                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 09-4273
                                     ___________

                                  JAMES A. BAKER,
                                            Appellant

                                           v.

                      UNITED DEFENSE INDUSTRIES, INC.,
                d/b/a BAE SYSTEMS LAND & ARMAMENTS, INC.
                           _______________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          D.C. Civil Action No. 05-cv-2643
                               (Honorable Yvette Kane)
                                   ______________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 1, 2010

             Before: SCIRICA, STAPLETON and ROTH, Circuit Judges.

                               (Filed: December 8, 2010)
                                  _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Plaintiff-Appellant James Baker brought age discrimination and retaliation claims

under federal and state statutes against his former employer, Defendant-Appellee United

Defense Industries, Inc. d/b/a BAE Systems Land & Armaments, Inc. The District Court
                                           1
granted BAE‘s motion for summary judgment on each count of Baker‘s complaint. We

will affirm.

                                             I.

       Until his termination in 2005, Baker served as a human resources (―HR‖) manager

at BAE‘s York, Pennsylvania facility. While in BAE‘s employ, Baker reported to Gary

Flannagan, director of HR for BAE‘s Ground Systems Division. Flannagan, in turn,

reported to Elmer Doty, Vice-President and General Manager of that division. BAE

evaluates its employees annually on a four-tiered scale ranging from ―exceptional‖ to

―needs improvement.‖ Baker received a rating of ―outstanding‖ in 2001 and 2002, but,

for the period running from September 1, 2002 through August 31, 2003, Flannagan

downgraded Baker to ―good.‖ Flannagan cited Baker‘s failure to timely complete projects

and to collaborate effectively with other members of BAE‘s HR team as the rationales for

the reduction in Baker‘s performance evaluation.

       Two incidents in which Baker played a central role led to ethics complaints being

filed with BAE and directly contributed to the erosion of Baker‘s workplace reputation.

The first concerned a botched firing at BAE‘s tank plant in Cairo, Egypt. James Byrnes,

the manager in charge of BAE‘s Egypt operation, decided to eliminate the supervisory

position held by expatriate employee Woody Hawkins. Byrnes informed John Tile, his

direct superior, and Baker, his HR contact in the United States, that he intended to create

a new position which would encompass Hawkins‘ duties. Although Baker was

responsible for advising Tile on issues arising in such termination proceedings, he

                                             2
neglected to vigilantly monitor the process or to compile proper documentation.

Specifically, Baker did not take appropriate measures to ensure Byrnes was heeding his

advice, and, without fully apprising himself of the situation on the ground, he relayed to

his superiors Byrnes‘ assurances that Hawkins both had been apprised of his performance

deficiencies and lacked qualifications for the newly-created position. With Baker having

failed to flag potential problems or gaps in the record, Flannagan acceded to Hawkins‘

termination. After learning of his dismissal by seeing his job posted in a company

newsletter, Hawkins submitted an ethics complaint. The ensuing investigation exposed

Byrnes‘ deviations from protocol, and Hawkins was reinstated. As a result, Baker‘s

superiors received reprimands and decreased performance evaluations.1

       The second incident that precipitated an ethics complaint involved a ―reduction in

force‖ in which Thomas Waltimeyer‘s position with the company was eliminated.

Ordinarily, the employee chosen for termination under BAE‘s reduction-in-force policy

and procedure has received the lowest cumulative ranking within his job cluster based on

a numerical score derived from performance evaluations over the prior three years.

Waltimeyer knew he was not the lowest-ranked employee in his cluster. However, in a

meeting held after Waltimeyer had learned his position would be eliminated, Baker led

him to believe the decision was based solely on his score. Baker did not inform

Waltimeyer that the reduction-in-force policy permitted a lower-ranked employee to


1
  Baker did not receive a performance evaluation for the period spanning September 2003
to August 2004 because of the decision to terminate his employment in 2004, but the
incident was detailed in the draft evaluation Flannagan prepared for Doty in late 2004.
                                              3
salvage his position if a compelling business reason — a so-called ―business case‖ —

existed for his retention, nor did Baker divulge that such business cases had, in fact,

excepted three lower-ranked employees from termination. Although BAE had no policy

either mandating or prohibiting such disclosures, Baker claims to have believed providing

this information would have unnecessarily sent up a ―red flag.‖ Nevertheless,

Waltimeyer‘s ethics complaint sparked an investigation by Dan Sharp, BAE‘s in-house

counsel. Sharp‘s memorandum concluded Baker had provided Waltimeyer with false or

misleading information that could have compromised the reduction-in-force procedure,

and Flannagan echoed this sentiment by informing Baker that it had been improper from

an HR perspective to give Waltimeyer the impression that he was being terminated solely

on account of his numerical score.

       Baker‘s strained working relationship with his colleagues and questions about his

professional comportment buttressed the concerns felt by his superiors in the wake of

these two incidents. Without identifying Baker as the source of his unease, Doty wrote

Flannagan in March 2004 to express ―grave doubts‖ about the support management was

receiving from the HR department. In May 2004, Flannagan provided Baker with a

memorandum detailing the Hawkins and Waltimeyer incidents and outlining the various

issues thought to be plaguing his performance. This interim review called for Baker to

formulate a ―performance action plan.‖ In his plan, Baker acknowledged the two

incidents ―clearly demonstrate[d] a series of communication miscues‖ and pledged to



                                              4
treat intra-office communication as ―an essential function‖ of his job rather than as a

perfunctory chore.

       Baker‘s plan failed to placate his superiors. With Baker‘s reputation among his

peers also waning, Flannagan and Doty apparently concluded Baker could no longer be

trusted to provide consistent, reliable advice and that he could no longer function

effectively within a workplace environment where his credibility was so impaired.2 In

October 2004, Flannagan informed Baker that Doty wanted him fired and that he could

either accept a severance package or have BAE begin to document his actions with the

intent of terminating him at some future date.3 Immediately thereafter, Baker began

seeking alternative employment. He informed prospective employers he would be

available to begin work on March 1, 2005, personally prepared a set of documents styling

his departure as a reduction in force, and began clearing out his personal effects and

compiling a list of tasks to be transitioned to other employees in anticipation of a March


2
  Concerns occasioned by the Hawkins and Waltimeyer incidents were fortified by
negative feedback contained within the responses to an anonymous peer review
conducted among management personnel in September 2004. Although Baker objected to
use of these statements on hearsay grounds, the District Court properly admitted them for
the limited purpose of establishing BAE management‘s state of mind as to how Baker
was viewed by his peers. See Fed. R. Evid. 801(c) (defining ―hearsay‖ as an out-of-court
statement used to prove the truth of the matter asserted).
3
  BAE contends Flannagan informed Baker that he would be fired at the end of the first
quarter of 2005 irrespective of his subsequent performance. Although there is ample
evidence in the record to support BAE‘s contention that the decision to remove Baker
from his position was fixed in October 2004, we must resolve all genuine factual disputes
in Baker‘s favor as he attempts to resist an order of summary judgment. See Jacobs
Constructors, Inc. v. NPS Energy Servs., 264 F.3d 365, 369 (3d Cir. 2001). As we will
explain below, resolution of this dispute does not materially influence the outcome of this
matter.
                                              5
2005 departure. Despite the exchange of several counterproposals, BAE and Baker failed

to reach an amicable agreement on a settlement package. In an April 8, 2005

memorandum, Flannagan informed Baker he was being terminated pursuant to their prior

understanding that Baker‘s ―last day of work would be no later than March 31, 2005.‖

Baker‘s duties were largely redistributed to three employees: Sonefelt (54 years old),

Barge (57 years old), and Danilowicz (27 years old).

                                            II.

       Baker filed an initial charge of age discrimination with the Equal Employment

Opportunity Commission (―EEOC‖) on March 3, 2005, slightly over one month before

BAE effected his termination. On May 7, 2005, Baker augmented his filing by adding a

charge of unlawful retaliation. The EEOC issued a dismissal notice as to both charges

and informed Baker of his right to sue. On December 21, 2005, Baker initiated this

action. His amended complaint included claims of discrimination and retaliation under

both the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–34, and the

Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. Ann. §§ 951–63.4

       The District Court granted BAE‘s motion for summary judgment on each of

Baker‘s claims. The court held that while Baker could make out a prima facie case of

discrimination under the ADEA, he could not adduce sufficient evidence to persuade a

reasonable factfinder that BAE‘s proffered legitimate, nondiscriminatory justifications


4
 Because Pennsylvania courts ―generally interpret the PHRA in accord with its federal
counterparts‖ such as the ADEA, Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996),
we will collapse Baker‘s claims for the sake of our analysis.
                                             6
for his dismissal were pretextual. As for retaliation, the court found Baker could not

demonstrate the requisite causal connection between his EEOC filing and BAE‘s decision

allegedly to advance the date of his termination. We agree with the District Court‘s

conclusions, and we will affirm for the reasons outlined below.5

                                             III.

                                             A.

       We review a grant of summary judgment de novo. Harvard Secured Creditors

Liquidation Trust v. IRS, 568 F.3d 444, 450 (3d Cir. 2009). Summary judgment is proper

when there is ―no genuine issue as to any material fact‖ and the moving party is ―entitled

to judgment as a matter of law.‖ Fed R. Civ. P. 56(c)(2). An alleged factual dispute is

―genuine‖ only if the evidence bearing on the disputed fact would permit a reasonable

jury to find for the nonmoving party, and the fact is ―material‖ only insofar as its

adjudication ―could affect the outcome of the case under the applicable substantive law.‖

Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1158 (3d Cir. 1990). We must

―consider all evidence in the light most favorable to the party opposing the motion.‖ A.W.

v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d. Cir. 2007). However, if the evidence

favoring the nonmovant is ―merely colorable‖ or ―not significantly probative,‖ summary

judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).

                                             B.



5
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
                                            7
       Under the burden-shifting framework elucidated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–804 (1973), a plaintiff advancing a cause of action under the

ADEA must first establish a prima facie case of discrimination. See Brewer v. Quaker

State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (applying burden-shifting

scheme to ADEA). Assuming a plaintiff has made out her prima facie case, the burden

then shifts to the defendant to articulate some legitimate, nondiscriminatory reason for

the adverse employment action taken against the plaintiff. Id. If the employer comes

forward with this neutral explanation, the plaintiff must then prove that the stated reason

is pretextual. Id.

       Here, the District Court found that Baker had set forth a prima facie case of age

discrimination and that BAE had proffered legitimate reasons for Baker‘s termination. It

concluded, however, that Baker did not satisfy his burden of demonstrating a reasonable

factfinder could consider the ostensibly nondiscriminatory reasons for his discharge mere

pretexts for discrimination. Because the issue on appeal is whether Baker failed to raise

sufficient doubt as to the believability of BAE‘s alleged business justifications, our

analysis is confined to this terminal stage of the McDonnell Douglas analysis.

       When the defendant rebuts a plaintiff‘s prima facie case with evidence of a

legitimate, nondiscriminatory reason for its action, the plaintiff may survive a motion for

summary judgment by pointing to ―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

                                             8
motivating or determinative cause of the employer's action.‖ Fuentes v. Perskie, 32 F.3d

759, 764 (3d Cir. 1994) (emphasis added).6 To avoid summary judgment, ―the plaintiff's

evidence rebutting the employer‘s proffered legitimate reasons must allow a factfinder

reasonably to infer that each of the employer‘s proffered non-discriminatory reasons . . .

was either a post hoc fabrication or otherwise did not actually motivate the employment

action (that is, the proffered reason is a pretext).‖ Id.

       Merely questioning the wisdom of an employer‘s decision is not tantamount to

impeaching its legitimacy. For legitimacy to be called into question, the plaintiff must do

more than argue the employer was ―wrong or mistaken;‖ rather, he ―must demonstrate

such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer‘s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them ‗unworthy of credence,‘ and hence infer ‗that the employer did not

act for [the asserted] non-discriminatory reasons.‘‖ Id. at 765 (citations omitted).

6
  Throughout its brief, BAE cites Baker‘s inability to adduce evidence tending to show
that BAE‘s proffered rationales masked a discriminatory motive. Although Baker‘s case
suffers from a paucity of such evidence, BAE mistakenly believes that this shortage is
fatal at the summary judgment phase of the proceeding. Our law on this point holds
otherwise. To survive a motion for summary judgment, a plaintiff alleging age
discrimination need only (1) put forth a prima facie case; and (2) cast sufficient doubt
upon the legitimacy of whatever nondiscriminatory justification for the adverse
employment action the defendant has advanced so as to enable a reasonable factfinder to
consider the proffered justification a pretext. See Fuentes, 32 F.3d at 764. ―[I]f the
plaintiff has pointed to evidence sufficiently to discredit the defendant‘s proffered
reasons, to survive summary judgment the plaintiff need not also come forward with
additional evidence of discrimination beyond his or her prima facie case.‖ Id. Therefore,
although evidence pointing to some age-inspired animus would certainly bolster Baker‘s
contention that BAE‘s ostensibly neutral justification should be disbelieved, his
wholesale inability to demonstrate BAE was impelled by an invidious discriminatory
purpose is not damning at the summary judgment phase.
                                               9
Rephrased, the plaintiff must show ―not merely that the employer‘s proffered reason was

wrong, but that it was so plainly wrong that it cannot have been the employer‘s real

reason.‖ Keller v. Orix Credit Alliance, 130 F.3d 1101, 1109 (3d Cir. 1997).

       Although Baker impugns the sufficiency of BAE‘s purported justifications, he

fails to proffer a persuasive argument against their legitimacy. In essence, Baker‘s

primary contentions are (1) he was scapegoated for the company‘s missteps vis-à-vis

Hawkins and Waltimeyer; and (2) Flannagan‘s October 2004 comments implicitly

conceded that BAE did not feel Baker‘s prior wrongdoings warranted termination.

Neither of these positions would prompt a reasonable factfinder to surmise BAE‘s

proffered justifications did not ―actually motivate the employment action.‖ See Fuentes,

32 F.3d at 764.

       First, Baker was the principal liaison between Byrnes and BAE‘s domestic HR

outfit, and he repeatedly failed to substantiate reports emanating from Egypt before

relaying them to his superiors. Several BAE employees had their performance ratings

downgraded on account of the mishandling of the Hawkins affair, and Baker‘s share of

the blame was commensurate with the perceived dereliction of his heightened

responsibilities. And, notwithstanding Baker‘s argument that he did not contravene any

policy in the Waltimeyer imbroglio, his handling of the matter precipitated Waltimeyer

filing an ethics complaint and provided cause for concern among his employers. Whether

Baker may have absorbed more than his allocable share of the true fault for these

incidents is of no moment. The issue is whether Baker has demonstrated BAE‘s avowed

                                            10
reasons to be so implausible or incoherent as to be ―unworthy of credence,‖ and his

charge of disproportionate blame fails to impeach the legitimacy of BAE‘s justifications.

See id. at 765; see also Keller, 130 F.3d at 1109 (―The question is not whether the

employer made the best, or even a sound, business decision; it is whether the real reason

is [discrimination].‖ (internal quotation omitted)).

       Second, even if Flannagan had told Baker in October 2004 that he could either

expedite the situation by accepting a severance or have his performance scrutinized from

that moment forward with subsequent transgressions theoretically to be marshaled against

him at some future date, this alone does not imply that BAE lacked legitimate reasons to

terminate Baker‘s employment. Baker reads BAE‘s decision temporarily to refrain from

effecting his removal as a tacit admission that it lacked the grounds to do so; that is, if

BAE authentically based its decision to fire Baker on incidents that transpired in 2003, it

would not have had to place Baker‘s late-2004 performance under a microscope. Once

more, this falsely equates sufficiency with legitimacy. While there may be a genuine

issue of material fact as to whether Flannagan informed Baker that a decision had already

been made to sever his employment or whether Baker was led to believe his job might be

salvaged by addressing his perceived weaknesses, Baker has not raised a triable issue as

to whether BAE‘s stated justifications are illegitimate and should be discounted. If, in

October 2004, BAE had not yet reconciled itself to terminating Baker without having

reached an accord on a severance package, Baker has nevertheless failed to satisfy his

burden of demonstrating that a rational factfinder would infer BAE concocted a wholly

                                              11
unrelated rationale for terminating his employment between that date and April 2005. See

Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996)

(explaining ―a plaintiff will survive summary judgment if s/he can produce sufficient

evidence that the employer‘s proffered nondiscriminatory reason for its employment

action was not the true reason‖).

                                             C.

       To establish a prima facie case of illegal retaliation under the ADEA, a plaintiff

must demonstrate ―(1) protected employee activity; (2) adverse action by the employer

either after or contemporaneous with the employee‘s protected activity; and (3) a causal

connection between the employee‘s protected activity and the employer‘s adverse

action.‖ Fogelman v. Mercy Hosp., Inc. 283 F.3d 561, 567–68 (3d Cir. 2002) (quoting

Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). The EEOC filing is a

protected activity, and Baker was indisputably terminated after this occurrence. Baker

stumbles, however, at the third prong of this test. He claims BAE accelerated the date of

his termination as retribution for his March 3, 2005 EEOC filing, but the District Court

granted BAE‘s motion for summary judgment based on Baker‘s inability to adduce

sufficient evidence attesting to a causal linkage between the filing and the firing. We

agree with the District Court.

       Baker‘s lone argument is that the ―temporal proximity‖ of his filing to his April 8

termination reveals causation. While true that when a relatively brief interval separates an

employee‘s protected conduct from the ensuing adverse employment decision, ―such

                                            12
temporal proximity may provide an evidentiary basis from which an inference of

retaliation can be drawn,‖ Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005), this

evidence, standing alone, must be ―‗unusually suggestive‘ of retaliatory motive before a

causal link will be inferred,‖ Krouse, 126 F.3d at 503 (citation omitted). Moreover, an

employer‘s decision to proceed ―along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality.‖ Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 272 (2001).

       The District Court properly concluded temporal proximity is not ―‗unusually

suggestive‘ of retaliatory motive in this context.‖ The end of 2005‘s first quarter had long

been cited by the parties as a potential watershed in their relationship. Regardless of how

Flannagan‘s October 2004 communication was framed, Baker had begun making

arrangements for his impending departure, and he had personally indicated to would-be

employers that he would be ―available for hire by March 1, 2005.‖ Even taking into

account Baker‘s belief that he would not be fired until a severance package had been

agreed upon, the April 8 termination date was not unusually suggestive of a retaliatory

impulse. Because Baker cannot point to any evidence aside from temporal proximity, the

District Court correctly determined that the record is insufficient to support a finding of

causality. See Kachmar v. Sungard Data Sys., 109 F.3d 173, 178 (3d Cir. 1997)

(clarifying that ―it is causation, not temporal proximity itself, that is an element of

plaintiff's prima facie case, and temporal proximity merely provides an evidentiary basis



                                              13
from which an inference can be drawn. The element of causation, which necessarily

involves an inquiry into the motives of an employer, is highly context-specific.‖).

                                            IV.

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




                                            14
