                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 16-3598
                                      _____________

                                    JEAN STERNER,

                                                       Appellant

                                             v.

                     SIEMENS MEDICAL SOLUTIONS USA, INC.

                                     ______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (District Court No. 2:14-cv-06662)
                         District Judge: Hon. Legrome D. Davis
                                    ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    July 11, 2017
                                  ______________

              Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.

                             (Opinion filed: August 29, 2017)

                               _______________________

                                       OPINION*
                                ______________________



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

       Jean Sterner appeals the District Court’s grant of Appellee Siemens Medical

Solutions USA, Inc.’s Motion for Summary Judgment on her age discrimination claim.

We will affirm.1

                                              I

       The Age Discrimination in Employment Act and Pennsylvania Human Relations

Act contain parallel provisions that prohibit age-based intentional discrimination in the

employment context2—claims under the PHRA are accordingly interpreted coextensively

with the ADEA.3 To prevail under the ADEA, a plaintiff must “establish by a

preponderance of the evidence, that age was the ‘but-for’ cause of the adverse

employment action.”4 The plaintiff must present evidence that her age “played a role in

[the employer’s decision-making] process and had a determinative influence on the

outcome.”5

       If a plaintiff relies on circumstantial evidence, the familiar three-part burden-

shifting framework of McDonnell Douglas Corp. v. Green6 applies.7 Under that


1
  We exercise jurisdiction under 28 U.S.C. § 1291 and review de novo the District Court's
order granting Siemens summary judgment. See Willis v. UPMC Children’s Hosp. of
Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015).
2
  Compare 29 U.S.C. § 623(a)(1), with 43 Pa. Stat. and Cons. Stat. Ann. § 955(a) (West
2017).
3
  See Willis, 808 F.3d at 643 (concluding that “the interpretation of the PHRA” is
“identical” to that of the ADEA).
4
  Id. at 644 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)).
5
  Gross, 557 U.S. at 176 (citation omitted).
6
  411 U.S. 792 (1973).
7
  See Willis, 808 F.3d at 644.

                                              2
framework, if a plaintiff first establishes a prima facie case of discrimination, the burden

of production shifts to the employer to articulate a nondiscriminatory basis for its

employment decision.8 The employer can satisfy its burden “by introducing evidence

which, taken as true, would permit the conclusion that there was a nondiscriminatory

reason for the unfavorable employment decision.”9 If the employer satisfies this second

step, the burden shifts to the plaintiff to show that the employer’s proffered legitimate

non-discriminatory reason was pretextual, and discrimination was the real reason for the

adverse employment decision.10 We have instructed as to that third step:

       [T]he plaintiff generally must submit 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) allows the factfinder to infer that discrimination was more
       likely than not a motivating or determinative cause of the adverse
       employment action.11

       Under Fuentes’s first prong, to avoid summary judgment, “the non-moving

plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

actions that a reasonable factfinder could rationally find them ʻunworthy of credence.’”12

To avoid summary judgment under the second route for proving pretext, the plaintiff

must present “evidence with ‘sufficient probative force’ so as to allow the factfinder to



8
  Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
9
  Id.
10
   Id.
11
   Id. at 762.
12
   Id. at 765 (citation omitted).

                                              3
‘conclude by a preponderance of the evidence that age was a motivating or determinative

factor.’”13

       Here, the District Court found that Siemens had articulated legitimate, non-

discriminatory reasons for firing Sterner. These included, inter alia, poor performance

and deficient skills. The District Court therefore determined that Siemens’s summary

judgment motion “turn[ed] on whether a reasonable factfinder could conclude that

[Sterner]’s articulated reasons for firing [her] were in fact pretext for unlawful

discrimination and that [she] would not have been discharged but for her age.”14

       The ultimate question before the District Court was whether the record contained

sufficient evidence to allow “a reasonable jury [to] return a verdict for [Sterner].”15 The

Court answered that question in the negative. It concluded that Sterner had failed to

raise a triable issue of fact as to whether Siemens’s reasons for terminating her were

pretext for discrimination.

                                              II

       Most of Sterner’s arguments on appeal boil down to a reiteration of factual

disputes she marshals in support of her conclusions that her supervisor 1) misjudged her

performance, 2) should have granted her more freedom to acquire new skills required for

her position, and 3) gave instructions to her that were misguided, or that she had good

reason to ignore. Sterner also contends that her supervisor treated younger employees


13
   Willis, 808 F.3d at 645 (citations omitted).
14
   App. 19a.
15
   Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).

                                              4
more favorably and that the District Court ignored the fact that Siemens had a 32 year-old

employment record of positive evaluations and awards.

       However, even “viewing the facts in the light most favorable to [Sterner] and

draw[ing] all reasonable inferences in [her] favor,”16 the relevant issue is whether her

supervisor genuinely harbored the nondiscriminatory concerns cited as grounds for her

termination, or whether those stated grounds were a pretext for unlawful age-based

animus.17 Here, Siemens provided evidence that Sterner was disciplined and ultimately

discharged due to her poor performance and failure to acquire skills needed for her

position. Based on the record before us, we cannot conclude that the reason for her

termination was pretext. Siemens cannot survive summary judgment because there is

insufficient evidence “from which a factfinder could reasonably either (1) disbelieve

[Siemens’s] articulated legitimate reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or determinative cause of [Siemens’s]

action.”18

       We agree with the District Court that nothing in the supervisor’s words or deeds—

even if he mistreated her, prevented her from training, or otherwise falsely accused




16
   S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 256 (3d Cir. 2013).
17
   See Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (considering the pretext
inquiry and finding that plaintiff’s “view of [her] performance is not at issue; what
matters is the perception of the decision maker”), overruled in part on other grounds, St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
18
   Fuentes, 32 F.3d at 764.

                                             5
her19—suggested that her age had any bearing on any of his decisions. Sterner fails to

provide anything other than her own speculation to support her contention that younger

employees were treated more favorably or that the company attorney’s stray remark or

subsequent hiring of a younger employee was probative of discrimination.20

       Sterner maintains that the question of an employer’s discriminatory motive is ill-

suited for summary disposition, and the pretext inquiry, she claims, in fact, examines the

employer’s motive. She cites St. Mary’s Honor Center v. Hicks.21 There, the United

States Supreme Court held that “there is always a question of material fact for the fact

finder, once the plaintiff establishes a prima facie [sic] case and raises genuine issues as

to whether the employer’s proffered reasons for are [sic] pretextual.”22 However, the

issue before the Court was whether a trier of fact’s rejection of an employer's asserted

reasons for its actions requires a finding for the plaintiff.23

       Nothing in the District Court’s able opinion granting Siemens summary judgment

contravenes Hicks. Moreover, we “do not infer from the nature of discrimination suits


19
   We, like the District Court, could adduce little supporting evidence from the record for
most of these allegations.
20
   Sterner averred that a company attorney had said in a September 2012 meeting that
based on her allegations of discrimination, “this is grounds for a lawsuit” Appellant’s Br.
5, 24 (citing App. 3). The District Court determined not only that Sterner had provided
weak evidence that the statement had actually been made, but also that, in any event,
“[t]he statement itself was not a reference to age and did not relate to the decision to
terminate Plaintiff’s employment.” App. 27. Moreover, “one stray suggestion [of a
potential lawsuit basis] . . . [could not] give rise to an inference of discriminatory animus
with respect to the decision to terminate [Sterner’s] position.” Id. We agree.
21
   509 U.S. 502 (1993).
22
   Appellee’s Br. 33.
23
   Hicks, 509 U.S. at 504.

                                                6
that a jury determination is required in every case.”24 Indeed, after Hicks, we reiterated

that, to avoid summary judgment in a “pretext” case, a plaintiff must meet a substantial

evidentiary burden.25

       Sterner also argues that the District Court erred in finding that her Declaration was

a “sham” based on inconsistencies with Sterner’s deposition testimony. In Jiminez v. All

American Rathskeller, Inc.,26 we stated that trial judges could disregard contradictory—or

“sham”—affidavits, which are those that “indicate[] . . . that the affiant cannot maintain a

consistent story or is willing to offer a statement solely for the purpose of defeating

summary judgment.27 We further explained that a sham affidavit “cannot raise a genuine

issue of fact because it is merely a variance from earlier deposition testimony, and

therefore no reasonable jury could rely on it to find for the nonmovant.”28

       Here, the District Court disregarded three Declaration passages that contradicted

Sterner’s prior deposition testimony because she “ha[d] not provided a plausible

explanation for her contradictory statements . . . .”29 On appeal, Sterner still fails to

sufficiently explain the inconsistencies the District Court identified. Instead, she spends

the bulk of the discussion in her Brief to reciting passages from the Declaration. We

conclude that the District Court correctly applied the sham affidavit doctrine, and that it



24
   Billet, 940 F.2d at 828.
25
   See Willis, 808 F.3d at 645; Fuentes, 32 F.3d at 764–65.
26
   503 F.3d 247, 251, 254 (3d Cir. 2007).
27
   Id. at 253.
28
   Id.
29
   App. 2a–3a n.1.

                                               7
did not inappropriately disregard those portions of Sterner’s Declaration that it found

contradicted her deposition testimony.30

                                             III.

         Because the District Court correctly concluded that the record evidence does not

raise a triable issue of fact, we will affirm the judgment.




30
     Jiminez, 503 F.3d at 251, 254.


                                              8
