                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                     No. 10-3856
                                     __________

                                  BRETT SHIBLEY,

                                                   Appellant,

                                          v.

                           GENESIS HEALTH CARE, INC.



                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                              (D. C. No. 2:09-cv-03386)
                   District Judge: Honorable Michael M. Baylson


                       Submitted under Third Circuit LAR 34.1(a)
                                   on April 29, 2011

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

                          (Opinion filed: September 21, 2011)


                                    OPINION


ROTH, Circuit Judge:

I. Introduction

      Brett Shibley appeals summary judgment in favor of Genesis Health Care, Inc.

(Genesis) on his claims under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621, et seq. Genesis terminated Shibley from his position as administrator of

Genesis‟s Belvedere nursing home and replaced him with a younger temporary manager.

Shibley contends on appeal that the District Court improperly resolved disputed facts in

granting summary judgment on his ADEA claims.

II. Background1

      Belvedere is a nursing facility for the elderly and infirm, owned and operated by

Genesis in Chester, Pennsylvania. In May 2007, Shibley was hired as Belvedere‟s

Nursing Home Administrator (NHA), which is essentially the head of the facility.

Shibley reported to Paul McGuire, Genesis‟s Regional Vice President of Operations.

Genesis‟s head of Human Relations at the time was Colin Bosler. On March 10, 2008,

McGuire and Bosler informed Shibley (then age 50) that his employment was

terminated—Shibley claims he was not provided a reason for his termination but was

simply told that an administrative change was necessary. Genesis selected Steven

Zablocki, age 33, to serve as Belvedere‟s interim NHA. Several months later, Genesis

hired Terry Reardon, age 53, to serve as the permanent NHA.

      Shibley filed discrimination charges with the Pennsylvania Human Rights

Commission and the EEOC and then filed a complaint in Pennsylvania Court of Common

Pleas, alleging that Genesis had violated his rights under the ADEA and the Pennsylvania

Human Rights Act. Genesis removed the case to federal court and, after discovery,

sought summary judgment on Shibley‟s claims.
      1
         Because we write only for the parties, we briefly summarize the undisputed facts,
drawing all inferences in favor of Shibley, the non-moving party. See Barefoot Architect,
Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011).

                                            2
      In support of its summary judgment motion, Genesis submitted a Statement of

Undisputed Material Facts (SUMF) explaining that Shibley had been fired due to

numerous employee complaints. The SUMF and its supporting documents show that

from the outset, Genesis received complaints about Shibley‟s treatment of his

subordinates. Genesis‟s concerns about these complaints were reflected in Shibley‟s

2007 performance review, which rated him “Effective” in most areas, but rated him only

“Developmental” in “HR Management/Interpersonal Skills” and “Communications/Team

Building.”2 McGuire noted that Shibley “is an emotional leader at times. He will need to

challenge himself with maintaining a behavior that cannot be misread or misunderstood.”

Shibley‟s management style did not change and employee complaints continued.

      In March 2008, Belvedere‟s Director of Nursing met with Genesis‟s Executive

Vice President and Senior Vice President to express her concerns about Shibley,

reporting that he played “mind games” with his staff, that he had made inappropriate

sexual comments to several other employees, and that she suspected that he was having a

sexual relationship with one of his subordinates. The Nursing Director found it difficult

to work for Shibley and was considering another job. Less than a week later, Shibley was

terminated.

      Shibley did not offer his own account of any of these incidents. In his deposition,

he was asked about several of the incidents described above and either denied having

made the comments attributed to him in the employee complaints or stated that he was

      2
        “Developmental” is defined on the performance review form as “Performance
does not consistently meet the requirements of the position.”

                                            3
not aware of the complaints. Shibley also failed to respond to Genesis‟s SUMF as

required by Fed. R. Civ. P. 56(c). The District Court ordered him to file a response.

Shibley‟s response generally dismissed Genesis‟s allegations regarding the employee

complaints and did not cite any record evidence supporting his position, stating only that

“Plaintiff disputes this fact, as it arises from a Declaration of an individual that was not

deposed by either party.”

       The District Court granted summary judgment on all of Shibley‟s claims. The

court noted that it was not clear whether Shibley had presented a prima facie case in

support of his ADEA claim because his younger replacement, Zablocki, was a temporary

one for only four months, while Shibley‟s permanent replacement, Reardon (who is older

than Shibley), was being hired. Assuming arguendo that Shibley had presented a prima

facie case, the court found that the employee complaints presented by Genesis were a

legitimate, non-discriminatory basis for terminating Shibley. Although Shibley denied in

his deposition some of the conduct reported in these complaints, his testimony does not

raise a triable issue of fact as to whether Genesis received the complaints and relied on

them in terminating him. Shibley has failed—both before us and the District Court—to

identify specific factual conflicts between Genesis‟s evidence and his deposition. The

District Court was not required to do this for him.

       The District Court concluded that Shibley had failed to present evidence giving

rise to a genuine dispute of material fact as to whether Genesis‟s basis for terminating

him was pretextual.



                                              4
III. Discussion

         We review de novo the District Court‟s grant of summary judgment. Barefoot

Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). “While „[t]he evidence of the

non-movant is to be believed, and all justifiable inferences are to be drawn in his favor‟

in determining whether a genuine factual question exists, summary judgment should not

be denied unless there is sufficient evidence for a jury to reasonably find for the

nonmovant.” Id. (citations omitted). Claims under the ADEA are subject to the familiar

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009).

         We agree with the District Court that, even assuming Shibley has presented a

prima facie case of age discrimination, he has failed to present sufficient evidence of

pretext to raise a triable issue of fact.3 The numerous and detailed employee complaints

against Shibley for his mistreatment of his subordinates furnish a legitimate,

nondiscriminatory basis for his termination. See Jackson v. Cal-Western Packaging

Corp., 602 F.3d 374, 378 (5th Cir. 2010). The only evidence of pretext offered by

Shibley is the quality of his work at Belvedere, the fact that he was praised by his

superiors, and the two raises he received for improving the facility‟s performance.

However, Genesis terminated Shibley because of his harassment of his subordinates, not

for poor performance. Shibley‟s proffered evidence of pretext does not undermine the

legitimate basis articulated by Genesis for terminating him. See Ziegler v. Beverly

Enterprises-Minn., Inc., 133 F.3d 671, 675 (8th Cir. 1998). Accordingly, the District

3
    Shibley does not appeal summary judgment on his ADEA retaliation claim.
                                              5
Court correctly concluded that there was no material factual dispute warranting trial on

Shibley‟s ADEA claims.

IV. Conclusion

      For the foregoing reasons, we will affirm summary judgment on Shibley‟s claims.




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