                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ______________

                                       No. 18-3085
                                     ______________


                                 LORRAINE A. GRESS,
                                              Appellant

                                             v.

                      TEMPLE UNIVERSITY HEALTH SYSTEM


                                     ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Civil Action No. 2-13-cv-05414)
                   District Judge: Honorable J. William Ditter, Jr.
                                  ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 28, 2019
                                  ______________

    Before: CHAGARES, GREENAWAY, JR., and GREENBERG, Circuit Judges.

                          (Opinion Filed: September 19, 2019)

                                     ______________

                                        OPINION*
                                     ______________

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

          Appellant Lorraine Gress appeals the District Court’s grant of summary judgment

for Appellee, Temple University Health System (“Temple”). On appeal, Gress argues

that the District Court failed to view facts in a light most favorable to her, the nonmoving

party, and erroneously concluded that genuine disputes of material fact did not exist with

respect to her discrimination claims. For the foregoing reasons, we will affirm the

District Court’s grant of summary judgment on all claims.

                        I.    Factual Background/Procedural History

          Temple hired Gress in 1996 as a medical assistant. In 1998, Gress was promoted

to office manager. In 2007, Gress was promoted to regional manager, and in 2008, she

was promoted to regional director. After fourteen years of employment, in January 2010,

Gress complained to her human resources manager about her supervisor, Renee

Reedman’s behavior. According to Gress, Reedman made racially insensitive comments,

such as calling African-American employees “porch monkeys,” and referred to a lesbian

employee as a “dyke.” App. 3. Additionally, Reedman made comments about Gress’s

weight in front of coworkers, referenced her daughter’s teen pregnancy, and stated that

Gress’s home was stuck in the eighties. Human resources investigated the complaint and

Gress met with Reedman and Dr. Mankin, the CEO of Temple, to discuss and resolve the

issues.

          Shortly thereafter in March of 2010, Gress notified human resources that Reedman
                                              2
had embarrassed her by referring to her daughter’s ex-boyfriend as Gress’s son-in-law.

Despite Gress having lodged these prior complaints, Reedman provided Gress with a

favorable performance review. In March 2011, Gress complained again about Reedman

after Reedman had told another employee, Linda King, that King could not have taken a

position at another location because of the color of her skin and the fact that such a

practice is racist. Human resources investigated the complaint and Reedman apologized

to King. Human resources also held a mediation for Gress and Reedman hoping to

improve their communication with each other. During her deposition, Gress stated that

she believed Reedman treated everyone equally regardless of disability or age.

       Gress went on Family and Medical Leave Act (“FMLA”) leave from May 9, 2011

until August 22, 2011, as she underwent surgery. During this leave, David Reppert, the

controller for Temple, found a cash discrepancy in the northeast location where Linda

King was the office manager. King was responsible for receiving payments from patients

and depositing them in the appropriate Temple account. After an internal investigation

by human resources manager, Brenda Woods, it was confirmed that cash was missing

over a three-year period, totaling $130,000. As the regional director, Gress was King’s

supervisor and ultimately responsible for auditing King’s financial work. Gress’s auditing

of King’s work failed to detect any inconsistent deposits. Following the investigation,

King was terminated.

       When Gress returned to work following FMLA leave, she was interviewed by

Woods and James Frank, the director of internal audit. She admitted that she had allowed
                                              3
office managers, including King, to do two things—select which deposit records would

be audited and not require confirmation faxes of deposits from the northeast branch.

App. 65. Gress was advised that she was being investigated for involvement in the theft.

Although Gress was told not to discuss the investigation with anyone, Gress discussed the

investigation with Reedman and Dr. Mankin. Gress was also advised not to remove any

documents, yet Gress removed King’s original bank reconciliation documents from a

locked cabinet for four days and showed them to Reedman and three regional directors at

an operations meeting where she had discussed the investigation. Gress stated that the

documents showed that King was reconciling and Gress was auditing. App. 165.

       On September 14, 2011, Woods met with Gress and suspended her pending further

investigation. Gress’s employment was then terminated on October 10, 2011 based on

misrepresenting the veracity of fax deposit confirmations from the bank, engaging in

gross neglect of job duties based on her failure to audit, being insubordinate by

discussing the ongoing investigation, and interfering with an ongoing investigation by

removing important financial documents without authorization.

       Following her dismissal, Gress brought claims of discrimination under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621–634; the FMLA, 29

U.S.C. § 2601; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§§ 12101–12213, 47 U.S.C. § 5; and the Pennsylvania Human Relations Act (“PHRA”),

43 Pa. Cons. Stat. § 955(a) and (e). She also brought claims of retaliation under the

FMLA, the PHRA, and Title VII of the Civil Rights Act of 1964 (“Title VII”). The
                                             4
District Court granted summary judgment to Temple on all claims. Appellant timely

appeals only her Title VII, ADEA, and corollary age discrimination and retaliations

claims under the PHRA.

                                      II.    Discussion1

       Gress argues that the District Court erred by not viewing the facts in the light most

favorable to her, the nonmoving party, and failing to conclude that genuine disputes of

material fact exist. This Court exercises plenary review over a District Court’s grant of

summary judgment. Aruajo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d

Cir. 2013). This Court can affirm a grant of summary judgment only if “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). A factual dispute is genuine if the “evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it “might affect

the outcome of the suit under the governing law.” Id. The Court must view the facts and

evidence presented on the motion in the light most favorable to the opposing party. Id. at

255. In attempting to defeat summary judgment, “[s]peculation and conclusory

allegations do not satisfy [the non-moving party’s] duty.” Ridgewood Bd. of Educ. v.

N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).



       1
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. This Court has
jurisdiction over this matter under 28 U.S.C. § 1291. We exercise pendent jurisdiction
over Appellants’ claims arising under the PHRA, pursuant to 28 U.S.C. § 1367.
                                             5
                                  A. Age Discrimination Claim

       Gress argues that she provides enough evidence to overcome summary judgment

with respect to her ADEA and PHRA age discrimination claims.2 The ADEA establishes

that it is unlawful for an employer “to discharge any individual or otherwise discriminate

against any individual with respect to [her] compensation, terms, conditions or privileges

of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1).

       As Gress does not have any direct evidence of age discrimination, she must prove

it through circumstantial evidence. See Smith v. City of Allentown, 589 F.3d 684, 691 (3d

Cir. 2009). Under the burden-shifting framework laid out in McDonnell Douglas Corp.

v. Green, which this Court applies to ADEA claims, Gress must provide enough evidence

to establish a prima facie case of discrimination. 411 U.S. 792, 803 (1973); Smith, 589

F.3d at 689 (3d Cir. 2009). Gress must first show that she “is forty years of age or older.”

Smith, 589 F.3d at 689 (3d Cir. 2009). “[S]econd,” she must show “that the defendant

took an adverse employment action against the plaintiff” and “third, that [she] was

qualified for the position in question.” Id. Finally, Gress must show that she “was

ultimately replaced by another employee who was sufficiently younger to support an

inference of discriminatory animus.” Id. If she satisfies these four prongs, the “burden of

production shifts to the employer to identify a legitimate non-discriminatory reason for

the adverse employment action.” Id. at 690. “If the employer does so, the burden of


       2
       Both the ADEA and the PHRA utilize the same legal standard. Glanzman v.
Metropolitan Management Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004).
                                             6
production returns to [Gress] to demonstrate that the employer’s proffered rationale was a

pretext for age discrimination.” Id.

       The Supreme Court added a gloss to this standard in Gross v. FBL Financial

Services, 557 U.S. 167 (2009), where it observed that “shifting the burden of persuasion

to an age discrimination defendant is improper because the plain language of the ADEA

requires the plaintiff to prove that the defendant took the adverse employment action,

‘because of [the plaintiff’s] age.’” Smith, 589 F.3d at 690 (quoting Gross, 557 U.S. at

176). We reconciled Gross with our jurisprudence in Smith, noting that Gross requires

the plaintiff to “prove that age was the but-for cause of the defendant’s adverse

employment action.” Smith, 589 F.3d at 691 (internal citation omitted). Therefore, we

still follow the McDonnell Douglas framework to analyze ADEA claims with this gloss

in mind, as the burden returns to the plaintiff in the analysis. Id.

       As the District Court noted, Gress established three elements of her prima facie

case: she was 61 years old; she was qualified for her position; and she was terminated.

Assuming arguendo that she established the fourth element, Gress still cannot overcome

Temple’s legitimate non-discriminatory reasons for her termination—her failed audit

supervision resulting in a loss of $130,000, misrepresentations of fax deposit

confirmations, insubordination by refusing to follow confidentiality instructions during

her active investigation, and removing documents without authorization. Any of the

aforementioned reasons by itself could serve as a legitimate ground for removal.


                                              7
       To establish pretext, Gress must provide enough evidence such that a factfinder

could “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 . . . .” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (internal citations and

citations omitted). Gress “must prove not that the illegitimate factor was the sole reason

for the decision, but that the illegitimate factor was a determinative factor in the adverse

employment decision.” Id. In short, “but for the protected characteristic”—here, Gress’s

age—she would not have been fired. Id. Gress does not assert any facts that establish

this or suggest evidence of age discrimination. She argues that the District Court

incorrectly found that she was told not to remove documents or discuss the investigation.

Even so, being the supervisor responsible for the loss of $130,000 is a sufficient ground

for termination when the auditing function was admittedly deficient. Gress does not

point to any other evidence that supports her age discrimination claim. Therefore, the

District Court was correct in finding that Gress does not allege sufficient facts to establish

a prima facie case of age discrimination under either the ADEA or PHRA.

                                       B. Retaliation Claim

       Gress also argues that the District Court erred in deciding that she did not make

out a claim of retaliation under Title VII and the PHRA.3 Under the McDonnell Douglas


       3
         Title VII's anti-retaliation provision forbids an employer from “discriminat[ing]
against any of his employees . . . because he has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [Title
                                              8
burden-shifting framework, a plaintiff asserting a retaliation claim under either Title VII

or the PHRA must first establish a prima facie case by showing (1) she engaged in

protected activity; (2) suffered adverse action by the employer; and (3) there is a causal

connection between the employer’s activity and the employer’s adverse action.

Fogelman v. Mercy Hosp., Inc., 283 F.3d 561, 567–68 (3d Cir. 2002); see also Daniels v.

School Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015). If Gress makes these

showings, “the burden of production of evidence shifts to the employer to present a

legitimate, non-retaliatory reason for having taken the adverse action. Id. “A plaintiff

claiming retaliation under Title VII must show that a reasonable employee would have

found the alleged retaliatory actions ‘materially adverse’ in that they ‘well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination.’”

Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington

Northern & Santa Fe Ty. Co. v. White, 548 U.S. 53, 68 (2006)).

       The first prong of a prima facie retaliation claim can be satisfied by a showing of

complaints to the employer. Moore v. City of Philadelphia, 461 F.3d 331, 341 (3d Cir.

2006). For Gress’s complaints to qualify as protected, she must have held an objectively




VII].” 42 U.S.C. § 2000e–3(a). The PHRA, which we generally interpret consistently
with Title VII, likewise forbids employers from retaliating against employees for
asserting their rights under the PHRA See Fogleman v. Mercy Hosp., 283 F.3d at 567
(“The language of the PHRA is . . . substantially similar to [Title VII and other federal]
anti-retaliation provisions, and we have held that the PHRA is to be interpreted as
identical to federal anti-discrimination laws except where there is something specifically
different . . . .”) (citing Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996)).
                                             9
reasonable, good faith belief that her employer’s activity was unlawful under Title VII.4

She need not prove the merits of the underlying discrimination complaint, but a

reasonable person must be able to conclude that there was unlawful discrimination under

Title VII. Moore, 461 F.3d at 344.

       Although this Court acknowledges “the message being conveyed rather than the

means of conveyance” and takes into account “making complaints to management” in

determining whether Title VII’s opposition clause is triggered, the activity in question

does not rise to level of a Title VII violation. Curay-Cramer v. Ursuline Acad., 450 F.3d

130, 135 (3d Cir. 2006). “Case law has established that opposition to an illegal

employment practice must identify the employer and the practice—if not specifically, at

least by context.” Id. As a preliminary matter, Gress asserts no facts identifying specific

behavior by Reedman that would qualify as unlawful activity. Gress instead makes

conclusory statements about Reedman’s actions, claiming she engaged in racial

harassment and discrimination, gender harassment and discrimination, religious

discrimination, and disability discrimination. Gress’s complaints about Reedman’s

behavior were not about activity she believed to be illegal under Title VII. Here, Gress



       4
         Because the District Court concluded that Gress failed to satisfy the first prong
with respect to her theories of relief, it never addressed the adverse employment action
and causation prongs of her retaliation claims. The prongs are conjunctive, therefore
Gress’s failure to satisfy the first prong causes her claim to fail. Consequently, we do not
address those issues here on appeal in the first instance. Rather, we consider only the
District Court's treatment of the “protected activity” prongs of Gress’s retaliation claims.
Fogleman, 283 F.3d at 568.
                                             10
also fails to complain about disparate treatment based on her sexual orientation, race, or

religion. She never put forth evidence of an illegal employment practice, only asserting

that Reedman demonstrated “racist actions” and “invidious discrimination.” Appellant’s

Br. at 32, 33.5

       As the District Court noted, these statements are rude, but not illegal. App. 17.

As Gress has not put forth sufficient evidence to meet the first prong of a retaliation claim

under Title VII and the PHRA and show she engaged in protected activity, she cannot

make out a prima facie case for retaliation.

                                      III.     Conclusion

       Gress cannot induce this Court to reverse the District Court’s order. The facts

asserted, even when considered in the light most favorable to her are insufficient. She

cannot establish a prima facie case for age discrimination under the ADEA or the PHRA.

She also cannot establish a prima facie case for her retaliation claim under Title VII or

the PHRA. For the above reasons, we will affirm the District Court’s grant of summary

judgment.




       5
        Assuming Reedman told Linda King that she could not be considered for a job
because she was African-American, Gress did not suggest at any point that she thought
Reedman had discriminated against King, or that Reedman was in a hiring position to act
discriminatorily with respect to King’s interest in another location. Regardless, Gress
does not assert a third-party complaint or cause of action. Fogleman, 283 F.3d at 571.
                                               11
