                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-4645
                                    ____________

                           MICHAEL T. D'ALESSANDRO,
                                       Appellant

                                           v.

                                 CITY OF NEWARK

                                    _____________

                    On Appeal from the United States District Court
                           For the District of New Jersey
                               (D.C. No. 08-cv-01886)
                         District Judge: Hon. Peter Sheridan

                     Submitted Under Third Circuit L.A.R. 34.1(a),
                                 November 15, 2011

      BEFORE: FUENTES, CHAGARES, Circuit Judges and RESTANI, * Judge

                         (Opinion Filed: December 13, 2011)
                                   _____________

                              OPINION OF THE COURT
                                   _____________




      *
              Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
                                           1
FUENTES, Circuit Judge.

              Appellant Michael D’Alessandro appeals from the District Court’s order

       granting summary judgment in favor of his former employer, the City of Newark,

       on his federal and state claims for gender and age discrimination. We will affirm.

                                                 I.

       As we write solely for the parties, we discuss only those facts necessary to our

decision.

       D’Alessandro was employed as an attorney in the City’s Law Department from

2001 through 2006. He was over forty years old when he was hired. During his five

years employed by the City, D’Alessandro was counseled repeatedly for his deficient

performance. While employed by the Civil Litigation Section, Assistant Corporation

Counsel Pidgeon, an approximately 60 year old male, wrote numerous memoranda

detailing incidents of D’Alessandro’s deficient performance. In 2002, at Pidgeon’s

request, he was transferred to the Municipal Prosecutor’s Office, then headed by Albert

Mrozik, an almost fifty year old male. In his four years there, his supervisors wrote

multiple memoranda detailing his poor performance or and his violations of City policy.

For example, on one occasion D’Alessandro was discovered to be practicing law

privately, which is forbidden by City policy. The last such memorandum was written

only a few months before he was terminated.

       In September 2006, D’Alessandro was terminated. At his termination meeting he

was informed that he was terminated because the City “wanted to go in a different

                                             2
direction.” Around the same time, another attorney, a black female over the age of 40,

was also terminated. Later in 2006, five new attorneys were hired: one male and four

females, one being over the age of 40. In 2007, the City hired eight male attorneys and

nine female attorneys, with at least 3 of these attorneys over the age of 40. After
                                                                                     2
exhausting his administrative remedies, D’Alessandro filed suit in district court.       In his

suit, he alleged gender discrimination in violation of Title VII of the Civil Rights Act, 42

U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in

Employment Act, 29 U.S.C. § 621 et seq., and age and gender discrimination in violation

of New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq.

                                                 II.

       The same standard applies to D’Alessandro’s state and federal gender and age

discrimination claims. Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)

(federal age discrimination); Jakimas v. Hoffman-La Roche, Inc., 485 F.3d 770, 788 (3d

Cir. 2007) (New Jersey law); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d

1061, 1065-66 (3d Cir. 1996) (en banc) (federal gender discrimination). As he offers no

evidence of direct discrimination, his claims are analyzed under the McDonell-Douglas

burden shifting analysis. Smith, 589 F.3d at 689. D’Alessandro bears the initial burden


2
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and
we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over a
grant of summary judgment. Summary judgment is appropriate where “there is no
genuine issue as to any material fact” and thus “the moving party is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c). A dispute of material fact is a genuine issue
when there is evidence sufficient to support a reasonable jury returning a verdict in favor
of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We
view the record in the light most favorable to D’Alessandro—the nonmoving party. Id.
                                             3
of demonstrating a prima facie case of unlawful discrimination. Fuentes v. Perskie, 32

F.3d 759, 763 (3d Cir. 1994). Then, the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its decision. Id. Finally, the burden

of production returns to D’Alessandro to show by a preponderance of the evidence that

this rationale is pretextual by submitting evidence which “(1) casts sufficient doubt upon

each of the legitimate reasons proffered by the defendant so that a factfinder could

reasonably conclude that each reason was a fabrication; or (2) allow the factfinder to infer

that discrimination was more likely than not a motivating or determinative cause of the

adverse employment action.” Id. at 762. D’Alessandro must do more than demonstrate

that the City made a wrong or mistaken decision, rather he must show “weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s

explanation that allow a reasonable factfinder to believe that the employer did not truly

act for the asserted reason. Id. at 765.

       Even if D’Alessandro were able to satisfy his prima facie burden, the City has

articulated a legitimate, nondiscriminatory reason for his termination. It is undisputed

that for his entire tenure with the City there were significant problems with his

performance. Such a long history of poor performance satisfies the City’s burden.

       D’Alessandro presents no evidence that could lead a reasonable factfinder to

conclude that these reasons were pretextual. He does not contend that the asserted

instances of poor performance were fabrications. Rather, his sole evidence is that the

City told him at his termination meeting that it was “going in a different direction” and it

also terminated another employee who was over forty and African American, but female,

                                             4
which on its face cuts against finding the City terminated him because of his gender.

D’Alessandro argues that the City’s proffered reason for terminating his employment

differs from the reason it provided him at the meeting in which he was discharged. But

the City’s vague statement that it is changing direction is not inconsistent with its desire

to move away from employees with the deficits exhibited by D’Alessandro. 3 Nor does

D’Alessandro dispute the truth of his documented performance deficiencies. Ultimately,

his evidence is insufficient to discredit the City’s justification for his termination or

demonstrate that discriminatory animus was more likely than not a motivating factor in

the City’s decision. As D’Alessandro failed to rebut the City’s legitimate,

nondiscriminatory rationale for its termination of D’Alessandro, the District Court

properly granted summary judgment in the City’s favor.

                                              III.

       The order of the District Court will be affirmed.




       3
              D’Alessandro’s reliance on this Court’s decision in Abramson v. William
Paterson Coll. of N.J., 260 F.3d 265, 284 (3d Cir. 2001) is misplaced. There, the college
gave no less than five separate unrelated and inconsistent reasons for its termination
decision. Id. at 282-83. The reason changed multiple times prior to Abramson’s
termination, then continued to change throughout the course of the litigation. See id.
                                               5
