 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                            No. 09-4228


                         EVA-PIA REICH,
                                   Appellant
                               v.

              SCHERING-PLOUGH CORPORATION



           On Appeal from the United States District Court
                     for the District of New Jersey
                       (D.C. No. 2-07-cv-01508)
           District Judge: Honorable Katharine S. Hayden



             Submitted Under Third Circuit LAR 34.1(a)
                         October 25, 2010

Before: McKEE, Chief Judge, SLOVITER, and RENDELL, Circuit Judges.

                      (Filed: October 29, 2010)



                             OPINION
SLOVITER, Circuit Judge.

      Appellant Dr. Eva-Pia Reich, Ph.D appeals from the District Court’s grant of

summary judgment in favor of her former employer, Schering-Plough Corp, on Reich’s

claims of age discrimination and retaliation under the Age Discrimination in Employment

Act of 1967 (“ADEA”), 29 U.S.C. § 621, and the New Jersey Law Against

Discrimination (“NJLAD”), N.J.S.A. § 10:5-1. We will affirm.

                                            I.

                         Factual and Procedural Background

      In June 1999, Schering hired Reich, then fifty-five years old, as a Principal

Scientist. She initially worked under the supervision of Dr. Paul Zadovny and focused on

in-vivo (living) experiments. In her performance reviews, Zadovny gave Reich positive

ratings in the categories of “Cross-Functional Teamwork” and the subcategories under

“Leadership.” Zadovny, however, was not trained as an in-vivo biologist.

      In early 2003, Schering raised its performance expectations, but continued to use

the cross-functional teamwork and leadership categories as performance benchmarks.

About a year later, Dr. Jay Fine replaced Zadovny as Reich’s supervisor. At the time

Reich was assigned to Fine’s group in 2004, Reich was fifty-nine years old and Fine was

forty-two.

      In Reich’s 2004 mid-year review, Fine suggested Reich could improve in the areas

of cross-functional teamwork and scientific leadership. Unlike Zadovny, Fine was
trained as an in-vivo biologist. He rated Reich’s overall mid-year performance as “AE”

or “At Expectations,” a positive rating under the new system. App. at 588-89.

Nonetheless, Reich was disappointed because she believed that she was entitled to a

higher rating.

       For her 2004 year-end review, Fine again rated Reich’s work as AE. Although

Reich did not believe Fine gave her the AE evaluations because of her age, she complains

that Fine gave her vague and unhelpful guidance. In contrast, Fine’s notes detail the

specific guidance he gave Reich with respect to communication and leadership.

       In early 2005, Schering heightened its leadership expectations. In May of that

year, Fine told Reich he had attempted to have her demoted because he had too many

“senior scientists” in his work group. App. at 878. Although there were Senior Scientists

at Schering, Reich was a Principal Scientist and considered Fine’s comment to be a

remark regarding her age.

       In her 2005 mid-year review, Fine gave Reich an overall rating of “BE” or “Below

Expectations,” noting she had failed to meet expectations with respect to developing

effective cross-functional relationships and demonstrating consistent scientific leadership.

In early 2006, Fine informed Reich that she was being placed on a three-month

Performance Improvement Plan (“PIP”), which included the warning: “[f]ailure to take

the required action to improve your performance will result in more severe action, which

may include termination of your employment.” App. at 573.
       In May 2006, Fine had his two-month PIP discussion with Reich, giving her

positive feedback on her technical performance, but again noting Reich needed to

improve her scientific leadership and communication skills. On June 1, Reich filed a

charge of age discrimination with the New Jersey Division of Civil Rights. When Reich

informed Human Relations that she had filed a complaint, the person to whom she spoke

stated, “oh, no, you shouldn’t have done that . . . .” App. at 886. Schering did not begin

an internal investigation until after it received a formal copy of Reich’s complaint on

June 21 from the New Jersey Division on Civil Rights. On June 22, Reich gave her final

PIP presentation.

       Schering terminated Reich’s employment, on Fine’s recommendation, on June 27,

2006. Reich amended her charge of age discrimination to include retaliatory discharge in

violation of the ADEA and NJLAD. The District Court granted Schering’s motion for

summary judgment on Reich’s claims, concluding that although Reich had established

prima facie cases of both age discrimination and retaliation, Schering had articulated

legitimate non-discriminatory reasons for its actions and Reich had not sufficiently

demonstrated that those reasons were pretextual. This timely appeal followed. 1



                                            II.



            1
              The District Court exercised federal question jurisdiction over Reich’s
            claims under 28 U.S.C. § 1331. We have appellate jurisdiction over the final
                                         Analysis 2

         We evaluate claims under the ADEA and NJLAD under the framework articulated

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in which the burden of

production shifts between the claimant and respondent. See Smith v. City of Allentown,

589 F.3d 684, 689-90 (3d Cir. 2009) (ADEA claim); Sarnowski v. Air Brooke Limousine,

Inc., 510 F.3d 398, 403 (3d Cir. 2007) (NJLAD claim). The burden of persuasion,

however, remains on the claimant to prove, by a preponderance of the evidence, that age

was the “but-for” cause of the challenged adverse employment action. Gross v. FBL Fin.

Serv., Inc., 129 S.Ct. 2343, 2352 (2009); Smith, 589 F.3d at 690-91. Reich claims the

District Court erred in concluding she had failed to meet her final burden under the

McDonnell Douglas framework to present sufficient evidence “to meaningfully throw

into question” Schering’s reasons for its actions, or “from which a factfinder could

reasonably conclude that an illegitimate factor more likely than not was a motivating or

determinative cause” of those actions. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.

1994).

         The only evidence Reich introduced regarding alleged age discrimination


              decision of the District Court under 28 U.S.C. § 1291.
              2
                Viewing the facts in the light most favorable to Reich, we exercise plenary
              review of the District Court’s grant of summary judgment in favor of
              Schering. See Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 566 n.3 (3d
              Cir. 2002). Summary judgment is proper if there is no genuine issue of
              material fact and the moving the party is entitled to judgment as a matter of
consisted of a remark by Fine four or five years earlier, before he became her supervisor,

referring to a job applicant as “that old guy,” App. at 771, and his 2006 comment asking

staff members about another applicant, “Young and cute huh, ladies? What do you think

about that, you think you would like to have him in the department?” App. at 876. The

District Court concluded that Fine’s “throw-away remarks [were] too removed in time

and too de minimis to constitute direct or indirect evidence of age-based animus.” App.

at 30. See also Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.

1992). Thus, the court concluded that “[t]aken as a whole, the evidence [Reich] has

adduced is not sufficient to permit the inference of discrimination or retaliatory

termination . . . .” App. at 30. We agree.

       Reich emphasizes she offered evidence “of significant inconsistencies between Jay

Fine’s formal evaluations of [her] performance with the evaluations from her prior

supervisor, inconsistency between [Fine]’s daily feedback regarding her work and his

formal evaluations, [and] the purely subjective nature of his criticism . . . .” Appellant’s

Reply Br. at 5; see Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir.

2000) (“cloaking [subjective] criteria with an appearance of objectivity does not

immunize an employment decision”); Fuentes, 32 F.3d at 765 (claimant must show

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in”

employer’s reasons). Schering, however, was neither inconsistent nor improperly reliant


             law. Id.; see also Fed. R. Civ. P. 56(c).
on subjective criteria here. See Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991)

(“The fact that an employee disagrees with an employer’s evaluation of h[er] does not

prove pretext.”), overruled in part on other grounds, St. Mary’s Honor Ctr., 509 U.S. 502

(1993).

       The District Court gave careful consideration to Reich’s claims. It concluded that

Reich established a prima facie claim of discrimination, but that a reasonable jury could

conclude that Schering had a nondiscriminatory basis for terminating Reich, and that

Reich did not produce sufficient evidence of retaliation such that a reasonable juror could

find in her favor. We agree. Reich has failed to demonstrate the District Court erred.

                                           III.

                                       Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.
