                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 11-2421
                                  _______________

                                BARRY VASBINDER,
                                              Appellant

                                          v.

              SECRETARY DEPARTMENT OF VETERANS AFFAIRS
                            _______________

                    On Appeal from the United States District Court
                       For the Western District of Pennsylvania
                         (D.C. Civil Action No. 2-09-cv-01239)
                    District Judge: Honorable Donetta W. Ambrose
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 18, 2012
                                 _______________

       Before: AMBRO, VANASKIE and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: July 6, 2012)
                                 _______________

                                     OPINION
                                  _______________

AMBRO, Circuit Judge

      Barry Vasbinder appeals the District Court’s grant of summary judgment to his

employer, Butler Veterans Administration Medical Center (“Butler VA”), in his suit

under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et
seq., alleging discrimination on the basis of age and retaliation. For the reasons that

follow, we will affirm.

                                             I.

       Because we write solely for the parties, we set forth only those facts necessary to

our decision. Vasbinder began working for the Butler VA in December 1990.

Approximately ten years later, he was assigned to the position of Utility Systems

Repairer Operator in the boiler plant. As a boiler plant operator, Vasbinder was

responsible for continuously monitoring the plant’s equipment to prevent malfunctions

that could result in explosions, property damage, interruptions of medical services,

injuries, or fatalities. Vasbinder was later promoted to the position of Utility Systems

Repairer Operator Leader.

       On a Saturday morning in November 2008, Vasbinder was the only person

working in the boiler plant when he began his shift at 7:45 a.m. Calvin Sedgwick, the

Utility Systems Operations Supervisor and Vasbinder’s immediate supervisor, testified

that, when he arrived to the plant at approximately 9:00 a.m., he found Vasbinder

sleeping on the floor of the office, with a pillow, one or two blankets, and an alarm clock

nearby. Vasbinder admits that he told Sedgwick that he was “relaxing,” but denies that

he was sleeping or that he had a pillow and blankets in the office. Sleeping while

responsible for the boiler plant was a serious offense because of the potential

consequences of an equipment malfunction.

       Later that day, Sedgwick prepared a report documenting the incident. The

following Monday, human resources helped Sedgwick prepare a second report about the

                                             2
incident. Jeff Heiger, the Program Manager and Chief Engineer of Facilities

Management, normally would have dealt with Sedgwick’s report, but he was out of town

at the time of the incident. In Heiger’s absence, Daniel Michalek, a supervisor in

Facilities Management and Sedgwick’s immediate supervisor, prepared a report based on

the information Sedgwick provided. After discussing the incident with several

employees and noting the “bad blood” between Vasbinder and Sedgwick, and between

Vasbinder and other boiler plant operators, Michalek concluded that Sedgwick’s account

of the incident was accurate. Sedgwick filed a Request for Disciplinary Action Memo

requesting that Vasbinder be terminated based on the seriousness of the incident.

       Upon his return, Heiger reviewed a packet of information relating to the incident.

Based on the reports of Sedgwick and Michalek, Heiger filed a Removal Letter proposing

that Vasbinder be terminated for sleeping on duty, endangering the safety of the Butler

VA premises through carelessness or negligence, and deliberately failing to or

unreasonably delaying the carrying out of his duties. Vasbinder filed a written response

to the Removal Letter in which he denied sleeping on the job and claimed that Sedgwick

manufactured the controversy because of the strained relationship between the two.

Vasbinder, who was Sedgwick’s supervisor until Sedgwick was promoted, claims that

Sedgwick spoke ill of him to Jim Stockman, Vasbinder’s previous supervisor with whom

Vasbinder also did not get along. Vasbinder contends that Sedgwick’s criticism

influenced Stockman’s decision to transfer a significant part of Vasbinder’s

responsibilities to a younger employee. Vasbinder complained to Human Resources

about Sedgwick’s conduct to no avail. Vasbinder claims that Sedgwick’s dislike of

                                            3
Vasbinder continued even after Sedgwick was promoted to become Vasbinder’s

supervisor.

       Richard Cotter, the Associate Director of the Butler VA, ultimately decided not to

fire Vasbinder. Cotter instead chose to demote Vasbinder from Boiler Plant Operator

Leader to Maintenance Worker, and to replace Vasbinder’s former position with a

similar, but nonsupervisory position. Vasbinder filed an equal employment opportunity

(“EEO”) complaint about his demotion, but failed to win on his claims.

       In October 2009, an opening for the position of Utility Systems Repair Operator

was announced. Four candidates, including Vasbinder, were selected to interview for the

position. The interviews were conducted in November 2009 by a panel chosen by Heiger

and consisting of Michalek and two other supervisors. All candidates were asked the

same questions and the panel members rated the interviews on a numerical scale.

Michalek testified that Vasbinder provided generic answers to interview questions,

whereas Bruce Campbell, another candidate, provided stronger answers that related

specifically to the operation of a boiler plant. Campbell received the highest score from

the panel and was selected as the most qualified candidate for the position. Heiger

ultimately offered the position to Campbell, who is approximately 18 months older than

Vasbinder.

       Vasbinder testified that the Butler VA has an unwritten policy “to get rid of older

employees.” However, when the alleged discrimination occurred, all but one of

Vasbinder’s five coworkers were older than Vasbinder, and even he testified that two of

the older coworkers were treated well. Vasbinder nonetheless alleges that Sedgwick,

                                             4
Heiger, Cotter, and Michalek discriminated against him on the basis of his age.

Vasbinder also accuses Assistant Human Resources Officer Teneal Caw and Butler VA

Director Patricia Nealan of discriminating against him because they played minor roles in

his demotion.

       Vasbinder filed a complaint in the District Court against the Butler VA, alleging

age-based discrimination in his demotion, and retaliation in hiring Campbell instead of

him. The Butler VA moved for summary judgment on the grounds that (1) Vasbinder

failed to establish a prima facie case of age discrimination, and (2) he had not raised an

issue of material fact with respect to the legitimate, non-discriminatory reasons proffered

by the Butler VA for its actions. The District Court agreed and granted summary

judgment to the Butler VA.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction

under 28 U.S.C. § 1291. “We exercise plenary review over summary judgment and we

apply the same standard that the lower court should have applied.” Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). “Summary judgment is appropriate if

there is no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. In making this determination, we must consider the evidence in the record

in the light most favorable to the nonmoving party.” Smith v. City of Allentown, 589 F.3d

684, 689 (3d Cir. 2009) (citations & internal quotation marks omitted); see Fed. R. Civ.

P. 56(a).



                                             5
       Claims arising under the ADEA are analyzed using the burden-shifting framework

of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Smith, 589 F.3d at 691.

Per McDonnell Douglas, the plaintiff bears the initial burden of demonstrating all of the

elements of a prima facie case of discrimination or retaliation. Id. If the plaintiff

succeeds, the burden of production shifts to the defendant to introduce evidence of a

legitimate, non-discriminatory reason for the adverse employment action. Id. Once the

defendant meets this burden, the burden shifts back to the plaintiff to demonstrate that the

defendant’s stated justification is pretext for age-based discrimination. Id.

Age Discrimination

       To establish a prima facie case of age discrimination under the ADEA, Vasbinder

must demonstrate (1) that he is forty years of age or older; (2) that the Butler VA took an

adverse employment action against him; (3) that he was qualified for the position in

question; and (4) that the adverse employment action occurred under circumstances

giving rise to an inference of discrimination. See id. at 689; Pivirotto v. Innovative Sys.,

Inc., 191 F.3d 344, 356-57 (3d Cir. 1999). Butler VA claims to be entitled to summary

judgment because Vasbinder failed to satisfy the fourth element of a prima facie case.

       Vasbinder’s sparse evidence of discriminatory animus cannot support an inference

of age-based discrimination. His only evidence of discriminatory animus is a comment

by Sedgwick that he was eager for several older employees to retire. Vasbinder admits

that Sedgwick’s comment is merely a “stray remark,” but he argues that it reveals a

hostility motivating many of the adverse employment actions taken against him.

Vasbinder’s contention, however, is unsupported by the record. Cf. Anton v. Perry, 82

                                              6
F.3d 1291, 1301-02 (3d Cir. 1996) (finding that the frequent use of employee’s degrading

nickname, along with evidence of its effect on the employee, constituted “much more

than a mere stray remark” and provided evidence of discrimination).

       Vasbinder relies on evidence that Sedgwick’s account of the November 2008

incident was unreliable, but such evidence, if true, does not prove that the actual reason

underlying the demotion was Vasbinder’s age. Even if Vasbinder can demonstrate that

the decision to demote him resulted from an inadequate investigation into the November

2008 incident or an overreliance on Sedgwick’s account of the incident, he bears the

burden of producing evidence that age-based discrimination underlay the decision. See

Staub v. Proctor Hospital, 131 S.Ct. 1186, 1193-94 (2011). Yet Vasbinder fails to

demonstrate that his age was an “unstated factor” in Butler VA’s decision to demote him.

       Moreover, even if Vasbinder could establish a prima facie case of discrimination,

he cannot demonstrate that the Butler VA’s stated justification for his demotion – the

November 2008 incident – was pretext for age-based discrimination. Vasbinder’s claim

can only survive summary judgment if he introduces evidence from which a factfinder

could reasonably “(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.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d

Cir. 1994).

       Apart from conclusory statements that he suffered age-based discrimination,

Vasbinder failed to introduce any evidence to satisfy the “difficult burden” of

demonstrating pretext. Id. He cites alleged “weaknesses, implausibilities,

                                             7
inconsistencies, incoherencies . . . [and] contradictions” in Sedgwick’s account of the

November 2008 incident to argue that the Butler VA’s stated justification is pretext. Id.

But his reliance on these alleged inaccuracies is misguided because he must show that

discriminatory animus motivated the adverse employment action, not that the demotion

was merely “wrong or mistaken.” Id. Indeed, even if Vasbinder could show that the

November 2008 incident was pretext for his demotion, the evidence indicates that the

“bad blood” between Vasbinder and Sedgwick is a far more likely reason for the adverse

employment action than age-based discrimination.

Retaliation

       Vasbinder similarly failed to demonstrate that the Butler VA’s stated reason for

hiring Campbell was pretext for retaliation against Vasbinder on account of his EEO

activity. His sole evidence of pretext for his retaliation claim is (1) that Michalek served

on the interview panel when he was allegedly biased against Vasbinder because of his

EEO complaints, and (2) that his work experience made it “implausible” that Campbell

gave better answers to the interview questions than Vasbinder. The record gives no

indication that Heiger put Michalek on the panel in retaliation for Vasbinder’s EEO

complaints or that Michalek was in fact biased against Vasbinder. Vasbinder’s argument

fails to consider that each of the interviewers ranked Campbell as a better candidate than

Vasbinder for the position. All three panelists testified that they had no knowledge of

Vasbinder’s EEO activity at the time of the interview and Vasbinder has introduced no

evidence to contradict them. Vasbinder’s mere incredulity that another candidate could



                                              8
outperform him in an interview does not support his claim that the Butler VA’s

justification is pretext.

                                    *   *   *   *   *

       For these reasons, we will affirm the District Court’s grant of summary judgment

to the Butler VA.




                                            9
