                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 18-1117
                                   ________________

                                   MICHAEL ORTIZ,

                                                        Appellant

                                             v.

                               CEDAR CREST COLLEGE

                                   ________________

                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 5-16-cv-06703)
                     District Judge: Honorable Joseph F. Leeson, Jr.
                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    March 7, 2019

           Before: AMBRO, RESTREPO, and GREENBERG, Circuit Judges

                             (Opinion filed March 12, 2019)

                                   ________________

                                       OPINION*
                                   ________________

AMBRO, 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.
         Michael Ortiz served as the Network Administrator for Cedar Crest College from

2005 until 2016, when the College terminated his employment. It purported to terminate

his employment because he did not maintain a reliable data backup scheme, which was

an essential duty of his job. That failure came to light in July 2016 when its main

computer server crashed, resulting in the loss of more than six weeks of data. Based on

its post-crash investigation, the College determined that Ortiz’s failure to monitor hard

drives and maintain a reliable backup scheme was the cause of the server crash and data

loss. In light of these events, the College’s Provost, Dr. Elizabeth Meade, terminated

Ortiz’s employment for “failure to fulfill the expectations of [his] position.”

         Ortiz contends the College unlawfully terminated his employment based on his

age and national origin. He asserts a claim of national-origin discrimination under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and a claim of age

discrimination under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634.

The District Court granted summary judgment in favor of the College on both claims.

We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s grant of

summary judgment de novo. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir.

2018).

         We analyze Ortiz’s claims under the three-step framework from McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Burton v. Teleflex Inc., 707 F.3d 417,

425–26 (3d Cir. 2013). Under that framework, the plaintiff first “bears the burden of

making out a prima facie case of discrimination.” Id. at 426. If that case is made, “the

‘burden then must shift to the employer to articulate some legitimate, nondiscriminatory

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reason’ for the adverse employment action.” Castleberry v. STI Grp., 863 F.3d 259, 263

(3d Cir. 2017) (quoting McDonnell Douglas, 411 U.S. at 802). If that occurs, “the

plaintiff bears the burden of establishing that the employer’s stated reason for the adverse

action was an excuse, or pretext, for why the action was actually taken.” Id.

       In granting summary judgment to the College, the District Court concluded that

Ortiz failed to establish a prima facie case for either age or national-origin discrimination.

It also concluded that, irrespective whether he made the prima facie case, he failed to

show the College’s stated reason for terminating him was pretextual.

       We need address only the second ground on which the Court granted summary

judgment: pretext. To show it, “the plaintiff must point to some 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 motivating or determinative cause of the

employer’s action.” Burton, 707 F.3d at 427 (quoting Fuentes v. Perskie, 32 F.3d 759,

764 (3d Cir. 1994)). To establish pretext by discrediting the employer’s stated reason,

the plaintiff must show “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action [such] that a

reasonable factfinder could rationally find them ‘unworthy of credence.’” Fuentes, 32

F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d

Cir. 1992)) (emphasis in original). To establish pretext without discrediting the

employer’s stated reason, the plaintiff must point to sufficient evidence that,

notwithstanding the employer’s stated reason for the adverse action, “an invidious

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discriminatory reason” actually caused the action. See Burton, 707 F.3d at 427. The

failure to raise a triable issue on pretext would defeat both of Ortiz’s claims. See id.

       The evidence Ortiz submitted was insufficient to show pretext. It contains no

evidence to discredit the College’s stated reason for terminating him. To the contrary,

that reason is fully supported by the record. As the College’s Network Administrator,

Ortiz’s “essential” duties included “maintaining routine backups” and “[m]aintaining a

redundant backup scheme ensuring the ability to restore in the event of system failure.”

Yet, in June and July 2016, Ortiz had established neither an automated nor a manual

system for confirming hard-drive status. He instead relied on visual inspections of the

server’s status lights, which proved inadequate to detect hard-drive failures and ensure

the ability to restore data after those failures. Indeed, although a physical hard drive and

the nightly backup process both failed in June 2016, it was not until the following

month—when a second hard drive failed, crashing the College’s main computer system

and causing more than six weeks’ loss of data—that Ortiz detected a problem. Through

an investigation, the College determined the data loss was caused by the inadequacies of

Ortiz’s backup scheme. It terminated his employment as a result, and Ortiz does not

point to any evidence discrediting that explanation.

       In an effort to shift blame to the College, Ortiz contends it set him up for failure by

denying his requests for further training and new equipment. But he does not submit any

evidence to suggest it denied that training or new equipment for discriminatory reasons.

In fact, Ortiz concedes that the College denied similar budget requests made by his

colleague for many years. He also concedes its denial of his budget requests were

                                              4
consistent with its practice of denying such requests over the years of his employment.

At most, Ortiz has shown the College was partially to blame for the server crash and

resulting data loss. But he has not established any “weaknesses, implausibilities,

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

reasons” such that a reasonable factfinder could find pretext. Fuentes, 32 F.3d at 765.

       At bottom, Ortiz rests his entire age-discrimination claim on a second-hand

account that Dr. Meade once called him “old and antiquated” about 10 months before

firing him. And he rests his national-origin discrimination claim entirely on comments

made by a former supervisor who was not involved in the decision to terminate him;

indeed, she was not even employed with the College when he was fired. In other

circumstances, comments like these may very well get a discrimination plaintiff to trial.

But they cannot bear the weight Ortiz tries to place on them in this case. The evidentiary

record overwhelmingly supports the College’s stated reason for terminating Ortiz: he

failed an essential duty of his job by not maintaining a reliable data backup scheme,

resulting in the permanent loss of important data at the College.

       On this record, no reasonable jury could find the College’s stated reason for

terminating Ortiz was pretextual. We therefore affirm the District Court’s grant of

summary judgment.




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