NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 22-2785 _____________
TRACIE GARDNER, Appellant
v.
ULTA SALON COSMETICS AND FRAGRANCE INC _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cv-03422) District Judge: Honorable Gerald A. McHugh _____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 19, 2024 _____________
Before: HARDIMAN, MATEY, and PHIPPS, Circuit Judges.
(Filed: March 14, 2024) _____________
OPINION * _____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Tracie Gardner claims that her employer Ulta Salon Cosmetics and Fragrance Inc
(“Ulta”) terminated her due to her disability and age. But she sets forth no genuine
dispute that her termination turned on these characteristics rather than her knowing
violation of company policy. So we will affirm the District Court’s decision to grant
summary judgment to Ulta.
I.
Gardner began working as a Prestige Sales Manager at Ulta’s Newton Square,
Pennsylvania store when she was fifty-three years old. In February 2020, Gardner, age
fifty-seven, signed a statement admitting to distributing to herself and others
complimentary products from brand partners known as “gratis.” The statement
acknowledges that doing so violated Ulta’s policy permitting only the General Manager,
or an authorized employee, to distribute gratis to employees. Gardner disputes that policy
and says Ulta employees had a practice of distributing gratis without approval.
On February 12, 2020, Gardner requested a leave of absence to begin on March 1,
2020, citing depression and anxiety. Ulta terminated Gardner’s employment six days later
following an investigation relating to the distributed gratis. A younger, non-disabled
employee Vanessa Jones received a final written warning and was not terminated for
violating the gratis policy by accepting gratis from Gardner. Jones did not know that her
conduct violated the policy because she did not know that Gardner was not authorized to
distribute gratis.
2 The District Court concluded that Gardner had not established a prima facie case
for disability or age discrimination and found that any nondiscriminatory basis for her
termination was not pretextual. The court granted summary judgment to Ulta, and
Gardner now appeals. 1
II.
Gardner’s disability and age discrimination claims are analyzed under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667–68 (3d Cir. 1999) (disability
discrimination); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en
banc) (age discrimination). Under the McDonnell Douglas framework, the employee first
bears the burden of production and must demonstrate a prima facie case of disability and
age discrimination. See Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
To demonstrate a prima facie case of disability discrimination, the employee must
show that 1) she is “a disabled person within the meaning of” the Americans with
Disabilities Act (ADA); 2) she is “otherwise qualified to perform the essential functions
of the job, with or without reasonable accommodations by the employer”; and 3) she “has
suffered an otherwise adverse employment decision as a result of discrimination.” Gaul v.
Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998). An age discrimination claim under
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s decision to grant summary judgment is plenary, Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009), and summary judgment is appropriate “if the movant shows that 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).
3 the Age Discrimination in Employment Act (ADEA) requires that the employee show
that 1) she is “at least forty years old”; 2) she “suffered an adverse employment
decision”; 3) she was “qualified for the position in question”; and 4) she was “ultimately
replaced by another employee who was sufficiently younger so as to support an inference
of a discriminatory motive.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d
638, 644 (3d Cir. 2015). “Where the [employee] is not directly replaced, the fourth
element is satisfied if the [employee] can provide facts which ‘if otherwise unexplained,
are more likely than not based on the consideration of impermissible factors.’” Id.
(quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)).
If the employee satisfies these elements, the burden of production then “shifts to
the employer to identify a legitimate non-discriminatory reason for the adverse
employment action.” Smith, 589 F.3d at 690. And if the employer identifies such a
reason, “the burden of production returns to the [employee] to demonstrate that the
employer’s proffered rationale was a pretext” for disability or age discrimination. Id.
A.
Gardner has set forth no genuine dispute that her termination was motivated by
any disability. 2 In particular, there is no evidence that the employees who recommended
and approved Gardner’s termination knew of her disability, 3 so no inference of
2 The District Court assumed—which Ulta does not concede—that Gardner was disabled at the time of her termination. But it is undisputed that she was qualified to perform the essential functions of her position. 3 Gardner maintains that the District Court should have considered her declaration in its summary judgment decision because it did not contradict her prior testimony. But even if Oswald knew of Gardner’s alleged disability, as Gardner suggested in her
4 discrimination arises from Gardner’s termination six days after her request for a leave of
absence due to her alleged disability. See Jones v. United Parcel Serv., 214 F.3d 402, 406
(3d Cir. 2000) (“It is, of course, an axiom of any ADA claim that the plaintiff be disabled
and that the employer be aware of the disability.”); Rinehimer v.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________
No. 22-2785 _____________
TRACIE GARDNER, Appellant
v.
ULTA SALON COSMETICS AND FRAGRANCE INC _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cv-03422) District Judge: Honorable Gerald A. McHugh _____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 19, 2024 _____________
Before: HARDIMAN, MATEY, and PHIPPS, Circuit Judges.
(Filed: March 14, 2024) _____________
OPINION * _____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. MATEY, Circuit Judge.
Tracie Gardner claims that her employer Ulta Salon Cosmetics and Fragrance Inc
(“Ulta”) terminated her due to her disability and age. But she sets forth no genuine
dispute that her termination turned on these characteristics rather than her knowing
violation of company policy. So we will affirm the District Court’s decision to grant
summary judgment to Ulta.
I.
Gardner began working as a Prestige Sales Manager at Ulta’s Newton Square,
Pennsylvania store when she was fifty-three years old. In February 2020, Gardner, age
fifty-seven, signed a statement admitting to distributing to herself and others
complimentary products from brand partners known as “gratis.” The statement
acknowledges that doing so violated Ulta’s policy permitting only the General Manager,
or an authorized employee, to distribute gratis to employees. Gardner disputes that policy
and says Ulta employees had a practice of distributing gratis without approval.
On February 12, 2020, Gardner requested a leave of absence to begin on March 1,
2020, citing depression and anxiety. Ulta terminated Gardner’s employment six days later
following an investigation relating to the distributed gratis. A younger, non-disabled
employee Vanessa Jones received a final written warning and was not terminated for
violating the gratis policy by accepting gratis from Gardner. Jones did not know that her
conduct violated the policy because she did not know that Gardner was not authorized to
distribute gratis.
2 The District Court concluded that Gardner had not established a prima facie case
for disability or age discrimination and found that any nondiscriminatory basis for her
termination was not pretextual. The court granted summary judgment to Ulta, and
Gardner now appeals. 1
II.
Gardner’s disability and age discrimination claims are analyzed under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667–68 (3d Cir. 1999) (disability
discrimination); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en
banc) (age discrimination). Under the McDonnell Douglas framework, the employee first
bears the burden of production and must demonstrate a prima facie case of disability and
age discrimination. See Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
To demonstrate a prima facie case of disability discrimination, the employee must
show that 1) she is “a disabled person within the meaning of” the Americans with
Disabilities Act (ADA); 2) she is “otherwise qualified to perform the essential functions
of the job, with or without reasonable accommodations by the employer”; and 3) she “has
suffered an otherwise adverse employment decision as a result of discrimination.” Gaul v.
Lucent Techs. Inc., 134 F.3d 576, 580 (3d Cir. 1998). An age discrimination claim under
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s decision to grant summary judgment is plenary, Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009), and summary judgment is appropriate “if the movant shows that 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).
3 the Age Discrimination in Employment Act (ADEA) requires that the employee show
that 1) she is “at least forty years old”; 2) she “suffered an adverse employment
decision”; 3) she was “qualified for the position in question”; and 4) she was “ultimately
replaced by another employee who was sufficiently younger so as to support an inference
of a discriminatory motive.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d
638, 644 (3d Cir. 2015). “Where the [employee] is not directly replaced, the fourth
element is satisfied if the [employee] can provide facts which ‘if otherwise unexplained,
are more likely than not based on the consideration of impermissible factors.’” Id.
(quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)).
If the employee satisfies these elements, the burden of production then “shifts to
the employer to identify a legitimate non-discriminatory reason for the adverse
employment action.” Smith, 589 F.3d at 690. And if the employer identifies such a
reason, “the burden of production returns to the [employee] to demonstrate that the
employer’s proffered rationale was a pretext” for disability or age discrimination. Id.
A.
Gardner has set forth no genuine dispute that her termination was motivated by
any disability. 2 In particular, there is no evidence that the employees who recommended
and approved Gardner’s termination knew of her disability, 3 so no inference of
2 The District Court assumed—which Ulta does not concede—that Gardner was disabled at the time of her termination. But it is undisputed that she was qualified to perform the essential functions of her position. 3 Gardner maintains that the District Court should have considered her declaration in its summary judgment decision because it did not contradict her prior testimony. But even if Oswald knew of Gardner’s alleged disability, as Gardner suggested in her
4 discrimination arises from Gardner’s termination six days after her request for a leave of
absence due to her alleged disability. See Jones v. United Parcel Serv., 214 F.3d 402, 406
(3d Cir. 2000) (“It is, of course, an axiom of any ADA claim that the plaintiff be disabled
and that the employer be aware of the disability.”); Rinehimer v. Cemcolift, Inc., 292 F.3d
375, 380 (3d Cir. 2002) (“[T]o establish discrimination because of a disability, an
employer must know of the disability.”). 4 So she has not demonstrated a prima facie case
for disability discrimination.
Even if she had, Gardner has not shown that Ulta’s reason for terminating her was
pretextual. Jones was not “similarly situated” so Ulta’s decisions concerning Jones does
not support an inference of discrimination. See Fuentes v. Perskie, 32 F.3d 759, 765 (3d
Cir. 1994). Jones testified that she did not know that Gardner was not authorized to
distribute gratis, so her conduct was not a knowing violation of Ulta policy. The District
Court did not err in granting summary judgment on this claim.
B.
As for age discrimination, Gardner has not shown that she was “ultimately
replaced by another employee who was sufficiently younger so as to support an inference
of a discriminatory motive,” nor other evidence supporting such an inference. 5 Willis, 808
declaration, Oswald was not involved in making the decision to terminate Gardner, so whether she knew about any disability is immaterial. 4 And any knowledge of the third-party company that Ulta used to administrate leave requests is not imputed to any employee who made the decision to terminate Gardner. See Olson v. Gen. Elec. Astrospace, 101 F.3d 947, 954 (3d Cir. 1996). 5 The other elements of the prima facie case are met: 1) Gardner was fifty-seven years old when she violated Ulta’s policy and was terminated; 2) her employment with
5 F.3d at 644. Gardner has not demonstrated a genuine dispute that Jones and other
employees under forty years of age received different treatment so as to suggest a
discriminatory motive. Gardner argues that Oswald had offered Gardner’s position to two
employees under forty years of age before Gardner was terminated. But Gardner relies on
conjecture and speculation, testifying that she did not know who told her about one
employee and that the other employee “alluded to something like that,” but Gardner
could not remember the details. App. 171. Although “we view the facts in the light most
favorable to the nonmoving party, conjecture and speculation will not create a genuine
issue of material fact sufficient to withstand the grant of summary judgment.” Wiest v.
Tyco Elecs. Corp., 812 F.3d 319, 328 (3d Cir. 2016). Gardner’s testimony is simply too
speculative. 6
Ulta was terminated; and 3) it is undisputed that she was qualified for her position as a Prestige Sales Manager. 6 Gardner’s remaining arguments support no inference that any Ulta employee discriminated against her based on her age. Gardner first contends that the record includes disputes of fact concerning whether Gardner violated Ulta’s gratis policy, but Gardner admitted that she distributed the gratis, an Ulta employee’s testimony that the surveillance footage did not show Gardner putting the gratis into bags for distribution does not create a genuine dispute that she distributed the gratis, and she sets forth no evidence that she was unaware that distributing the gratis violated Ulta’s gratis policy, even if, as she claims, she was “not in a good mental state” when she admitted that she distributed the gratis. Opening Br. 20. Gardner next argues that Ulta had “in effect lulled [her] into believing that it did not strictly enforce the gratis policy,” Opening Br. 20, but Gardner has not shown what Ulta did to “lull[]” her into this belief and offers no evidence that any “strict[] enforce[ment]” of the policy was motivated by her age. And her arguments that there was no General Manager assigned to the store when Gardner distributed the gratis and that Gardner “simply followed the practice she had done many times before” is unavailing. Opening Br. 20. Violating a company policy—even if done previously without termination—is a valid, nondiscriminatory basis for terminating employment.
6 Even if she had established a prima facie case of age discrimination, Gardner has
not shown that Ulta’s reason for terminating her—knowingly violating company policy—
was pretextual. See Fuentes, 32 F.3d at 765. Gardner and Jones engaged in different
conduct with different knowledge of Ulta policy. Gardner has not demonstrated a prima
facie case of age discrimination, nor a genuine dispute that Ulta’s reason for terminating
her was pretextual.
***
For these reasons, we will affirm the District Court’s decision.