgment standard and engaged in improper fact-finding. Although the District

Court on several occasions used the words “this Court finds,” the Court’s use of the word

“finds” was synonymous with “concludes” or “holds,” and not indicative of the Court

finding facts in areas disputed by the parties. The District Court used the proper standard,

and properly concluded that no rational jury could conclude A-G’s proffered reasons for

DiFrancesco’s termination were pretextual.

                                             IV.

       For the reasons set forth above, we will affirm the order of the District Court.




       13
            App. Vol. 1 at 25 (emphasis added).



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