Thomas A. Smith v. City of Allentown

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-1998
_____________
THOMAS A. SMITH,
Appellant
v.
CITY OF ALLENTOWN;
ED PAWLOWSKI
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 07-cv-4317)
District Judge: Honorable Mitchell S. Goldberg
_______________
Submitted Under Third Circuit LAR 34.1(a)
November 5, 2009
Before: SCIRICA, Chief Judge, JORDAN and COWEN,
Circuit Judges.
(Filed December 22, 2009)
_______________

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Richard J. Orloski
The Orloski law Firm
111 N. Cedar Crest Blvd.
Allentown, PA 18104
Edward J. Easterly
George C. Hlavac
Steven E. Hoffman
Tallman, Hudders & Sorrentino
1611 Pond Rd. - Ste. 300
Allentown, PA 18104
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Thomas Smith appeals an order of the United States
District Court for the Eastern District of Pennsylvania granting
summary judgment in favor of the City of Allentown and its
Mayor, Ed Pawlowski, on Smith’s claims for discrimination
based upon his age and political affiliation. For the reasons that
follow, we will affirm.
I. Background
A. Facts Underlying Smith’s Claims
At the time of Smith’s termination on October 19, 2006,
he was fifty-five years old and a registered member of the

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3
Republican party. He worked as the Superintendent of the City
of Allentown Recreation Bureau, a post to which he was
appointed in 2000 by former Mayor William Heydt, who also is
a Republican. As Superintendent, Smith was responsible for
overall management of the Recreation Bureau, including seven
full-time staff members and between 150 and 200 part-time,
seasonal employees. He prepared budgets, developed new
recreation programs, ran the City’s organized sports programs,
and assisted with the planning of “SportsFest,” an annual
community festival of athletic events. As Superintendent, he set
green fees at the municipal golf course and administered the
course’s annual marketing budget. He was also responsible,
along with the heads of two other City departments, for
managing the City’s swimming pools.
In November 2001, Democrat Roy Afflerbach succeeded
Heydt as Mayor. Smith continued to serve as Superintendent of
the Recreation Bureau throughout the Afflerbach administration,
weathering a funding crisis and preserving many of the City’s
recreation programs. In early 2002, Afflerbach appointed
appellee Ed Pawlowski as Director of Community and
Economic Development. Pawlowski thus became Smith’s
immediate supervisor in the City government. According to
Pawlowski, there were a number of problems with Smith’s
performance as Superintendent. Pawlowski said that Smith
neglected to create new recreational programs or to promote
existing recreation offerings. Smith acknowledges that
Pawlowski chastised him, and the other department heads who
operated the swimming pools, for failing to perform necessary
pool upkeep.

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It is unclear whether this conversation occurred before1
or after the November 2005 election. Smith recalls speaking
with Spang in the spring of 2006. Spang, on the other hand,
testified that he spoke with Smith approximately one year
earlier, before the election. Construing the facts in the light
most favorable to Smith as the party opposing summary
4
In late 2004, Pawlowski resigned in protest over certain
policies implemented by the Afflerbach administration. His
successor, and hence Smith’s new supervisor, was Lauren
Giguere. She developed a performance plan that established a
series of goals for the Recreation Bureau. The plan required
Smith to establish bureau-wide financial procedures, create a
master plan for cooperation between the Recreation Bureau and
the Parks Bureau, explore options for constructing new
recreation centers, and implement new software programs to
increase Bureau efficiency.
In early 2005, Pawlowski announced his candidacy for
Mayor of Allentown on the Democratic ticket. The November
2005 general election pitted Pawlowski as the Democratic
candidate against former Mayor Heydt on the Republican ticket.
Smith supported Heydt’s renewed bid for office and placed a
pro-Heydt campaign sign in his yard approximately three weeks
before the election. Pawlowski ultimately emerged victorious
in the election.
Sometime during the first half of 2006, Smith allegedly
had a conversation with his friend James Spang, a Democrat
who had worked on Pawlowski’s campaign. According to1

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judgment, we credit his recollection of the timing of this
conversation.
5
Smith, Spang stated that Pawlowski “viewed [Smith] as a
political enemy[] of sorts” and believed that Smith had
improperly attempted to influence two members of the City’s
recreation commission to support Heydt’s bid for Mayor. (App.
at 35a.) In contrast, Spang testified that he approached Smith to
express concern that Heydt had received preferential invitations
to events at SportsFest, while Pawlowski had not. Spang
recalled the conversation lasting approximately two minutes,
during which he encouraged Smith to refrain from politicizing
events and recommended that future invitations be extended in
a more neutral fashion. Spang, who does not recall uttering the
phrase “political enemy,” explained that he approached Smith
because he believed that Smith had a future as a candidate for
local office and that Smith’s political prospects would be placed
in jeopardy if he were perceived as using City events for
partisan purposes. Spang testified that he never informed
Pawlowski of his conversation with Smith, and Smith possesses
no knowledge regarding why Spang would have represented that
Pawlowski considered Smith a political foe.
In May 2006, then-Mayor Pawlowski appointed Francis
Dougherty, who until that time had worked in Philadelphia, to
replace Giguere as Director of Community and Economic
Development for Allentown. Dougherty conducted a review of
Smith’s file and determined that Smith had failed to achieve any
of the goals set forth in Guigere’s performance plan. Smith’s
view is that he had made progress on the goals, but he concedes

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Smith has submitted an affidavit that attempts to shift2
responsibility for these shortfalls but contradicts his deposition
testimony acknowledging accountability for some of the
problems identified by appellees. We credit Smith’s deposition
testimony to the exclusion of his affidavit insofar as the two are
in conflict. See Jiminez v. All Am. Rathskeller, Inc., 503 F.3d
247, 253 (3d Cir. 2007) (stating that a party may not rely upon
an affidavit that is inconsistent with the party’s prior deposition
testimony to create a genuine issue of material fact at the
summary judgment stage).
According to Smith, Everitt Bickford volunteered to3
coordinate and raise funds for the parade when the City
withdrew financial support for it. The City continued to assist
Bickford’s efforts and provided organizational support for the
parade. In early 2006, Pawlowski assigned Smith to work with
Bickford to coordinate that year’s parade. Bickford became
unwilling to cooperate with City personnel and announced a
date for the parade that was earlier than usual, without first
informing or receiving approval from the City. Smith testified
that in response he “did nothing, other than maybe sen[ding] a
memo down to the Mayor’s office, saying that this was the date
[Bickford] had picked.” (App. at 63a.)
6
that he did not fulfill them within the time allotted under
Guigere’s plan. Dougherty discovered that during Smith’s2
tenure, the number of rounds played at the municipal golf course
had declined and control of the City’s Halloween parade had
been ceded to a private citizen who was running it with minimal
oversight from the Recreation Bureau. After reviewing Smith’s3

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performance Dougherty concluded that “Smith did not have the
skill sets” to implement the City’s vision for its recreation
programming. (App. at 201a.)
Dougherty recommended to Pawlowski that Smith be
discharged. Pawlowski reviewed Dougherty’s recommendation
and soon agreed with Dougherty’s assessment. In addition to
the problems identified by Dougherty, Pawlowski knew his
office had received complaints that the golf course was poorly
managed and that Smith had not developed new golf
programming to promote the course. Dougherty testified that he
met with Pawlowski in late June 2006 to discuss Smith’s
employment status and that, at the close of that meeting,
Pawlowski instructed him to terminate Smith’s employment.
Prior to formally terminating Smith, Pawlowski and Dougherty
consulted the City Solicitor and Assistant Solicitor as well as
Sonya Stephens, a representative from the City’s Human
Resources Department (“HR”). All three individuals advised
against the termination. Pawlowski and Dougherty nevertheless
decided to proceed with the firing.
During a one-on-one meeting with Smith on July 24,
2006, Dougherty informed him that he lacked the skills
necessary to perform his employment duties effectively and that
he was being given the option to resign or retire. According to
Smith, Dougherty observed that Smith’s fifty-fifth birthday and
his employment anniversary, which occurred respectively on
August 2 and October 2, were approaching and that Pawlowski
wanted to receive Smith’s resignation by that birthday but no
later than the anniversary date.

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Following that conversation, Smith prepared a letter
describing his accomplishments as Superintendent of the
Recreation Bureau, stating that he was not a political enemy of
Pawlowski, and requesting that Pawlowski reconsider his
termination. Pawlowski reviewed the letter but declined to
reconsider. Smith tendered his resignation, effective October
19, 2006. The City subsequently hired Carl Bruno, who at the
time was thirty-six years of age, to replace Smith. Bruno served
as Superintendent of the Recreation Bureau for six months, after
which he was replaced by Kevin Easterling, then forty-two years
of age.
HR representative Stephens testified that she was never
formally apprised of Smith’s termination and that she discovered
it through happenstance, though she could not recall precisely
how she learned of it. She further explained that, in her opinion,
the firing was unwarranted and that conducting a termination
meeting without the involvement of an HR representative was
unusual.
B. Procedural History
On October 16, 2007, Smith commenced the present
lawsuit. Smith complained that, when terminating his
employment, Pawlowski and the City of Allentown
discriminated against him on the basis of his age, in violation of
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621-34, and on the basis of his political affiliation, in
violation of his First Amendment rights. Smith claimed that
Dougherty’s reference to his birthday during the termination
meeting revealed age-based animus, and he contended that

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Stephens’s characterization of his discharge as unusual and
unwarranted supported his claim. He further asserted that his
having a pro-Heydt campaign sign in his yard during the
November 2005 election together with Spang’s “political
enemy” comment provided evidence that he was fired due to his
affiliation with the Republican party. Mayor Pawlowski and the
City responded that Smith was terminated not because of his age
or political affiliation but because he lacked the skills to lead the
Recreation Bureau effectively.
With respect to the age discrimination claim, the District
Court found that Smith failed to proffer evidence from which a
reasonable jury could conclude that defendants’ proffered
rationale for terminating him was a pretext for age
discrimination. Addressing the political affiliation claim, the
Court found that Smith’s testimony regarding Spang’s “political
enemy” comment constituted inadmissible hearsay that could
not be considered on summary judgment. Because Smith could
not identify an alternate source of Pawlowski’s alleged political
enmity toward him, the Court concluded that Smith lacked
admissible evidence that Pawlowski considered Smith a political
adversary. It therefore entered summary judgment for
Pawlowski and the City on all claims. This timely appeal
followed.

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The District Court exercised federal question4
jurisdiction over Smith’s claims under 28 U.S.C. § 1331. We
have appellate jurisdiction over the final decision of the District
Court under 28 U.S.C. § 1291.
10
II. Discussion4
Smith appeals the District Court’s grant of summary
judgment on both his ADEA and First Amendment claims. We
exercise plenary review over an appeal from a grant of summary
judgment. Jacobs Constructors, Inc. v. NPS Energy Servs., Inc.,
264 F.3d 365, 369 (3d Cir. 2001). 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. Id.
(citing FED. R. CIV. P. 56(c)). “In making this determination, we
must consider the evidence in the record in the light most
favorable to the nonmoving party.” Id.
A. Age Discrimination
The District Court disposed of Smith’s age discrimination
claim under the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 742 (1973), which we have
applied to ADEA claims. See Keller v. Orix Credit Alliance,
Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (describing the prima
facie showing that a plaintiff must make under McDonnell
Douglas, as applied to an ADEA claim). Under McDonnell
Douglas, the plaintiff bears the burden of proof and the initial
burden of production, having to demonstrate a prima facie case
of discrimination by showing first, that the plaintiff is forty

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years of age or older; second, that the defendant took an adverse
employment action against the plaintiff; third, that the plaintiff
was qualified for the position in question; and fourth, that the
plaintiff was ultimately replaced by another employee who was
sufficiently younger to support an inference of discriminatory
animus. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370
(3d Cir. 2004). Once the plaintiff satisfies these elements, the
burden of production shifts to the employer to identify a
legitimate non-discriminatory reason for the adverse
employment action. Keller, 130 F.3d at 1108. If the employer
does so, the burden of production returns to the plaintiff to
demonstrate that the employer’s proffered rationale was a
pretext for age discrimination. Starceski v. Westinghouse Elec.
Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995). At all times,
however, the burden of persuasion rests with the plaintiff. Id.
Before the District Court in this matter, the parties
stipulated that Smith possessed sufficient evidence to establish
a prima facie case and that Smith’s allegedly substandard job
performance provided appellees with a legitimate,
nondiscriminatory rationale for his termination. Thus, the
District Court addressed only whether Smith had adduced
evidence from which a reasonable jury could conclude that
appellees relied upon his job performance as a pretext for age
discrimination. Smith predicated his allegations of age
discrimination upon several things: first, Dougherty’s reference
to Smith’s birthday and anniversary date during the meeting at
which they discussed Smith’s termination; second, the
recommendations of Stephens, the City Solicitor, and the
Assistant Solicitor that Smith not be discharged; and, third, the
City’s progressive discipline policy, which appellees allegedly

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failed to utilize prior to discharging him. He also argued that
Dougherty, as a recent political appointee from outside the
Allentown area, lacked sufficient knowledge about Smith’s job
performance to reach an informed decision about whether to
recommend termination. The Court concluded that such
evidence did not cast doubt upon the performance-related
reasons that appellees proffered for Smith’s discharge. The
Court therefore granted summary judgment to appellees on
Smith’s ADEA claim.
After the District Court rendered its ruling, the Supreme
Court decided Gross v. FBL Financial Services, 129 S. Ct. 2343
(2009), which considered whether the burden-shifting
framework established by Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), is available to plaintiffs in age discrimination
cases. Gross, 129 S. Ct. at 2348-49. Price Waterhouse, decided
under Title VII of the Civil Rights Act of 1964, determined that,
if the defendant initiated an allegedly adverse employment
action as the result of both permissible and impermissible
motives, the burden of persuasion shifts to the defendant to
demonstrate that it would have taken the adverse action
notwithstanding the improper motive. 490 U.S. at 244-25;
Watson v. Se. Pa. Trans. Auth., 207 F.3d 207, 215 (3d Cir.
2000). This burden-shifting framework has become known as
the mixed-motive doctrine. Gross refused to apply Price
Waterhouse to ADEA claims for two reasons. First, the Court
found that shifting the burden of persuasion to an age
discrimination defendant is improper because the plain language
of the ADEA requires the plaintiff to prove that the defendant
took the adverse employment action “because of [the plaintiff’s]
age.” Gross, 129 S. Ct. at 2350-51 (quoting 29 U.S.C.

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§ 623(a)(1)). The Court construed this language as requiring
that the plaintiff prove but-for causation from the outset of an
ADEA case. Id. at 2351. Second—and more generally—the
Court expressed ambivalence about the utility of burden-shifting
in age discrimination claims. The Court noted that it had never
definitively applied McDonnell Douglas to ADEA claims,
Gross, 129 S. Ct. at 2349 n.2, and suggested that burden-
shifting, at least of the Price Waterhouse variety, has been
difficult to apply in practice and that its cumbersome nature has
“eliminated any perceivable benefit to extending its framework
to ADEA claims.” Id. at 2352.
Appellees argue that Gross renders McDonnell Douglas’s
burden-shifting inapplicable to ADEA cases and that we should
dispose of the instant appeal solely by inquiring whether Smith
would have retained his job but for the alleged age
discrimination. However, we may not depart from our prior
decisions applying McDonnell Douglas to age discrimination
cases unless those decisions are irreconcilable with Gross. See
Mennen Co. v. Atl. Mut. Ins. Co., 147 F.3d 287, 294 n.9 (3d Cir.
1998) (noting that a panel of the court may not overrule the
decisions of a prior panel unless the earlier disposition “is in
conflict with Supreme Court precedent”). While we recognize
that Gross expressed significant doubt about any burden-shifting
under the ADEA, we conclude that the but-for causation
standard required by Gross does not conflict with our continued
application of the McDonnell Douglas paradigm in age
discrimination cases.
Gross stands for the proposition that it is improper to
shift the burden of persuasion to the defendant in an age

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discrimination case. McDonnell Douglas, however, imposes no
shift in that particular burden. McDonnell Douglas provides
that, once the employee establishes a prima facie case, the
burden of production (i.e., of going forward) shifts to the
employer to articulate a legitimate, nondiscriminatory reason for
the employer’s adverse employment decision. McDonnell
Douglas, 411 U.S. at 802. If the employer makes that showing,
the burden of production shifts once again to the employee to
establish that the employer’s proffered justification for the
adverse action is pretextual. Tex. Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 254-55 (1981). Throughout this burden-
shifting exercise, the burden of persuasion, “including the
burden of proving ‘but for’ causation or causation in fact,
remains on the employee.” Starceski, 54 F.3d at 1095 n.4 (3d
Cir. 1995) (citing Burdine, 450 U.S. at 253). Hence, Gross,
which prohibits shifting the burden of persuasion to an ADEA
defendant, does not forbid our adherence to precedent applying
McDonnell Douglas to age discrimination claims. Decisions of
our sister circuits are in accord. See, e.g., Liebowitz v. Cornell
Univ., --- F.3d ----, 2009 WL 3403147, at *8 n.2 (2d Cir. Oct.
23, 2009) (applying McDonnell Douglas while recognizing that
Gross requires the plaintiff to prove that age was the but-for
cause of the defendant’s adverse employment action); Geiger v.
Tower Auto., 579 F.3d 614, 622 (6th Cir. 2009) (holding that,
following Gross, “the McDonnell Douglas framework can still
be used to analyze ADEA claims based on circumstantial
evidence”). We have therefore evaluated Smith’s age
discrimination claim pursuant to McDonnell Douglas to see
whether he produced sufficient evidence to establish that
appellees’ proffered rationale for terminating him was a pretext
for age-based discrimination.

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We conclude that Smith has failed to carry that burden.
He exhibited performance problems as early as 2002, when
Pawlowski, then director of community and economic
development, noted complaints that Smith and two other
directors had neglected to maintain the City’s swimming pools.
In late 2004, Guigere gave Smith a series of performance goals,
which it is undisputed Smith failed to accomplish. When
Dougherty reviewed Smith’s performance in early 2006, he was
concerned with problems involving the golf course, youth
sports, and the annual Halloween parade.
Smith nevertheless claims that Pawlowski unlawfully
discriminated against him because of his age and that the proof
of discrimination is, first, that Pawlowski wanted Smith to
resign by Smith’s birthday; second, that no one from HR
participated in his termination meeting; and third, that the City
did not progressively discipline him before ending his
employment. None of these pieces of evidence would cause a
reasonable jury to find that appellees acted with discriminatory
intent when they terminated Smith.
Smith has produced no evidence that Dougherty
referenced Smith’s fifty-fifth birthday for any reason other than
providing a timetable for his resignation. In fact, Smith
conceded that Dougherty could have referenced his birthday to
ensure that he received an increase in his retirement benefits,
which became fully accessible to Smith only when he turned
fifty-five. Smith acknowledged that, aside from Dougherty’s
comment, he had no reason to believe that Pawlowski
considered his age when deciding to terminate his employment.
Dougherty’s lack of personal knowledge about Smith’s job

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Smith’s opening brief asserts that City of Allentown5
Regulation No. 6-4-01 imposes a mandatory progressive
disciplinary structure, but none of the materials he cites in
support of this averment contain the text of the policy or a
description of the disciplinary framework it allegedly imposes.
Absent such evidence, Smith’s contention that he should have
been disciplined instead of terminated cannot stand.
16
performance is likewise immaterial. It is undisputed that
Dougherty perused Smith’s personnel file, discussed Smith’s
performance with Guigere, and consulted with Pawlowski in
formulating his recommendation that Smith be terminated.
Thus, it appears that Dougherty issued his recommendation
based upon a thorough review of Smith’s performance history
with the City of Allentown. Moreover, while the City Solicitor,
Assistant Solicitor, and Stephens recommended against Smith’s
termination, that recommendation was not binding on
Pawlowski, who possessed final decision-making authority to
retain or discharge at-will employees. Lastly, Smith has
produced no evidence that the City had a mandatory progressive
disciplinary policy or that the defendants deviated from any such
policy.5
Smith clearly received notice of his deficient
performance when Guigere established performance goals for
his Bureau, if not sooner. Smith further acknowledged that he
was an at-will employee and that he understood the City could
terminate his employment at any time. Under these
circumstances, no reasonable jury could agree that appellees
terminated Smith on the basis of age discrimination.

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The shift of that burden derives from Mt. Healthy City6
School District Board of Education v. Doyle, 429 U.S. 274
(1977), in which the Supreme Court imposed a shift in the
burden of persuasion to the defendant in cases where a plaintiff
demonstrates that he has engaged in protected conduct and that
his exercise of free speech rights was a motivating factor in an
adverse action by the defendant against him. Id. at 287. We
have applied the same burden-shift in cases that implicate
17
Accordingly, the District Court properly granted summary
judgment in appellees’ favor on his ADEA claim.
B. Discrimination Based on Political Affiliation
To succeed on a discrimination claim based on political
affiliation, a public employee must make a prima facie showing
that “(1) that the employee works for a public employer in a
position that does not require a political affiliation, (2) that the
employee maintained a political affiliation, and (3) that the
employee’s political affiliation was a substantial or motivating
factor in the adverse employment decision.” Hill v. Borough of
Kutztown, 455 F.3d 225, 243 (3d Cir. 2006). Once the plaintiff
establishes a prima facie case, the defendant may “avoid a
finding of liability by proving by a preponderance of the
evidence that the same employment action would have been
taken even in the absence of the protected activity.” Galli v.
N.J. Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007)
(quoting Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir.
1997)). There is, in other words, a shift in the burden of
persuasion.6

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retaliation or discrimination based on political affiliation. See
Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir. 1984)
(applying the Mt. Healthy burden-shifting framework to
discrimination claims based on political affiliation).
18
In the present matter, Smith has established the first two
elements of his prima facie case. With regard to the third
element, he cited the following evidence as proof that his firing
was motivated by his political affiliation: first, the pro-Heydt
campaign sign that he placed on his yard during the November
2005 election; second, his alleged reputation as a Heydt
supporter; third, Spang’s statement that Smith ran the 2005
SportsFest in a manner that favored Heydt’s campaign; and
fourth, Spang’s alleged comment that Pawlowski considered
Smith a political enemy.
The available facts, however, do not support an inference
that Pawlowski or Dougherty discriminated against Smith on the
basis of political affiliation. As to his yard-sign and alleged
reputation as a Heydt supporter, Smith has not adduced evidence
that Pawlowski or Dougherty knew about either. Dougherty did
not even reside in the Allentown area at the time of the 2005
mayoral election, and Pawlowski testified that he did not know
where Smith lived. As to Smith’s handling of the 2005
SportsFest, it is undisputed that Spang never mentioned his
concerns in that regard to anyone other than Smith, and nothing
in the record suggests that Pawlowski was aware of Spang’s
concern or shared his opinions.

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Finally, the District Court refused to consider Smith’s
testimony about Spang’s “political enemy” comment on hearsay
grounds. Hearsay statements that would be inadmissible at trial
may not be considered for purposes of summary judgment. Cf.
Shelton v. Univ. of Med. & Dentistry of N.J., 223 F.3d 220, 223
at n.2 (3d Cir. 2000) (“In this circuit, hearsay statements can be
considered on a motion for summary judgment if they are
capable of admission at trial.”). Smith’s testimony is double
hearsay because it describes a statement that Spang made to
Smith about a conversation that Pawlowski allegedly had with
Spang. Thus, for the “political enemy” comment to be
considered on summary judgment, Smith must demonstrate that
both layers of hearsay would be admissible at trial. See FED. R.
EVID. 805 (“Hearsay included within hearsay is not excluded
under the hearsay rule if each part of the combined statements
conforms with an exception to the hearsay rule ... .”). If, as
Smith alleges, Pawlowski informed Spang that Pawlowski
considered Smith a political adversary, that statement would
qualify as an admission by a party opponent and would be
admissible under Rule 801(d)(2)(A) of the Federal Rules of
Evidence. However, Smith offers Spang’s repetition of that
alleged statement for the truth of the matter asserted (i.e., that
Pawlowski considered him a political threat). Spang’s repetition
is itself therefore hearsay, and it appears to be beyond the reach
of any exception to the hearsay rule. Despite aggressive cross-
examination, Spang disavowed any recollection of
characterizing Smith as a political enemy of Pawlowski. Thus,
Smith has failed to demonstrate that Spang could testify about
the substance of the “political enemy” comment at trial, leaving
Smith without admissible evidence of Pawlowski’s alleged
sentiment. Without such evidence, the District Court properly

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refused to consider the “political enemy” comment for summary
judgment purposes.
To sum up, the only admissible evidence Smith possesses
that appellees discharged him based on his political affiliation
involves speculation about a yard sign and SportsFest. Smith
has produced no evidence that Pawlowski knew of the yard sign
or of Spang’s SportsFest concerns. Absent such knowledge, no
reasonable jury could conclude that discriminatory animus lay
behind Smith’s termination. The District Court thus did not err
by entering summary judgment in defendants’ favor on Smith’s
First Amendment discrimination claim.
III. Conclusion
Smith has failed to produce evidence that his allegedly
inadequate job performance was a pretext for unlawful
discrimination of any kind. Accordingly, we will affirm the
judgment of the District Court.

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