Mary Burton v. Teleflex Inc

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3752

_____________

MARY BURTON,

Appellant

v.

TELEFLEX INCORPORATED; TELEFLEX MEDICAL

INCORPORATED; SPECIALIZED MEDICAL DEVICES,

LLC; EDWARD BOARINI; SEAN O‟NEILL

______________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

(D.C. Civil No. 5:09-cv-2684)

District Judge: Honorable Edmund V. Ludwig

______________

Argued September 20, 2012

______________

1

Before: AMBRO, GREENAWAY, JR., and O‟MALLEY,*

Circuit Judges.

(Opinion Filed: February 20, 2013)

Nina B. Shapiro, Esq. (Argued)

53 North Duke Street

Suite 201

Lancaster, PA 17602

Counsel for Appellant Mary Burton

David S. Fryman, Esq. (Argued)

Alexandra Bak-Boychuk, Esq.

Ballard Spahr

1735 Market Street

51st Floor

Philadelphia, PA 19103

Counsel for Appellees Teleflex, Inc., Teleflex Medical

Inc., Specialized Medical Devices LLC, Edward

Boarini, Sean O’Neill

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

*

Honorable Kathleen M. O‟Malley, United States Court of

Appeals for the Federal Circuit, sitting by designation.

2

Appellant Mary Burton (“Burton”) alleges that her

employer, Teleflex Inc. (“Teleflex”),1 terminated her

employment in violation of the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621 et seq., and Title

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §

2000e et seq. Burton also alleges various state law

discrimination, contract, and tort claims against Teleflex.

Teleflex claims that it did not terminate Burton‟s

employment, but that she in fact resigned her position. The

United States District Court for the Eastern District of

Pennsylvania granted summary judgment in favor of Teleflex

on Burton‟s discrimination claims, finding that Burton had

resigned, and that even if she had not, she could not

demonstrate that Teleflex‟s purported justification for sending

her the letter “accept[ing her] resignation” was pretextual.

The District Court also granted summary judgment to

Teleflex on all of Burton‟s state law claims. Because the

record clearly demonstrates that a dispute of material fact

exists as to whether Burton resigned or was terminated, we

vacate the District Court‟s grant of summary judgment on

Burton‟s discrimination claims and breach of contract claim.

We affirm the grant of summary judgment on Burton‟s claims

for breach of the covenant of good faith and fair dealing,

1

Unless otherwise specified, our reference to Teleflex

throughout the opinion is a collective reference to all five

Defendants in this case, including Teleflex Inc., Teleflex

Medical Inc., Specialized Medical Devices LLC (collectively,

the “Corporate Defendants”), Edward Boarini, and Sean

O‟Neill.

3

wrongful interference with contractual relations, and

defamation.

I. BACKGROUND

Burton was the founder of two companies that

manufactured and distributed medical device parts. She

founded HDJ during the 1960‟s and formed Specialized

Medical Devices (“SMD”) in 1993. Burton served as the

companies‟ President, and her son Edward Burton

(“Edward”) was the General Manager and Vice President. By

2006, the companies grew to employ approximately 140

people and generated an annual revenue of $14 million. In

2007, Burton sold HDJ and SMD to Teleflex Inc. After

acquiring the companies, Teleflex discontinued the HDJ

division and incorporated SMD into the Teleflex Medical

OEM business.

As part of the transaction, Burton and Edward each

entered into a separate two-year long employment agreement

with Teleflex. Burton‟s employment agreement (the

“Employment Agreement” or “Agreement”) provided that she

could terminate her employment with Teleflex by providing

written notice at least thirty days before her termination

would become effective. This is the only provision regarding

Burton‟s authority to terminate the Agreement. On the other

hand, Teleflex could terminate Burton in one of two ways.

First, it could fire Burton without cause by providing written

notice at least thirty days before her termination would

become effective. Second, Teleflex could fire Burton for

cause, upon written notice.2 Under the Employment

2

The Employment Agreement defines “cause” as (1) the

failure to perform an obligation under the agreement, after

4

Agreement, Burton would be entitled to severance if Teleflex

terminated her without cause.

Burton, age sixty-seven at the time of the sale, became

Vice President of New Business Development at SMD. Her

duties included directing and supervising the sales department

at SMD, overseeing the customer service of existing

accounts, developing new business, and preparing price

quotations for customers. Burton had performed these same

duties at SMD prior to the sale to Teleflex.

From the fall of 2007 until the end of her employment

with Teleflex, Burton was supervised by Edward Boarini

(“Boarini”), Senior Vice President and General Manager of

Teleflex Medical OEM. Burton and Boarini had a strained

professional relationship, and communication between the

two was infrequent.3 As Vice President of New Business

notice and an opportunity to cure; (2) conduct that would hold

the Company in disrepute or scandal; (3) failure to follow

lawful directions of the Board; (4) breach of fiduciary duty to

the Company; or (5) gross neglect of the employee‟s duties,

or any act of theft or dishonesty.

3

Burton traveled frequently as part of her job with Teleflex.

Moreover, Boarini did not work in the same office as Burton.

Both of these factors contributed to their infrequent

interactions. Burton further claims that Boarini excluded her

from business communication and sales meetings, and that he

did not evaluate her performance or prepare a performance

appraisal for her. Although Boarini claims that he had

difficulty communicating with Burton and that she did not

5

Development, Burton supervised the sales department for

SMD. However, in February or March 2008, Dave Faris

(“Faris”), a male in his forties, was transferred from another

Teleflex division to be the director of sales for SMD, and the

sales team then began reporting to him instead of Burton.

Boarini acknowledged that “sales leadership . . . was a duty

[of Burton‟s] that was removed.” (App. 504.) Boarini also

told Faris “to work very closely with [Burton]” and to learn

from her. (App. 738; see also App. 373-74, 505.)

The problems between Burton and Boarini came to a

head on June 3, 2008. That day, the two attended a medical

device trade show in Manhattan. Boarini stated that he

intended to discuss with Burton her lack of communication

and undefined performance objectives. At their depositions,

both parties recounted their version of the conversation.

Burton testified about the encounter:

[A]nd I came up to Ed [Boarini] and I said, I

asked him when he wanted to get together

because he had talked to me on the phone the

previous Friday and mentioned that he wanted

to meet with me.

So when I got there I went to him and

asked him when did he want to get together and

he couldn‟t really even look me in the face. He

said, Oh, well, he was going to be really busy,

clearly define her performance objectives, it is undisputed

that Boarini never informed Burton of any performance

issues.

6

he had all these customers he had to see, he

didn‟t have time that day, he didn‟t think he

would have any time the next day, he was too

busy, and then he talked about maybe I can give

you ten minutes or so on Thursday, and I said,

you know, I made all my appointments to be

later because I thought you were very specific

about wanting to get together with me, and he

was just kind of treating me like I wasn‟t even

there and he was treating me like a useless old

woman and just like I wasn‟t there, and he

couldn‟t come up with any answer. It was like

what do you mean I want to see you.

I mean, he just was pretty much just

trying to get rid of me. And I finally pressed it,

I said, are you asking for me to resign? Do you

want me to resign? That‟s what I said to him.

Do you want me to resign?

He said, Oh, no, no, we want you here

for a long time to come and he was like, Oh, no,

no, that‟s not what I mean at all. We need you.

We want you for a long time.

And I don‟t know if too much more

happened right at that moment, but I started to

walk away and shortly thereafter he said to me,

he said, I think you should think about that.

(App. 137.)

7

Boarini‟s testimony was fairly consistent with

Burton‟s account:

I had gone there with every intention to try to

have a dialogue with Mary Burton and

determine what she wanted to do with the

business because she had not had any progress

on her performance objectives or any kind of

dialogue. And within a few minutes of talking

to her about setting up a time to have that

conversation, she resigned. . . .

She asked me if I wanted her to resign. I

said, no. Wait. Let‟s talk through this. Let‟s

have a dialogue. Let‟s understand what we can

do because we knew — I felt the relationship

with her was not working to the betterment of

the business.

And twice she said, do you want me to

resign? And I said, no. The third time is when

I said, maybe you should think about retiring.

That‟s when she decided to resign.

(App. 185.)

Despite Boarini testifying that Burton resigned at the

end of their conversation, he acknowledged that Burton never

explicitly said that she was resigning. As Boarini recalled,

the conversation ended when Burton disengaged and walked

away. However, two other Teleflex employees at the trade

show, Faris and Jack Fulton (“Fulton”), claimed that Burton

informed them on June 3, 2008, that she had resigned when

8

she returned to the Teleflex booth after her conversation with

Boarini. These two employees then told Boarini that Burton

had resigned. Based on his conversation with Burton, and the

accounts of Faris and Fulton, Boarini determined that Burton

had resigned.

The next day, Wednesday, Burton met with Faris to

discuss a work-related matter. Burton did not return to

Teleflex‟s booth on Wednesday or Thursday, the latter of

which she claimed was because she was upset about the

conversation with Boarini. On Friday, Burton left on a one-

week vacation that she had scheduled several weeks prior to

the incident with Boarini‟s knowledge and approval.

It is unclear if Burton had any contact with the office

while she was away on vacation.4 On the day that she was

scheduled to return to work, June 16, 2008, Burton received a

letter from Sean O‟Neill (“O‟Neill”), Vice President of

Global Human Relations for Teleflex Medical, stating that

Teleflex was formally “accept[ing her] resignation.” (App.

211.) Even though Burton was not entitled to severance in

the event that she resigned, the letter stated that Burton would

receive six months‟ severance if she extended the non-

competition and non-solicitation clauses in her Employment

4

Burton testified at her deposition that she could not recall if

she called the office regarding work while she was away.

However, in her Verified Statement, Burton claimed that she

did call while she was away and that she was told her calls

would not be patched through. Edward Burton‟s deposition

testimony also discussed this happening.

9

Agreement. The severance was also conditioned on her

releasing Teleflex from any liability relating to her

employment. O‟Neill later testified that he determined that

Burton had resigned in reliance on Boarini‟s assessment and

the statements from other employees that Burton had told

them she resigned.

On June 16, 2008, the same day as O‟Neill‟s letter to

Burton, Teleflex sent a letter to its customers stating that

Burton “decided to leave the company to pursue other

opportunities.” (App. 436.) Boarini emailed Teleflex

employees the next day, June 17, 2008, to tell them that

Burton had left the company “to pursue other opportunities.”

(App. 236.)

Burton claims that she was in disbelief when she

received the letter from O‟Neill, because she did not resign.

Burton reached out to her lawyer, but at no point did she ever

personally contest the letter or her termination with anyone at

Teleflex. All of her communication with Teleflex was

conducted through her lawyer, Michael Jarman.

Additionally, Burton never attempted to return to work.

Instead, through her attorney, Burton tried to negotiate the

terms of her separation from Teleflex. Negotiations broke

down, however, and no agreement was reached.

Burton‟s employee file at Teleflex reflects that she was

removed from payroll on June 17, 2008. However, in the

space on the form asking the reason for the change in status,

in which “quit without notice,” “retired,” and “resigned” were

all options, none of the corresponding boxes was checked.

Instead, the form was filled out to state that she “[l]eft [the]

co[mpany] to pursue other opportunities.” (App. 433.)

Teleflex does not dispute that Burton never explicitly said to

10

Boarini that she was resigning, nor does it dispute that she

never submitted a letter of resignation, despite the

requirement in her Employment Agreement that she do so.

Following the breakdown of the negotiations, Burton

filed suit in the District Court for the Eastern District of

Pennsylvania alleging several claims against Teleflex: (1)

age discrimination under the ADEA; (2) gender

discrimination under Title VII; (3) age and gender

discrimination under the Pennsylvania Human Relations Act

(PHRA), 43 Pa. Const. Stat. § 951 et seq.; (4) breach of

contract; (5) breach of the covenant of good faith and fair

dealing; (6) wrongful interference with contractual relations;

and (7) defamation.5 Teleflex moved for summary judgment.

On September 29, 2011, the District Court granted summary

judgment in favor of Teleflex on all of Burton‟s claims, in an

order without memorandum opinion. The District Court

issued its Memorandum Opinion on November 2, 2011.

Burton v. Teleflex, No. 09-CV-2684, 2011 WL 5237709 (E.D.

Pa. Nov. 2, 2011).

On October 6, 2011, Burton filed a timely notice of

appeal from the District Court‟s Order granting Teleflex‟s

motion for summary judgment.

5

Burton brings her ADEA and Title VII claims against the

Corporate Defendants only, her PHRA claim against all

Defendants, her breach of contract and breach of the duty of

good faith and fair dealing claims against only the Corporate

Defendants, and her wrongful interference with contract and

defamation claims against only Boarini and O‟Neill.

11

II. JURISDICTION AND STANDARD OF REVIEW

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

1331 and 1367. We have jurisdiction under 28 U.S.C. §

1291. We exercise plenary review over the District Court‟s

grant of summary judgment and apply the same standard that

the District Court would apply. Howley v. Mellon Fin. Corp.,

625 F.3d 788, 792 (3d Cir. 2010). A grant of summary

judgment is appropriate where the moving party has

established “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).6 A fact is material if it

might affect the outcome of the suit under the governing law.

Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006).

Where the defendant is the moving party, the burden is

on the defendant to show that the plaintiff has failed to

establish one or more essential elements of her case. Hugh v.

Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

The reviewing court should view the facts in the light most

favorable to the non-moving party and draw all reasonable

inferences in that party‟s favor. Scheidemantle, 470 F.3d at

538. However, to prevail on a motion for summary judgment,

6

Federal Rule of Civil Procedure 56 was revised in 2010.

The standard previously set forth in subsection (c) is now

codified as subsection (a). The language of this subsection is

unchanged, except for “one word — genuine „issue‟ bec[ame]

genuine „dispute.‟” Fed. R. Civ. P. 56 advisory committee‟s

note (2010 amend).

12

“the non-moving party must present more than a mere

scintilla of evidence; „there must be evidence on which the

jury could reasonably find for the [non-movant].‟” Jakimas v.

Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007)

(alteration in original) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)).

III. ANALYSIS

Burton argues that the District Court erred in granting

summary judgment to Teleflex. She claims that the District

Court improperly made credibility determinations as to the

evidence before it, did not consider all of Burton‟s evidence,

and gave undue credit to Teleflex‟s version of the facts. The

central issue on appeal is the factual question of whether

Burton resigned from Teleflex or whether she was terminated.

Because we believe there is a genuine dispute as to this

question and believe resolution of that dispute may be

determinative of Burton‟s breach of contract and

discrimination claims, we vacate the grant of summary

judgment on those claims.

Burton has not demonstrated disputes of material fact

as to her remaining state law claims. As such, summary

judgment was properly granted on her claims for breach of

the duty of good faith and fair dealing, wrongful interference

with contract, and defamation.

13

A. Age and Gender Discrimination Claims

1. Legal Standards for Establishing

Employment Discrimination

The ADEA and Title VII prohibit discrimination on

the basis of age and sex, respectively.7 Because Burton has

not provided direct evidence of discrimination, our inquiry

under both statutes is governed by the three-part framework

established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-03 (1973). See Smith v. City of Allentown, 589 F.3d

684, 691 (3d Cir. 2009) (reaffirming the use of the

McDonnell Douglas standard in ADEA cases involving

indirect evidence); Scheidemantle, 470 F.3d at 538-39

(applying McDonnell Douglas standard to Title VII gender

discrimination claim concerning indirect evidence).

Under the first step in the McDonnell Douglas

analysis, the plaintiff bears the burden of making out a prima

facie case of discrimination. Scheidemantle, 470 F.3d at 539.

To establish a prima facie case of age discrimination under

the ADEA, Burton must make a showing that: (1) she is forty

years of age or older; (2) the defendant took an adverse

employment action against her; (3) she was qualified for the

7

The ADEA prohibits employers from discriminating against

individuals in hiring, discharge, compensation, terms,

conditions, or privileges of employment on the basis of their

age. See 29 U.S.C. § 623(a)(1). Title VII likewise prohibits

employers from discriminating against individuals on the

basis of their race, color, religion, sex, or national origin. See

42 U.S.C. § 2000e-2(a)(2).

14

position in question; and (4) she was ultimately replaced by

another employee who was sufficiently younger to support an

inference of discriminatory animus. Smith, 589 F.3d at 689.

To make a showing of a prima facie case of gender

discrimination under Title VII, Burton must show that: (1)

she was a member of a protected class; (2) she was qualified

for the position; (3) she suffered an adverse employment

action; and (4) members of the opposite sex were treated

more favorably. Hugh, 418 F.3d at 267 (citing McDonnell

Douglas, 411 U.S. at 802-03). A plaintiff may also meet the

last element by showing that the adverse employment action

“occurred under circumstances that could give rise to an

inference of intentional discrimination.” Makky v. Chertoff,

541 F.3d 205, 214 (3d Cir. 2008).

To establish a prima facie case at summary judgment,

“the evidence must be sufficient to convince a reasonable

factfinder to find all of the elements of [the] prima facie

case.” Duffy v. Paper Magic Grp., 265 F.3d 163, 167 (3d Cir.

2001) (alteration in original) (internal quotation marks

omitted). If a plaintiff fails to raise a genuine dispute of

material fact as to any of the elements of the prima facie case,

she has not met her initial burden, and summary judgment is

properly granted for the defendant. See Geraci v. Moody-

Tottrup, Int’l, Inc., 82 F.3d 578, 580 (3d Cir. 1996).

Once the plaintiff makes out her prima facie case, “the

burden of production [then] shifts to the defendant to offer a

legitimate non-discriminatory [justification] for the adverse

employment action.” Smith, 589 F.3d at 690; see also

Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639,

644 n.5 (3d Cir. 1998). This burden is “„relatively light‟” and

is satisfied if the employer provides evidence, which, if true,

15

would permit a conclusion that it took the adverse

employment action for a non-discriminatory reason. Tomasso

v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (quoting

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)); see also

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,

302 (3d Cir. 2012) (describing this step as a “minimal

burden”). At this stage, “the defendant need not prove that

the articulated reason actually motivated its conduct.”

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d

Cir. 2003) (internal quotation marks omitted).

The third step in the McDonnell Douglas analysis

shifts the burden of production back to the plaintiff to provide

evidence from which a factfinder could reasonably infer that

the employer‟s proffered justification is merely a pretext for

discrimination. Fuentes, 32 F.3d at 764-65; see also Sarullo

v. U.S. Postal Serv., 352 F.3d 789, 799-800 (3d Cir. 2003).

The plaintiff must make this showing of pretext to defeat a

motion for summary judgment. Doe v. C.A.R.S. Prot. Plus,

Inc., 527 F.3d 358, 364 (3d Cir. 2008) (explaining that, “to

defeat a motion for summary judgment, [the plaintiff] must

show that the employer‟s articulated reason was a pretext for

intentional discrimination”). To make a showing of pretext,

“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.” Fuentes, 32 F.3d at 764.

The plaintiff‟s evidence, if it relates to the credibility

of the employer‟s proffered justification, “must demonstrate

such weaknesses, implausibilities, inconsistencies,

16

incoherencies, or contradictions in the employer‟s proffered

legitimate reasons for its action 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)). As we have

explained, if a plaintiff has come forward with sufficient

evidence to allow a finder of fact to discredit the employer‟s

proffered justification, she need not present additional

evidence of discrimination beyond her prima facie case to

survive summary judgment. See Fuentes, 32 F.3d at 764;

Fasold v. Justice, 409 F.3d 178, 185 (3d Cir. 2005). This is

because the factfinder may infer from the combination of the

prima facie case, and its own rejection of the employer‟s

proffered reason, that the employer engaged in the adverse

employment action for an invidious reason. Fuentes, 32 F.3d

at 764; see also Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 147 (2000) (“Proof that the defendant‟s

explanation is unworthy of credence is simply one form of

circumstantial evidence that is probative of intentional

discrimination, and it may be quite persuasive.”). The

plaintiff is therefore not required to produce direct evidence

of discriminatory intent to demonstrate pretext and survive a

motion for summary judgment.

2. District Court Opinion on

Discrimination Claims

The District Court first determined that, even in the

light most favorable to Burton, the evidence weighed in favor

of a finding that she had resigned, and had not been

terminated. Burton, 2011 WL 5237709, at *3 n.7. Because a

plaintiff must suffer an adverse employment action to state a

prima facie case of employment or gender discrimination, the

17

District Court could have based its grant of summary

judgment on its conclusion that Burton had suffered no

adverse employment action. See Duffy, 265 F.3d at 171

(affirming the district court‟s grant of summary judgment

because the plaintiff “did not produce evidence from which a

reasonable jury could find an adverse employment action,

which is a prerequisite to a successful age discrimination

claim”).

However, the District Court presumed, for purposes of

summary judgment, that Burton had stated a prima facie case,

and proceeded to conduct the McDonnell Douglas burden

shifting analysis. It determined that Teleflex had proffered a

legitimate non-discriminatory reason for sending Burton the

resignation letter — namely, that Teleflex reasonably

believed that Burton had resigned. Burton, 2011 WL

5237709, at *3. Under this analysis, the burden then shifted

to Burton to demonstrate that Teleflex‟s justification for

sending her the letter was pretextual. The District Court

determined that none of the evidence proffered by Burton

“call[ed] into question Boarini‟s or O‟Neill‟s belief that [she

had] resigned,” or created a “triable issue that discriminatory

animus existed and was a moving factor behind Teleflex‟s

[actions].” Id. at *5. The District Court therefore granted

summary judgment for Teleflex on Burton‟s age and gender

discrimination claims.

As explained below, the District Court erred by finding

that there was no dispute of fact as to whether Burton

resigned or was terminated. Because the District Court‟s

determination that Burton resigned improperly impacted its

pretext analysis, we vacate the grant of summary judgment

and remand for further proceedings.

18

3. Dispute of Material Fact Relating to

Burton’s Separation from Teleflex

Contrary to the District Court‟s determination, Burton

has proffered evidence from which a factfinder could

conclude that Teleflex terminated her. Burton maintains that

she did not resign from Teleflex, and that she never told

anyone that she had resigned. In fact, no Teleflex employee

ever confirmed with Burton that she had actually resigned

before Teleflex “accepted [her] resignation.” (App. 211; see

also App. 553-54, 797.) Instead of verifying whether Burton

intended to resign, the company mailed her a letter on June

16, 2008, when she returned from her vacation, notifying her

that it was accepting her resignation. The author of the letter,

Sean O‟Neill, said that he determined that Burton had

resigned based on Boarini‟s assessment and the statements of

other employees.

At his deposition, Boarini admitted that Burton never

said that she was resigning. Moreover, Teleflex

acknowledged that Burton never submitted a resignation letter

or formally notified the company in any way that she was

resigning despite the fact that Burton‟s employment

agreement provided that she must provide written notice to

the company at least 30 days before her resignation is to be

effective. As we pointed out at oral argument, there is no

evidence that Burton ever said she was resigning to anyone

above her in the chain of command. Boarini also admitted

that he did not contact Burton after the incident on June 3,

19

2008 to confirm that she resigned or to ask her for a letter of

resignation.8

According to Boarini, Faris and Fulton told him on

June 3, 2008, that Burton had told them that she resigned.

The District Court credited the testimony of these employees

in deciding that Burton had in fact resigned. However, the

court did not credit the testimony of Burton herself, who

denied having told anyone that she resigned. Nor did the

District Court consider the conflicting testimony of Edward

Burton, who spoke to Burton subsequent to her conversation

with Boarini. They discussed Burton‟s conversation with

Boarini, but Edward claimed that Burton said nothing about

having resigned or having been fired. Edward testified that

Burton continued to work after June 3, 2008, and that

sometime before June 16, 2008, Burton called the office to

send in quotes and was told by the receptionist that her call

could not be put through. By crediting the testimony of the

Teleflex employees and disregarding the Burtons‟ conflicting

testimony, the District Court improperly made credibility

determinations, which it may not do at summary judgment.

See Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011)

(noting that at summary judgment “[t]he court may not . . .

weigh the evidence or make credibility determinations

because these tasks are left for the fact finder” (internal

quotation marks omitted)).

8

He also testified, however, that he had no cell phone number

for Burton, and did not know how to reach her after the June

3, 2008 incident.

20

Several other pieces of evidence are relevant to the

issue of whether Burton resigned or was terminated. First, in

Burton‟s personnel file, on a form indicating that she was no

longer to be paid by Teleflex, the boxes indicating that she

either “quit without notice,” “resigned,” or “retired” were not

checked. (App. 433, 466-67, 810.) Instead, the form was

completed to say: “[l]eft co[mpany] to pursue other

opportunities.” (App. 433, 809.) At her deposition, Teleflex

Human Resources Director Margie Heilig (“Heilig”)

conceded that she could not state from where she got that

information because it involved a conversation with an

attorney. Boarini testified that he had “no idea” why the form

was filled out in that particular way.

Second, approximately one month prior to Burton‟s

confrontation with Boarini at the trade show, Boarini and two

other Teleflex employees were emailing about the departure

of Edward Burton from Teleflex. At one point, the email

chain shifts to discussing Burton. An official at Teleflex, Tim

Kelleher (“Kelleher”), tells Boarini and another employee in

an email: “I also talked to [Edward] about [Burton] and the

lack of communication and sharing of information and our

concerns about her after he leaves. He has agreed to facilitate

a three way conversation between [Edward], [Burton] and me

to get her to play ball.” (App. 413 (emphasis added).)

Kelleher, the drafter of the email, testified that his reference

to getting Burton to play ball merely meant that he wanted

Edward to discuss with Burton her lack of communication.

While that is certainly a plausible explanation, it is equally

plausible that a reasonable juror could perceive the comment

as a reference to pushing Burton out of the company.

21

Third, the District Court also cited “plaintiff‟s conduct

after receipt of the June 16, 2008 letter” as a reason for

finding that Burton had resigned. Burton, 2011 WL 5237709,

at *3 n.7. The District Court claimed that “plaintiff made no

protest that the resignation had not occurred.” Id. at *4.

Boarini testified that he and others at Teleflex were surprised

that they received no follow-up directly from Burton

following her receipt of the June 16, 2008 letter. Burton also

testified that she did not initiate any contact with Teleflex

after receiving the letter, but that she did not do so because

she considered herself to have been fired, and believed she

“no longer had any rights.” (App. 385.) Upon receipt of the

June 16, 2008 letter, Burton contacted her attorney Michael

Jarman, and from that point forward she only communicated

with Teleflex “by and through [her] Attorney Jarman.” (App.

323.) She further testified that she would not have contacted

Teleflex on her own without first speaking to her attorney.

The District Court thus did not consider that Burton

communicated with Teleflex through her attorney following

the June 16, 2008 letter, which undercuts its conclusion that

she did not contest the resignation letter.

Burton also testified that, during a party that she held

for her former employees shortly after her separation from

Teleflex, she denied having resigned and clarified that she

believed she had been fired. Furthermore, Teleflex notified

its customers of Burton‟s departure on June 16, 2008, the

same day it sent her the letter purporting to accept her

resignation. This fact undercuts the District Court‟s reliance

on Burton‟s conduct after receiving the June 16, 2008 letter.

Once clients were notified of Burton‟s alleged resignation,

she could reasonably have concluded that Teleflex had fired

22

her, leaving her no ability to contest her separation and return

to her position.

Fourth, the District Court ignored evidence that Burton

continued to perform work for Teleflex after her conversation

with Boarini on June 3, 2008. On June 4, 2008, Burton met

with Faris at the trade show to train him on quoting prices to

customers. Faris acknowledged that he had a meeting with

Burton at the trade show after her purported resignation, and

that during the meeting Burton was talking about working

together. Burton also testified that she had a previously

scheduled vacation from June 9 to June 13, which could

explain her absence from the office during this time period.

Other evidence also indicates that, while she was on her

vacation, Burton called in to the office to send in price quotes

for customers, but that the receptionist would not put her

through.9

At this stage of the litigation, there is sufficient

evidence from which a reasonable juror could conclude that

Burton was terminated. The District Court ignored the fact

that Burton never tendered her resignation, Burton never told

anyone to whom she reported at Teleflex that she was

resigning, Teleflex relied on hearsay statements to conclude

that Burton had resigned, and Teleflex never once asked

Burton if she had resigned. While there is certainly evidence

to suggest that Burton did resign, this evidence is refuted by

Burton. The District Court therefore erred when it

9

At her deposition, however, Burton testified that she could

not remember whether she had called in to the office while

she was on vacation.

23

determined that “[t]he evidence . . . weighs in favor of a

finding that [Burton] resigned, even viewing the evidence in

the light most favorable to [her].” Burton, 2011 WL

5237709, at *3 n.7.

4. McDonnell Douglas Burden Shifting

Analysis

The District Court granted summary judgment for

Teleflex because it held that Burton could not show that

Teleflex‟s justification for sending her the resignation letter

was pretextual. Burton, 2011 WL 5237709, at *4-5. Because

the District Court‟s pretext analysis was unduly influenced by

its error regarding Burton‟s resignation, we vacate the grant

of summary judgment and remand for further proceedings.

To the extent the District Court‟s pretext analysis

suggested that Burton was required to show evidence of

discriminatory animus to demonstrate pretext, that suggestion

is unsupported by our precedent. See Fuentes, 32 F.3d at 764.

A plaintiff may demonstrate pretext at summary judgment in

two different ways. First, the plaintiff may point to evidence

in the record that would cause a reasonable juror to disbelieve

the employer‟s articulated legitimate non-discriminatory

reason, thereby creating a genuine dispute of material fact as

to the credibility of that reason. See id. at 764 & n.7. If a

plaintiff comes forward with evidence that would cause a

reasonable factfinder to find the defendant‟s proffered reason

“unworthy of credence,” Lichtenstein, 691 F.3d at 310

(internal quotation marks omitted), she need not adduce any

evidence of discrimination beyond her prima facie case to

survive summary judgment, Fuentes, 32 F.3d at 764; see also

Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,

1067 (3d Cir. 1996) (en banc) (“[A] plaintiff may survive

24

summary judgment . . . if the plaintiff produced sufficient

evidence to raise a genuine issue of fact as to whether the

employer‟s proffered reasons were not its true reasons for the

challenged employment action.”). Second, the plaintiff may

also defeat summary judgment by pointing to evidence that

indicates that the employer acted with discriminatory animus.

Fuentes, 32 F.3d at 764.

As discussed above, we find that Burton‟s evidence

created a genuine dispute of fact regarding the credibility of

Teleflex‟s proffered reason for her discharge — i.e., that a

reasonable fact finder could find the claim that Burton

resigned to be “unworthy of credence.” Id. at 765. In the

face of such evidence, Burton did not need to present

evidence of discriminatory animus and she should not have

been required to do so.

We therefore vacate the grant of summary judgment

on Burton‟s ADEA and Title VII claims and remand for

further proceedings consistent with this opinion.

B. Burton’s Pennsylvania State Law Claims

The District Court also granted summary judgment to

Teleflex on all of Burton‟s state law claims. For the

following reasons, we vacate the grant of summary judgment

on Burton‟s breach of contract and state law discrimination

claims. We affirm the District Court‟s grant of summary

judgment regarding Burton‟s remaining state law claims.

25

1. Breach of Contract

The District Court granted summary judgment to

Teleflex on Burton‟s breach of contract claim because it

concluded that “the evidence of record, viewed in the light

most favorable to plaintiff, is that she resigned her position.”

Burton, 2011 WL 5237709, at *5. Because a dispute of

material fact exists as to whether Burton resigned or was

terminated, summary judgment was inappropriately granted

on her breach of contract claim.

Under Pennsylvania law, “[a] breach of contract action

involves: (1) the existence of a contract; (2) a breach of a duty

imposed by the contract; and (3) damages.” Braun v. Wal-

Mart Stores, Inc., 24 A.3d 875, 896 (Pa. Super. Ct. 2011).

Burton bases her breach of contract claim on Teleflex‟s

alleged violation of her Employment Agreement. The

Agreement provides that Burton could be terminated in one of

two ways: (1) with cause, or (2) without cause, after 30 days‟

notice. The Employment Agreement specifies that if Burton

were to be terminated without cause, she would be entitled to

a set amount of severance pay. Teleflex does not claim that

Burton was terminated for cause, and Boarini admitted at his

deposition that he never brought any performance issues to

Burton‟s attention. The proposed separation agreement, sent

to Burton on June 16, 2008, offered her a severance, but with

the additional condition that she extend the non-compete

provisions in her original Employment Agreement by one

year.10 She never reached an agreement with Teleflex on the

10

Payment of the severance was also conditioned on Burton

releasing the company from liability. However, it is unclear

whether she would have been required to sign a release had

26

terms of her separation and has not received any severance

pay.

The central fact material to Burton‟s breach of contract

claim is whether she resigned or was terminated. If a

factfinder were to find that Burton was terminated from

Teleflex, he or she could also find that Teleflex breached the

terms of the Employment Agreement. The grant of summary

judgment is vacated.

2. Pennsylvania Human Relations Act

Burton also brings age and gender discrimination

claims against Teleflex under the PHRA, which prohibits

discrimination in employment on the basis of age or sex. 43

Pa. Cons. Stat. §§ 953, 955. We have “stated „that the PHRA

is to be interpreted as identical to federal anti-discrimination

laws except where there is something specifically different in

its language requiring that it be treated differently.‟” Slagle v.

Cnty. of Clarion, 435 F.3d 262, 265 n.5 (3d Cir. 2006)

(quoting Fasold, 409 F.3d at 184 n.8). The PHRA provisions

here present no such issue, and therefore should be

interpreted coextensively with Burton‟s ADEA and Title VII

claims. See Colwell v. Rite Aid Corp., 602 F.3d 495, 499 n.3

(3d Cir. 2010) (noting that it is “proper to address ADEA and

PHRA age discrimination claims collectively” (alteration and

internal quotation marks omitted)); Atkinson v. LaFayette

Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006) (“Claims under

the PHRA are interpreted coextensively with Title VII

claims.”). Because we vacate the grant of summary judgment

the company terminated her pursuant to her original

employment agreement.

27

on Burton‟s Title VII and ADEA claims, we also vacate the

grant of summary judgment on Burton‟s PHRA claims.

3. Breach of the Covenant of Good Faith

and Fair Dealing

The District Court construed Burton‟s claim for breach

of the covenant of good faith and fair dealing as claiming

that, but for her separation from Teleflex in 2008, she would

have continued to be employed by Teleflex beyond the two-

year term contemplated by her Employment Agreement.

Burton, 2011 WL 5237709, at *5. The District Court

concluded that no evidence in the record supported this

contention, and granted summary judgment. However,

Burton argues that Teleflex breached the duty of good faith

by terminating her employment in a manner contrary to the

Employment Agreement, and by “contriv[ing] an illusory

resignation to absolve them from their severance obligations

under the Employment Agreement.” (Br. of Appellant 26.)

Regardless of how the claim is framed, summary judgment

was properly granted because under Pennsylvania law, the

implied covenant of good faith does not allow for a cause of

action separate and distinct from a breach of contract claim.

Pennsylvania courts have defined the duty of good

faith and fair dealing as “[h]onesty in fact in the conduct or

transaction concerned,” and have held that “[w]here a duty of

good faith arises, it arises under the law of contracts, not

under the law of torts.” Heritage Surveyors & Eng’rs, Inc. v.

Nat’l Penn Bank, 801 A.2d 1248, 1253 (Pa. Super. Ct. 2002)

(internal quotation marks omitted). Moreover, under

Pennsylvania law, a “claim for breach of the implied

covenant of good faith and fair dealing is subsumed in a

breach of contract claim.” LSI Title Agency, Inc. v.

28

Evaluation Servs., Inc., 951 A.2d 384, 392 (Pa. Super. Ct.

2008). Therefore, while Pennsylvania law generally

recognizes a duty of good faith in the performance of

contracts, this duty “does not create independent substantive

rights.” Commonwealth v. BASF Corp., No. 3127, 2001 WL

1807788, at *12 (Pa. Commw. Ct. Mar. 15, 2001); see also

JHE, Inc. v. Se. Pa. Transp. Auth., No. 1790, 2002 WL

1018941, at *5 (Pa. Commw. Ct. May 17, 2002) (“[T]he

implied covenant of good faith does not allow for a claim

separate and distinct from a breach of contract claim. Rather,

a claim arising from a breach of the covenant of good faith

must be prosecuted as a breach of contract claim, as the

covenant does nothing more than imply certain obligations

into the contract itself.” (emphasis in original)).

Any claim that Teleflex violated the duty of good faith

and fair dealing in the performance of the Employment

Agreement is therefore subsumed into Burton‟s breach of

contract claim. Although the District Court did not utilize

this analysis in granting summary judgment to Teleflex,

“„[w]e may affirm the District Court on any grounds

supported by the record.‟” Kossler v. Crisanti, 564 F.3d 181,

186 (3d Cir. 2009) (alteration in original) (quoting Nicini v.

Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc)).

Because Burton cannot maintain an independent cause of

action for the breach of the covenant of good faith and fair

dealing under Pennsylvania law, we affirm the District

Court‟s grant of summary judgment on this claim.

29

4. Wrongful Interference with Contractual

Relations

The District Court granted summary judgment for

O‟Neill and Boarini on Burton‟s claim for wrongful

interference with contractual relations because she provided

no evidence from which a factfinder could conclude that

O‟Neill and Boarini were acting as third parties to her

Employment Agreement when they allegedly caused its

breach. Burton, 2011 WL 5237709, at *5-6. The District

Court was correct in this conclusion and its grant of summary

judgment on this claim is affirmed.

Under Pennsylvania law, the elements of a claim for

wrongful interference with contractual relations are: (1) the

existence of a contractual relationship between the plaintiff

and a third party; (2) purposeful action by the defendant,

specifically intended to harm the contractual relationship; (3)

the absence of privilege or justification on the part of the

defendant; and (4) damages to the plaintiff as a result of the

defendant‟s conduct. See Acumed LLC v. Advanced Surgical

Servs., Inc., 561 F.3d 199, 212 (3d Cir. 2009). However, a

plaintiff can only bring a claim for wrongful interference

against a third party to the contract, not against a defendant

who is also party to the contract. See Nix v. Temple Univ. of

Commw. Sys. of Higher Educ., 596 A.2d 1132, 1137 (Pa.

Super. Ct. 1991). Because a corporate agent acting within the

scope of his employment acts on behalf of the corporation, he

is not considered a third party to the contract. Id. Thus,

under Pennsylvania law, where “a plaintiff has entered into a

contract with a corporation, and that contract is terminated by

a corporate agent who has acted within the scope of his or her

authority, the corporation and its agent are considered one so

30

that there is no third party against whom a claim for

contractual interference will lie.” Daniel Adams Assocs., Inc.

v. Rimbach Publ’g, Inc., 519 A.2d 997, 1002 (Pa. Super. Ct.

1987); see also Maier v. Maretti, 671 A.2d 701, 707 (Pa.

Super. Ct. 1995) (“Appellant, however, overlooked case law

which holds a corporation acts only through its agents and

officers, and such agents or officers cannot be regarded as

third parties when they are acting in their official capacity.”).

Burton has provided no evidence from which a trier of

fact could conclude that either O‟Neill or Boarini was acting

outside the scope of his authority for Teleflex when each

allegedly caused Teleflex to breach Burton‟s Employment

Agreement. At her deposition, Burton was asked about what

Boarini and O‟Neill did to interfere with her Agreement. She

responded that Boarini gave O‟Neill the information that she

allegedly resigned, and that O‟Neill interfered by writing the

June 16, 2008 letter. These allegations do not support an

inference that either Boarini or O‟Neill was acting outside the

scope of his authority as a Teleflex employee. Although

Burton argues that “[a] jury could find that Boarini and

O‟Neill acted individually to interfere with [her] employment

contract with Teleflex,” (Br. of Appellant 27), such

conclusory allegations are insufficient to withstand a motion

for summary judgment, see Betts v. New Castle Youth Dev.

Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (“Unsupported

assertions, conclusory allegations, or mere suspicions are

insufficient to overcome a motion for summary judgment.”).

31

5. Defamation

Burton brings a defamation claim against Boarini

based on the notices that he sent to Teleflex customers and

employees advising them that Burton had left the company

“to pursue other opportunities.” 11 The District Court held

that Burton could not maintain her claim against Boarini

because the notices were not capable of defamatory meaning,

nor could she show that she was damaged by any of these

statements. Burton, 2011 WL 5237709, at *7. On appeal,

Burton argues that the District Court erred in holding that the

June 16, 2008 notice to customers and the June 17, 2008

email to Teleflex employees were incapable of defamatory

meaning. (Reply Br. of Appellant 14-15.) The District Court

was correct in granting summary judgment to Boarini on

Burton‟s defamation claim.

Under 42 Pa. Cons. Stat. § 8343(a), a plaintiff is

required to prove seven elements to make out a claim of

defamation, including inter alia, proof of “[t]he defamatory

character of the communication” and “[s]pecial harm

resulting to the plaintiff from its publication.” Whether a

communication is capable of defamatory meaning is a

11

In her Complaint, Burton also brings a defamation claim

against O‟Neill arising from the June 16, 2008 resignation

letter. The District Court held that Burton could not maintain

her defamation claim against O‟Neill because the June 16,

2008 letter was sent only to her, and therefore was never

published. Burton does not contest this finding on appeal,

and thus has waived her claim against O‟Neill. See Gorum v.

Sessoms, 561 F.3d 179, 185 n.3 (3d Cir. 2009) (noting that

the failure to argue an issue waives it on appeal).

32

“threshold issue” to be determined by the court. Kurowski v.

Burroughs, 994 A.2d 611, 617 (Pa. Super. Ct. 2010); see also

Blackwell v. Eskin, 916 A.2d 1123, 1125 (Pa. Super. Ct.

2007) (“Whether the contested statements are capable of

defamatory meaning is a question of law for the court.”). The

plaintiff bears the burden of making this showing and “[i]f the

court determines that the challenged publication is not

capable of defamatory meaning, there is no basis for the

matter to proceed to trial.” Kurowski, 994 A.2d at 617

(internal quotation marks omitted).

In considering whether a statement is capable of

defamatory meaning, the court considers “whether the

statement tends so to harm the reputation of another as to

lower him in the estimation of the community or to deter third

parties from associating or dealing with him.” Tucker v.

Phila. Daily News, 848 A.2d 113, 124 (Pa. 2004) (internal

quotation marks omitted). The statement must be examined

in context to determine its likely effect on the reader, id., and

the Court should evaluate the effect it is likely to produce “in

the minds of the average persons among whom it is intended

to circulate,” Tucker v. Fischbein, 237 F.3d 275, 282 (3d Cir.

2001) (internal quotation marks omitted). Furthermore, the

statement must do more than merely annoy or embarrass the

purported victim; “[s]he must have suffered the kind of harm

which has grievously fractured h[er] standing in the

community of respectable society.” Phila. Daily News, 848

A.2d at 124 (internal quotation marks omitted).

Burton takes issue with the statement made to Teleflex

customers and employees that she “decided to leave the

company to pursue other opportunities.” (App. 436; see also

App. 236.) Although she claims that this statement caused

33

co-workers to become angry with her, and allegedly caused

customers to disassociate from her, the statement says nothing

negative, and on its own, is incapable of “grievously

fractur[ing] [her] standing in the community of respectable

society.” Phila. Daily News, 848 A.2d at 124 (internal

quotation marks omitted); see also Maier, 671 A.2d at 704-05

(collecting cases where far more egregious statements have

been held to be incapable of defamatory meaning); cf. Agriss

v. Roadway Express, Inc., 483 A.2d 456, 462-63 (Pa. Super.

Ct. 1984) (holding that statement that employee “opened

company mail” was capable of defamatory meaning because

it implied that he committed a crime); Birl v. Phila. Elec. Co.,

167 A.2d 472, 475-76 (Pa. 1960) (holding that statement by

plaintiff‟s former employer to his current employer that

plaintiff “quit without giving notice” was capable of

defamatory meaning because “recipients of such

communication could reasonably conclude that [plaintiff]

lacked honor and integrity and was not a person to be relied

upon insofar as his business dealings were concerned”).

Unlike the statements in Agriss and Birl, a statement

that Burton left the company “to pursue other opportunities”

does not reflect negatively on her integrity, and would not

cause the recipients of the communication to distrust her.

Furthermore, “even if the statement . . . were false, that does

not require a finding of defamatory character.” Kurowski,

994 A.2d at 619. The District Court therefore did not err

when it held that the statement that Burton left “the company

to pursue other opportunities” is incapable of defamatory

meaning.

In addition, Burton has not provided evidence that she

was damaged by the allegedly defamatory communication, as

34

required by 42 Pa. Cons. Stat. § 8343(a). As the District

Court noted, Burton held a party for Teleflex employees at

her home after her separation from Teleflex, and she testified

that at this point, the employees “[t]hought very highly” of

her, and did not believe that she had actually resigned. (App.

146.) She also testified that after her separation from Teleflex

she received two job offers from companies in the industry,

one in Lancaster and one in Oregon, and claimed that they

“would have taken [her] any time [she] was free.” (App.

157.) These facts cut against a finding that Burton was

damaged by the statements, and Burton has not put forth any

evidence to the contrary.

We affirm the District Court‟s grant of summary

judgment on Burton‟s defamation claim.

C. Motion to Supplement the Record on Appeal

Burton has filed a Motion to Supplement the Record

and Appendix to include an affidavit from her attorney,

Michael Jarman, and an email exchange between Jarman and

James Leyden, attorney for Teleflex. (App. 954-57.) These

documents were not provided to the District Court. Although

it is the function of the appellate court to review the decision

below on the basis of the record that was presented to the

district court, a court of appeals may allow a party to

supplement the record on appeal in “exceptional

circumstances.” Acumed LLC, 561 F.3d at 226. In

determining whether exceptional circumstances exist, the

court may consider:

(1) whether the proffered addition would

establish beyond any doubt the proper

35

resolution of the pending issue; (2) whether

remanding the case to the district court for

consideration of the additional material would

be contrary to the interests of justice and the

efficient use of judicial resources; and (3)

whether the appeal arose in the context of a

habeas corpus action.

Id. (quoting In re Capital Cities/ABC Inc’s Appl. for Access

to Sealed Trs., 913 F.2d 89, 97 (3d Cir. 1990)). Burton

argues that supplementing the record is necessary because

Jarman‟s affidavit and the accompanying email correct errors

of fact committed by the District Court. She claims that the

documents demonstrate that Burton communicated with

Teleflex after June 16, 2008 by and through Jarman (therefore

refuting the District Court‟s claim that she had no

communication with Teleflex after June 16, 2008), and

demonstrate that Jarman did in fact contest whether Burton

resigned. (Appellant‟s Mem. 3-4.) However, Burton could

have produced this information in the first instance to the

District Court in opposition to Teleflex‟s motion for summary

judgment. She nowhere claims that this information was not

in her possession. See Acumed LLC, 561 F.3d at 226 n.26

(“[A] party should present everything it needs for a complete

presentation on the motion [to the District Court] and, if

necessary, seek additional time under Fed. R. Civ. P. 56(f) to

marshal its evidence.”).

Burton claims that exceptional circumstances exist

because she was unable to file a Motion for Reconsideration

36

under Rule 59(e),12 but she fails to explain why she did not

include these documents in her original submissions to the

District Court. See Sigler v. Am. Honda Motor Co., 532 F.3d

469, 477-78 (6th Cir. 2008) (denying motion to supplement

record on appeal because “[p]ermitting [appellant] to

supplement the record on appeal with information that she

could have easily obtained much earlier would not advance

the interests of justice and would not further efficient use of

judicial resources”).

In addition, these materials add little to the record.

The record presented to the District Court contains sufficient

evidence to create a genuine dispute of material fact as to

whether Burton resigned or was terminated. Therefore,

Burton‟s Motion to Supplement is denied.

IV. CONCLUSION

For the foregoing reasons, we vacate the District

Court‟s grant of summary judgment on Burton‟s

discrimination claims brought under the ADEA, Title VII,

and the PHRA, and vacate the grant of summary judgment on

Burton‟s claim for breach of contract. We affirm the grant of

summary judgment on the remainder of Burton‟s state law

12

The District Court granted Teleflex‟s motion for summary

judgment in an order without memorandum opinion on

September 29, 2011, and issued its memorandum opinion on

November 2, 2011. In the interim, Burton filed a notice of

appeal. Because of the District Court‟s delay in issuing its

opinion, Burton claims that she was unable to file a motion

for reconsideration under Federal Rule of Civil Procedure

59(e).

37

claims, and deny Burton‟s Motion to Supplement the Record.

The case is remanded for proceedings consistent with this

Opinion.

38