                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 16-1463
                                     ______________

                              SHELLY SALAK NEWELL,
                                              Appellant

                                             v.

                  HERITAGE SENIOR LIVING, LLC;
        WESTRUM HANOVER, LP, trading as TRADITIONS OF HANOVER

                                     ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                                (D.C. No. 5-12-cv-06094)
                        District Judge: Hon. Lawrence F. Stengel
                                    ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  December 20, 2016
                                   ______________

         Before: SMITH, Chief Judge, McKEE and SHWARTZ, Circuit Judges.

                                (Filed: December 20, 2016)

                                     ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Shelly Salak Newell appeals from the District Court’s order granting summary

judgment in favor of Defendants on her retaliation claim under the Fair Housing Act, 42

U.S.C. § 3601 et seq. (“FHA”). For the reasons set forth below, we will affirm.

                                             I

       Defendant Westrum Hanover, LP, t/a Traditions of Hanover (“Traditions”), is an

independent living community for seniors that rents apartments and provides certain

services to its residents. Defendant Heritage Senior Living, LLC provides management

services to Traditions. In October 2010, Newell began working at Traditions as a

marketing manager and reported directly to the marketing director, Jennifer Murphy.

Newell’s job description included “assisting [Murphy] in representing the residence in a

positive light, maintaining favorable relationships with hospitals, local physicians, and

other marketing and referral sources.” Supp. App. 205.

       During the first six months of her employment, Newell received generally positive

feedback on her performance, but she struggled with using Traditions’ computerized

sales system and with getting potential residents to visit the community. In April 2011,

Newell requested Murphy’s permission to run for election to the board of Lehigh Valley

Aging in Place (“LVAIP”), a local organization in Traditions’ industry. Murphy denied

this request, citing concerns about Newell’s performance. Around this time, Newell

developed a tense working relationship with Murphy and reportedly made critical

statements about Murphy at an LVAIP event. Despite the poor working relationship

between Newell and Murphy, Newell received a very positive annual performance



                                             2
evaluation from Murphy in October 2011, but Murphy noted that Newell “can be very

opinionated and needs to be willing to consider other points of view.” Supp. App. 214.

       Shortly after Newell started working at Traditions, Newell raised concerns that

Traditions’ process for evaluating the “appropriateness” of potential residents violated the

FHA. Supp. App. 171. She thereafter made specific complaints. In January 2012,

Newell told Murphy that Traditions violated the FHA by discriminating against a

prospective resident couple because the husband used a wheelchair. Newell also

expressed concern about certain draft documents circulating in late February 2012 setting

forth guidelines to determine whether a prospective resident was a proper fit for

Traditions. One such document contained language indicating that, to be successful in

the independent living environment of Traditions, the ideal residents “require minimal or

no assistance, medical or otherwise,” are independently mobile, capable of feeding and

dressing themselves, independent regarding personal hygiene, and responsible for

managing their own medications. Supp. App. 228. Another document stated that “[w]e

are looking for new residents with a high acuity level” and that the residents needed to be

able to take their own medications, get to and from the dining room on their own, transfer

in and out of a dining room chair by themselves, and manage any incontinence issues.

Supp. App. 247. Newell wrote to Murphy and Diane Nowakowski, Traditions’ Executive

Director, that these policies were “too subjective and restrictive” and required residents to

be “strictly independent,” Supp. App. 228, even though Traditions had current residents

who required support, and that it therefore appeared that Traditions had different criteria

for new residents. Although Newell’s written comments did not explicitly reference the

                                             3
FHA, Newell testified that, in the days that followed the circulation of these documents,

she specifically told Murphy that the proposed admission guidelines violated the FHA.

       By late February 2012, Newell’s relationship with Murphy had deteriorated, and

Murphy told Newell that she needed to maintain a more positive attitude, show Murphy

respect, and take direction from Murphy without pushback. Their working relationship

did not improve, and Murphy and Nowakowski met with Newell in late March 2012 to

discuss her performance. During the meeting, Murphy and Nowakowski told Newell that

she needed to improve her attitude, stop commiserating with the staff and residents, and

communicate in a respectful manner with Murphy. Newell was then placed on a 30-day

project or “action plan” under Murphy’s direct supervision. Supp. App. 273.

       Around the same time, Newell anonymously contacted the Fair Housing Council

of Suburban Philadelphia and spoke to Megan Bolin. Newell told Bolin that she worked

at an independent living community that was refusing to accept new residents in

wheelchairs or scooters and had a policy of discouraging disabled people from joining the

community. Bolin informed Newell that the practices she described likely violated the

FHA.

       After Newell’s phone call with Bolin, Murphy asked Newell to enter “loss

leads”—explanations regarding why a lead on a potential resident was not pursued—into

Traditions’ computer system, including identifying when a potential resident was deemed

inappropriate due to hygiene or mobility issues. Newell informed Murphy that entering

this information violated the FHA, and she refused to comply. Murphy dismissed this



                                            4
exchange as a typical instance of Newell pushing back on her requests and did not inquire

as to why Newell felt that entering the loss leads would violate the FHA.

       In April 2012, Murphy received a call from a realtor who worked with Traditions’

residents to sell their homes. The realtor told Murphy that she had spoken with Newell

about a particular couple’s house that was about to go on the market, and Newell had

indicated that she felt the price was too low. The realtor also told Murphy that Newell’s

husband, an electrician, had given the couple a quote regarding electrical work to their

home. After hearing this story, Murphy told Nowakowski and David Lovitz, the majority

partner of Heritage Senior Living, that she felt the situation presented a conflict of

interest. Lovitz met with Newell and explained to her that her husband’s financial

involvement with residents was inappropriate, but he found that Newell was “defiant” in

response. Supp. App. 99. Ultimately, however, Newell’s husband did not provide a bid

or do work for the residents.

       In early May 2012, Newell had conversations with Nowakowski regarding the

FHA. Nowakowski asked Newell where she obtained her information regarding the

FHA, and Newell explained that she learned about the FHA from communications with

the Fair Housing Council of Suburban Philadelphia in connection with her previous job.

Nowakowski asked for contact information for the Fair Housing Council, and, on May 8,

2012, Newell emailed Bolin’s contact information to Nowakowski.

       The same day, Newell called Bolin and identified herself and her employer.

Newell indicated that she told Traditions personnel that its policies violated the FHA.



                                              5
Newell told Bolin she believed Traditions was retaliating against her for opposing its

allegedly unlawful conduct.

       Around the same time, Newell once again asked Murphy’s permission to become

a member of the LVAIP board and Murphy agreed. On May 8, 2012, the LVAIP sent out

a newsletter to all members of the organization that included statements from the

nominees for the board. Newell’s statement indicated that she wanted to become a board

member because “[i]t will be challenging in many ways,” and then said that the “[m]ost

challenging part will be trying to convince my employer that this will be time well spent

and more so, great exposure for them.” App. 391. Murphy received the newsletter,

forwarded it to Nowakowski, and indicated that she found Newell’s statement to be

“disrespectful” and “negative PR.” Supp. App. 320. Nowakowski then sent an email to

Lovitz that included Newell’s statement. Lovitz responded that it was a “perfect example

of the problem,” which appears to be a reference to Newell’s attitude issues, and that he

was considering terminating her. Supp. App. 324.

       On May 14, 2012, Nowakowski and Murphy met with Newell and informed her

that her statement on her LVAIP application cast Traditions in a negative light by

implying that Traditions did not value involvement in LVAIP. They further referenced

the conflict of interest issue with Newell’s husband and the LVAIP event where Newell

had openly criticized Murphy. Newell was then sent home. That evening, Newell

contacted Bolin and asked for direction on filing a discrimination claim. The following

day, Newell was fired.



                                            6
       In October 2012, Newell filed a complaint in the United States District Court for

the Eastern District of Pennsylvania, alleging that Defendants retaliated against her in

violation of the FHA. The District Court ultimately granted summary judgment in

Defendants’ favor, concluding that Newell failed to produce sufficient evidence of a

causal link between her termination and protected activity and, even assuming a causal

link existed, had failed to demonstrate that Defendants’ legitimate, non-discriminatory

reasons for terminating her were pretextual. Newell appeals.

                                             II1

                                             A

       The FHA makes it unlawful to “coerce, intimidate, threaten, or interfere with any

person . . . on account of his having aided or encouraged any other person in the exercise

or enjoyment of” rights under the FHA. 42 U.S.C. § 3617. We examine Newell’s FHA

retaliation claim under the burden-shifting framework set forth in McDonnell Douglas

       1
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and
1343(a)(4). We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the
District Court’s grant of summary judgment is plenary. Mylan Inc. v. SmithKline
Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We apply the same standard as the
District Court, viewing facts and making all reasonable inferences in the non-movant’s
favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266-67 (3d Cir. 2005).
Summary judgment is appropriate where “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).
“An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable
jury could find for the non-moving party, and a factual dispute is material only if it might
affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks, 455 F.3d
418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). The moving party is entitled to judgment as a matter of law when the non-
moving party fails to make “a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986).

                                             7
Corp. v. Green, 411 U.S. 792 (1973). See Walker v. City of Lakewood, 272 F.3d 1114,

1128 (9th Cir. 2001). Under this framework, a plaintiff must first establish a prima facie

case of retaliation by showing that “(1) the employee engaged in a protected employee

activity; (2) the employer took an adverse employment action after or contemporaneous

with the employee’s protected activity; and (3) a causal link exists between the

employee’s protected activity and the employer’s adverse action.” Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000) (citations omitted). Once the prima

facie case is established, the burden of production shifts to the employer to articulate a

legitimate, non-discriminatory reason for the adverse employment action. Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citation omitted). “The employer satisfies its

burden of production by introducing evidence which, taken as true, would permit the

conclusion that there was a nondiscriminatory reason for the unfavorable employment

decision.” Id. (citation omitted). Once the employer satisfies this “relatively light”

burden, “the burden of production rebounds to the plaintiff, who must now show by a

preponderance of the evidence that the employer’s explanation is pretextual.” Id. “[T]o

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. at 764 (citations omitted) (emphasis in original). The plaintiff may discredit the

employer’s proffered reasons by demonstrating “such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate

                                              8
reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of

credence,’” and thereby allow a factfinder to conclude that the employer did not act for

the proffered reasons. Id. at 765 (citations and emphasis omitted).

                                              B

       We will assume for the sake of argument that Newell has established a prima facie

case of retaliation. Accordingly, the burden of production shifts to Defendants to come

forward with non-discriminatory reasons for the adverse employment action. Here,

Defendants provided three legitimate, non-discriminatory reasons to justify Newell’s

termination: (1) Newell’s LVAIP board application cast Traditions in a negative light, in

violation of Newell’s core job function to represent Traditions in a positive light; (2)

Newell created a conflict of interest by involving herself and her husband’s electrical

business in a resident’s sale of property; and (3) Newell displayed a poor attitude and a

chronic pattern of insubordination and disrespect for her superiors. These reasons, taken

as true, satisfy Defendants’ burden of production. Therefore, the burden returns to

Newell, and we will now consider whether Newell has come forth with sufficient

evidence to show that all of these reasons were pretextual.

       Newell argues that her comment about Traditions on her LVAIP board application

is an implausible basis for her termination because: (1) she received permission to submit

an application for the LVAIP board; (2) her statement in her application was true because

Murphy lacked enthusiasm about LVAIP; and (3) another employee cast Traditions in a

negative light by telling a prospective resident that she could not live at Traditions

because she used a wheelchair, yet she did not face discipline. Appellant’s Br. 45-46.

                                              9
First, the fact that Newell received permission to file an application for the LVAIP board

is irrelevant because it does not indicate that Defendants would have approved of the

statement Newell made on her application. Second, it is irrelevant whether the negative

statement in Newell’s application was a true statement about Murphy’s attitude toward

LVAIP. Defendants took issue with Newell’s statement not because it was false but

because the statement indicated that Defendants did not believe LVAIP was a valuable

organization. Even assuming Defendants did not value LVAIP, Defendants reasonably

would not want this view shared with other professionals in their industry. Third, the

comparison to her coworker’s statement is unpersuasive. While the statement is

troubling, it was made privately to a potential resident, whereas Newell’s statement was

viewed by the entire membership of LVAIP and publicly embarrassed Defendants.

Therefore, there is no inconsistency between Defendants’ treatment of Newell and her

colleague.

       Because Newell must establish that each of the employer’s proffered reasons was

pretextual, Fuentes, 32 F.3d at 764, and Newell has not established that Traditions’

decision to terminate her based on the statements in her LVAIP application was

pretextual, Newell has failed to carry her burden. Accordingly, the District Court

correctly held that Newell failed to produce sufficient evidence to demonstrate that all of

Defendants’ proffered legitimate, nondiscriminatory reasons for her termination were

pretextual. 2


       2
        Fuentes suggests that a plaintiff may be absolved from discrediting each
legitimate reason if the employer proffers “a bagful of legitimate reasons” and the
                                            10
       Moreover, the record here does not reflect the type of temporal connection

between her comments about FHA compliance and her termination sufficient to infer that

the employer’s proffered legitimate reason for termination was pretextual. See, e.g.,

Farrell, 206 F.3d at 279-81, 286 (noting that temporal proximity can provide a basis to

infer a causal link between the protected activity and the alleged retaliatory act, and

explaining that the evidence applicable to the causation question is often probative at the

pretext stage). Newell started working for Traditions in October 2010, and she testified

that she began mentioning potential FHA violations “very shortly after [she] started.”

Supp. App. 171. Newell was not placed on the 30-day action plan until March 2012 and

was not fired until May 2012, more than a year after she began raising her FHA concerns.

While the record shows that Newell raised her FHA concerns many times, including

providing Nowakowski with information about the Fair Housing Council just days before

she was terminated, the intervening disclosure of her statements about Traditions on her

LVAIP board application interrupts any temporal causal link between her FHA advocacy

and her termination. For this additional reason, Newell has not shown the reason for her

termination was pretextual. 3

                                             III

plaintiff casts doubt on “a fair number of them.” 32 F.3d at 764 n.7. Here, however,
Traditions provided only three reasons for Newell’s termination, one of which we have
explained no reasonable jury could conclude was pretext. The other two reasons, namely
Newell’s alleged poor attitude and insubordination and the conflict of interest issue, were
discussed directly with her as issues arose during her employment. Thus, this case does
not involve the type of “bagful” of post-hoc rationalizations imagined in Fuentes.
        3
          Although the evidence does not establish that Newell was terminated due to her
FHA advocacy, the concerns she raised about Defendants’ alleged practices are, to say
the least, troubling.
                                             11
      For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment for Defendants.




                                           12
