Opinions of the United 1995 Decisions States Court of Appeals for the Third Circuit
12-14-1995
Brewer v. Quaker State Oil Rfng. Corop. Precedential or Non-Precedential:
Docket 95-3101
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No. 95-3101
JUDSON C. BREWER, Appellant v.
QUAKER STATE OIL REFINING CORPORATION; QUAKER STATE CORPORATION
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 93-cv-00072E)
Argued October 19, 1995 BEFORE: SCIRICA, COWEN and ROTH, Circuit Judges
(Filed December 14, 1995)
Samuel J. Cordes (argued) Ogg, Jones, DeSimone & Ignelzi 245 Fort Pitt Boulevard Pittsburgh, PA 15222
COUNSEL FOR APPELLANT Judson C. Brewer
Peter D. Post (argued) Robert B. Cottington Reed, Smith, Shaw & McClay 435 Sixth Avenue Pittsburgh, PA 15219-1886
COUNSEL FOR APPELLEE Quaker State Oil Refining Corporation; Quaker State Corporation
Robert J. Gregory Room 7032 Equal Employment Opportunity Commission 1801 L Street, N.W.
1 Washington, D.C. 10507
COUNSEL FOR AMICUS-APPELLANT Equal Employment Opportunity Commission
OPINION
COWEN, Circuit Judge.
Plaintiff-appellant Judson C. Brewer appeals the
district court's grant of summary judgment in favor of his
employer, Quaker State Oil Refining Corporation and Quaker State
Corporation ("Quaker State"), on Brewer's Age Discrimination in
Employment Act ("ADEA") claim, 29 U.S.C. § 623 (1988), and the
dismissal of his pendent state-law claim brought under Michigan's
anti-discrimination statute, the Elliott-Larsen Civil Rights Act,
Mich. Comp. Laws § 37.2101-2804. Because the record reflects a
genuine issue of material fact regarding whether Quaker State's
asserted nondiscriminatory reasons for discharging Brewer are
pretextual, we will reverse the district court's entry of summary
judgment in favor of Quaker State and remand the matter for
further proceedings.
I.
Brewer worked for Quaker State as a sales
representative from 1968 until the time of his discharge in March
1992, at the age of fifty-three. He worked in the Pittsburgh
office until it closed in 1989. During the course of his
employment in Pittsburgh, Brewer was supervised by two different
division managers, Bruce Drummond and Michael O'Donnell. During
2 their respective tenures, both Drummond and O'Donnell encountered
certain problems with Brewer's performance. For example,
Drummond stated that Brewer's clients complained that they had
run out of oil or had not seen their sales representative in some
time. In January 1989, O'Donnell placed Brewer on a ninety-day
probation for similar performance deficiencies, including
customer complaints about running out of oil, poor follow-up with
projects, inaccurate and incomplete paperwork, short work days,
and lack of organization. Shortly after Brewer completed his
probationary period, he was transferred to the Detroit division.
District Manager Paul Pfauser supervised Brewer in
Detroit. In 1990 Pfauser gave Brewer acceptable performance
ratings, but criticized him for poor planning. Pfauser advised
Brewer that he needed to work more closely with his client
accounts and set higher standards for himself. At the end of
1990 Brewer received a sales bonus for exceeding the company's
sales quota for that year.
In May 1991, shortly before his second annual review
under Pfauser's supervision, Pfauser notified Brewer that various
facets of his performance required improvement. Pfauser
counseled Brewer to be more efficient, to follow-up with requests
both from his customers and from management, and to improve the
timeliness and completeness of his sales reports. In his formal
evaluation in June 1991, Brewer received marginal or unacceptable
ratings in all categories.
In August 1991, Brewer was placed on a ninety-day
probation for his performance deficiencies. At that time,
3 Pfauser criticized Brewer for performing poorly in the areas of
client communications and organization. In December 1991, Brewer
again exceeded the company's sales quota and received another
bonus. Brewer was the only salesperson in the Detroit region to
receive such a bonus for both 1990 and 1991.
Brewer's personnel file for the years prior to 1990 was
lost. However, it is not disputed that Brewer's mean performance
evaluation rating from 1987 through 1990 was "3" out of a
possible "5", which translates into "competent" by Quaker State's
performance standards. Factoring in his evaluation for 1991,
Brewer's overall average for 1987 to 1991 was 2.9.
At the end of the ninety-day probation, Pfauser
repeated his concerns that Brewer was spending too little time in
his territory and not adequately communicating with customers. At
this time Brewer's probationary period was extended for an
additional sixty days. On February 18, 1992, Pfauser wrote a
memorandum to Brewer documenting performance problems, including
Brewer's misprocessing orders, and failure to advise his accounts
of credit problems.
Brewer challenged Pfauser's appraisal, commenting that
his performance had improved. Brewer also has claimed that
Pfauser was "nitpicking," and that the problems were the result
of petty misunderstandings, or were not really problems at all.
Nonetheless, in the days that followed the February 18, 1992
memorandum, Pfauser sought and obtained approval to terminate
Brewer's employment. Brewer was discharged on March 9, 1992, and
4 this lawsuit ensued. The district court granted summary judgment
against Brewer.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 to
review the final order of the district court, which exercised
jurisdiction under 29 U.S.C. § 626(c)(1), 28 U.S.C. §§ 1331 and
1343(a)(4), and supplemental jurisdiction pursuant to 28 U.S.C.
§1367.
On review of a district court's grant of summary
judgment, we apply the same test the district court should have
applied initially. Sempier v. Johnson & Higgins, 45 F.3d 724,
727 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995). Summary
judgment is appropriate only when the admissible evidence fails
to demonstrate a genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). When the nonmoving party bears the burden of
persuasion at trial, the moving party may meet its burden on
summary judgment by showing that the nonmoving party's evidence
is insufficient to carry its burden of persuasion at trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53 (1986). Thereafter, the nonmoving party creates a
genuine issue of material fact if it provides sufficient evidence
to allow a reasonable jury to find for him at trial. Anderson v.
Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510
(1986). In reviewing the record, the court must give the
nonmoving party the benefit of all reasonable inferences.
5 Sempier, 45 F.3d at 727; Colgan v. Fisher Scientific Co., 935
F.2d 1407, 1413 (3d Cir.), cert. denied, 502 U.S. 941 (1991).
III.
The ADEA prohibits age discrimination in employment
against any person over age forty. 29 U.S.C. § 623(a)(1).
Because the prohibition against age discrimination contained in
the ADEA is similar in text, tone, and purpose to that contained
in Title VII, courts routinely look to law developed under Title
VII to guide an inquiry under ADEA. See, e.g., Maxfield v.
Sinclair Int'l, 766 F.2d 788, 791 (3d Cir. 1985), cert. denied,
474 U.S. 1057 (1986). We follow the evidentiary framework first
set forth by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), subsequently refined
in Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S. Ct. 1089 (1981), and recently clarified in St. Mary's
Honor Center v. Hicks, __ U.S. __, 113 S. Ct. 2742 (1993).
In order to establish a prima facie case, Brewer must
show that he: (1) is over 40; (2) is qualified for the position
in question; (3) suffered an adverse employment decision; and (4)
was replaced by a sufficiently younger person to permit an
inference of age discrimination. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995).
This showing creates a presumption of age discrimination that the
employer can rebut by stating a legitimate nondiscriminatory
reason for the adverse employment decision. Hicks, __ U.S. at __, 113 S. Ct. at 2747; Sempier, 45 F.3d at 728. The plaintiff
6 then has the opportunity to demonstrate that the employer's
stated reason was not its true reason, but merely a pretext for
discrimination. Hicks, __ U.S. __, 113 S.Ct. at 2747; Sempier,
45 F.3d at 728.
A.
The district court held that the disposition of this
case turned on the third stage of the McDonnell Douglas
analytical framework because Brewer had established a prima facie
case of age discrimination, and Quaker State had articulated non-
discriminatory reasons for Brewer's discharge. Brewer v. Quaker
State Oil Ref. Corp., 874 F. Supp. 672, 681-82 (W.D. Pa. 1995).
We agree with the district court's analysis up to this point. It
is undisputed that Brewer is a member of a protected class, was
discharged by Quaker State, and was replaced by an individual not
within the protected class. Moreover, Brewer was qualified for
the position of sales representative. He worked as a Quaker
State sales representative for twenty-three years. During his
last five years on the job, he received overall evaluations that
translated into "competent" by Quaker State's performance
standards. Accordingly, Brewer has established a prima facie case of age discrimination.
Quaker State has also established legitimate, non-
discriminatory reasons for terminating Brewer's employment.
Pfauser documented continuous performance problems, including
poor follow-up on customer requests, poor communications with
7 clients and with management, too little time spent in his
territory, and late and ambiguous sales reports.
B.
We must next determine whether Brewer has met his
burden of demonstrating that a factfinder could find that the
allegedly legitimate reasons proffered for his discharge were
only a pretext for discrimination in order to survive Quaker
State's motion for summary judgment. To defeat a summary
judgment motion based on a defendant's proffer of
nondiscriminatory reasons, a plaintiff who has made a prima facie
showing of discrimination need point to some evidence, direct or
circumstantial, from which a factfinder could reasonably either:
(1) disbelieve the employer's articulated legitimate reason; or
(2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the
employer's action. Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d
Cir. 1994). The factfinder may infer from the combination of the
plaintiff's prima facie case, as well as its own rejection of the
employer's proffered nondiscriminatory reason, that the employer
unlawfully discriminated against the plaintiff and was merely
trying to conceal its illegal act with the articulated reason.
See Hicks, __ U.S. at __, 113 S. Ct. at 2749. Thus, if the
plaintiff has pointed to evidence sufficient to discredit the
defendant's proffered reason, to survive summary judgment the
plaintiff need not also come forward with additional evidence of
8 discrimination beyond his or her prima facie case. Fuentes, 32
F.3d at 764.
To discredit the employer's proffered reason, the
plaintiff cannot simply show that the employer's decision was
wrong or mistaken, since the factual dispute at issue is whether
a discriminatory animus motivated the employer, not whether the
employer is "wise, shrewd, prudent, or competent." Fuentes, 32
F.2d at 765 (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen,
983 F.2d 509, 533 (3d Cir.), cert. denied, __ U.S. __, 114 S. Ct.
88 (1993)). Rather, the nonmoving plaintiff must demonstrate
such "weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer's proffered
legitimate reason for its action that a reasonable factfinder
could rationally find them unworthy of credence, and hence infer
that the employer did not act for [the asserted] non-
discriminatory reasons." Fuentes, 32 F.3d at 765 (citations and
internal quotations omitted.). See Ezold, 983 F.2d at 527
("plaintiff has the burden of casting doubt on an employer's
articulated reasons for an employment decision")(quoting Billet v. Cigna Corp., 940 F.2d 812, 828 (3d Cir. 1991).
Brewer has challenged Quaker State's asserted reasons
for his discharge. First, Brewer's own testimony disputed the
significance of the problems raised by Pfauser. While Brewer
challenged the extent and degree of his deficiencies rather than
their existence, Brewer testified to specific examples of
Pfauser's errant or misplaced criticisms. Such evidence amounts
to more than his subjective opinion of his performance. Second,
9 Brewer provided evidence that he had succeeded in selling oil for
nearly twenty-five years in the employ of Quaker State, and for
the last five years, he was rated "fully acceptable" by Quaker
State in his evaluations. Third, Brewer provided evidence that
he received a bonus for surpassing his sales quota in 1990 and
1991, and was the only salesperson in the Detroit region to
exceed his or her sales quota for those years.
The district court discounted this evidence, reasoning
that Brewer cannot pick and choose which employment standard he
will meet. The district court reasoned that "although
plaintiff's average numerical rating and sales bonus may be
somewhat contradictory with the fact of his termination, the
court does not believe that they give rise to such 'weaknesses,
implausibilities, inconsistencies, incoherences, or
contradictions' in Quaker State's explanation that a reasonable
factfinder could rationally find the explanation unworthy of
credence." Brewer, 874 F. Supp. at 682. We disagree that the
"somewhat contradictory" evidence does not demonstrate a triable
issue of fact. On summary judgment, it is not the court's role
to weigh the disputed evidence and decide which is more
probative. Sempier, 45 F.3d at 731. The fact that Brewer
received a bonus three months before he was fired and was the
only sales representative in the Detroit region who received such
a bonus is contradictory to Quaker State's admission that the
most important standard of job performance is sales.
Quaker State's Executive Vice President of Sales,
William Marshall, stated that sales volume is "extremely
10 important in evaluating a salesperson," and represents "the best
simple measure" of a salesperson's performance. App. at 200,
203. Quaker State's counsel also acknowledged this fact at oral
argument before this court. Indeed, the volume of sales may
always be the primary measure of a salesperson's performance. See
Kiliszewski v. Overnite Transp. Co., 818 F. Supp. 128, 132 (W.D.
Pa. 1993) (evidence that a person performed well in the
traditional role of salesperson precluded summary judgment
despite employer's claim that the plaintiff suffered from
efficient time-management deficiencies). To segregate job
performance into the neat categories of sales and organizational
skills defies the reality of the role of a salesperson in a
company.
We recognized that an employer may have any reason or
no reason for discharging an employee so long as it is not a
discriminatory reason. [W]e do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high- handed its decisional process, no matter how mistaken the firm's managers, the ADEA does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.
McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir. 1992) (citations and internal quotations omitted). An
employer may have a legitimate reason for firing an employee that
has nothing to do with that employee's performance of the core
functions of his or her job. Nonetheless, our role is to
determine whether a factfinder could reasonably find that the
11 employer's stated reason is unworthy of credence. In this case,
Brewer's deficiencies pale beside his consistently good sales
performance, inexplicably unaccounted for in his supervisor's
negative evaluations. A factfinder could find it implausible
that Quaker State would have fired Brewer for such deficiencies
when he was successful in the sole area identified by Quaker
State's own performance incentive program -- sales.
In Ezold, 983 F.2d at 509, we held that a district
court had erred in finding that the employer's explanation for
denying a promotion to the plaintiff was pretextual. The
employer claimed that it had denied partnership to the plaintiff
because of her deficiencies in the area of legal analysis. There
was no question that the plaintiff suffered from serious
shortfalls in that area, although she had demonstrated success in
other areas of the job. It was also clear that the employer
considered legal analysis to be the critical category of
performance review. The district court had questioned the wisdom
of the employer's partnership standards, and we held that "[i]t
was not for the district court to determine that Ezold's skills
in areas other than legal analysis made her sufficiently
qualified for admission to the partnership." Id. at 528. This
case is distinguishable on its facts. In Ezold, the plaintiff
suffered deficiencies in the one area deemed critical by the
employer. Here, in contrast, Brewer had some problems in a few
aspects of the job. Yet, he performed well in the one area
deemed by Quaker State to merit a performance bonus. This raises
12 genuine issues about the credence of Quaker State's performance-
based explanation.
It is also questionable why a company would fire the
only salesperson to receive consecutive annual bonuses in
response to the same organizational deficiencies that the
employer had tacitly accepted for over two decades. During the
twenty-three years that Brewer worked for Quaker State, he
consistently sold a high volume of oil despite the repeated
criticisms of other aspects of his job performance. It was not
until late in his career that Quaker State turned the criticisms
of Brewer's performance into the basis for adverse action. A
reasonable factfinder could view Quaker State's belated reliance
on these criticisms as evidence that tends to show pretext. See
Levin v. Analysis & Technology, Inc., 960 F.2d 314, 317 (2d Cir.
1992) (employer's claim that plaintiff was terminated because of
his "poor attitude" did not provide a basis for summary judgment
where there was evidence that plaintiffs' "irascible nature had
for many years been accepted by his co-workers and superiors");
Giacoletto v. Amax Zinc Co., 954 F.2d 424, 426-27 (7th Cir. 1992)
(evidence supported a finding of pretext despite employer's claim
that the plaintiff had "poor interpersonal skills as a manager"
where the plaintiff "had been kept on as a supervisor for 14
years despite his abrasive personality and because of his ability
to produce"); Blalock v. Metals Trades, Inc., 775 F.2d 703, 709 (6th Cir. 1985) (fact that the employer had legitimate concerns
with the plaintiff's performance at the time of his discharge was
not determinative where that "same level of performance" had been
13 acceptable to the employer until its consideration of a protected
criterion). Brewer's testimony disputing the significance of the
alleged problems, his twenty-three years of consistently good
sales performance and recent merit bonuses cast sufficient doubt
on Quaker State's contention that Brewer was discharged because
of poor job performance in areas which the company had long
overlooked or tolerated.0
Brewer has also provided evidence that in August of
1991, Wanda Weaver, Quaker State's personnel manager, wrote a
memorandum to Pfauser summarizing Brewer's performance for the
last fifteen years. In the memorandum Weaver noted that "Judd is
53 years old, which presents another problem." App. at 24. The
district court determined that this statement merely indicated
Weaver's awareness that, if terminated, Brewer may file an age
discrimination suit. Although the jury may very well conclude
that this remark merely reflects an awareness of Quaker State's
legal obligations, the statement is also subject to competing
interpretations. Another reasonable interpretation is that
Brewer's age was a "problem" for Quaker State. On summary
0 The dissent states that Brewer has "done nothing to rebut" Quaker State's proffered non-sales reasons for firing him. Dissent Typescript at 5. The dissent has overlooked evidence of Brewer's testimony in which he related specific examples of his supervisor's errant or misplaced criticisms. Such evidence amounts to more than his subjective opinion of his job performance. Of course, unrefuted evidence was also presented that Brewer's past performance for twenty years was identical to that for which he was fired. It was not until late in his career that the criticisms of Brewer's performance were turned into reasons for his termination. This evidence goes directly to discrediting Quaker State's non-sales related reasons for firing Brewer.
14 judgment, we must draw all reasonable inferences in favor of the
nonmoving party. Drawing the inference in Brewer's favor,
Weaver's statement tends to show a discriminatory animus. In
viewing the record as a whole, as we must, we conclude that the
statement is probative, and should be submitted for a jury's
consideration.
Brewer next produced evidence that in March 1990, Jack
Corn, Chief Executive Officer of Quaker State, discussed two new
executives in the company newsletter. He stated, "two of our
star young men in their mid-40s. That age group is our future."
App. at 26-27. Brewer asserts that this remark is circumstantial
evidence of Quaker State's preference for younger workers. The
district court determined that Corn's statement was a "stray
remark, unconnected with and remote from the decision-making
process which resulted in Brewer's discharge." Brewer, 874 F.
Supp. at 683.
We have held that stray remarks by non-decisionmakers
or by decisionmakers unrelated to the decision process are rarely
given great weight, particularly if they were made temporally
remote from the date of the decision. Ezold, 983 F.2d at 545. We
agree with the district court that the Corn statement is a "stray
remark" made by a non-decisionmaker and temporally remote from
the decision to terminate Brewer. The comment was made almost
two years before Brewer's March 1992 termination. Brewer's
supervisor testified that he could not recall ever seeing or
hearing Corn's statement, and there is no evidence of a causal
link between Corn's statement and Brewer's termination.
15 Though the Corn statement should not be given
significant or commanding weight, at trial, it may provide some
relevant evidence of discrimination. We have held that a
supervisor's statement about the employer's employment practices
or managerial policy is relevant to show the corporate culture in
which a company makes its employment decision, and may be used to
build a circumstantial case of discrimination. See Abrams v.
Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995)
(discriminatory statements by nondecisionmakers properly used to
build a circumstantial case of discrimination); Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989) (same);
see also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641
(3d Cir. 1993) (court may consider as circumstantial evidence the
atmosphere in which the company made its employment decisions).
Corn's statement may be used as evidence of managerial
policy. The remark was not an off-hand comment made by a low-
level supervisor. Rather, the comment was made by the Chief
Executive Officer in a written newsletter. "When a major company
executive speaks, 'everybody listens' in the corporate hierarchy,
and when the executive's comments prove to be disadvantageous to
a company's subsequent litigation posture, it cannot
compartmentalize this executive as if he had nothing more to do
with company policy than the janitor or watchman." Lockhart, 879 F.2d at 54.
Quaker State claims that Corn's statement should not be
considered evidence at all because it is too innocuous. The
statement that the mid-40's age group is the company's future may
16 indeed be considered a truism -- the future of any business lies
with its relatively young employees. See, e.g., Smith v. Flax,
618 F.2d 1062, 1066 (4th Cir. 1980) (statement that "future lay
in the employer's young Ph.D's" was a truism, and not evidence of
age discrimination.). Quaker State further asserts that praising
the youth does not indicate bias against more mature workers.
See, e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 826 (1st
Cir. 1991). cert. denied, 504 U.S. 985 (1992). While a
factfinder could find Corn's comment too abstract to evince age
discrimination, it may also be considered by the jury as evidence
of the corporate culture in which the employment decision to
discharge Brewer was made, and circumstantial evidence of age
discrimination. We conclude that the Corn statement is relevant
evidence of age discrimination.
IV.
Brewer next argues that the district court erred in
refusing to draw an adverse inference from Quaker State's
inability to produce Brewer's pre-1990 personnel file. The
general principles concerning the inferences to be drawn from the
loss or destruction of documents are well established. When the
contents of a document are relevant to an issue in a case, the
trier of fact generally may receive the fact of the document's
nonproduction or destruction as evidence that the party that has
prevented production did so out of the well-founded fear that the
contents would harm him. Gumbs v. International Harvester, Inc.,
17 718 F.2d 88, 96 (3d Cir. 1983); United States v. Charkasky Meat
Co., 259 F.2d 89 (3d Cir. 1958).
For the rule to apply, it is essential that the
evidence in question be within the party's control. Gumbs, 718
F.2d at 96. Further, it must appear that there has been an
actual suppression or withholding of the evidence. No
unfavorable inference arises when the circumstances indicate that
the document or article in question has been lost or accidentally
destroyed, or where the failure to produce it is otherwise
properly accounted for. See generally 31A C.J.S. Evidence
§156(2); 29 Am. Jur. 2d Evidence § 177 ("Such a presumption or
inference arises, however, only when the spoilation or
destruction [of evidence] was intentional, and indicates fraud
and a desire to suppress the truth, and it does not arise where
the destruction was a matter of routine with no fraudulent
intent.").
The district court found that the file was lost in
connection with the death of Quaker State's in-house attorney,
and was not destroyed intentionally. Quaker State's in-house
attorney died of a terminal illness after he took possession of
the file. Quaker State avers that it has continued to search for
the file, but to no avail. We cannot say the district court
applied the incorrect legal standard, nor were its factual
findings clearly erroneous. The destruction or failure to
produce the record could have been due to many reasons unrelated
to the lawsuit. See, e.g., Rogers v. Exxon Research & Eng'g Co., 550 F.2d 834, 843 (3d Cir. 1977) (refusing to draw an adverse
18 inference where destruction of a diary could have been unrelated
to the lawsuit), cert. denied, 434 U.S. 1022 (1978). The
district court properly refused to draw an adverse inference.
V.
Brewer has also brought an age discrimination claim
under the Michigan Civil Rights Act, Mich. Comp. Laws § 37.2101-
2804. The district court held that Brewer failed to establish a
prima facie case on his state law claim because he provided no
evidence that Pfauser, or any other decisionmaker at Quaker
State, was predisposed to discriminate against Brewer on the
basis of age. Brewer, 874 F. Supp. at 687.
The evidentiary burdens for proceeding on an age
discrimination claim under the Elliott-Larsen Civil Rights Act
are the same as those used in ADEA cases. McDonald v. Union Camp
Corp., 898 F.2d 1155, 1159 (6th Cir. 1990). However, in contrast
to federal law, under Michigan law a plaintiff may establish a
prima facie case by demonstrating that: (1) he is a member of the
affected class; (2) that some adverse employment action was taken
against him; (3) that the person responsible for this adverse
action was predisposed to discriminate against persons in the
affected class; and (4) that the person responsible actually
acted on this predisposition to plaintiff's detriment. Pitts v. Michael Miller Car Rental, 942 F.2d 1067, 1070 n.1 (6th Cir.
1991).
A plaintiff may also establish a prima facie case under Michigan law using the traditional federal law standard set forth
19 in McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.0 The
McDonnell Douglas standard has been adopted by the Michigan
Supreme Court. McDonald v. Union Camp Corp., 898 F.2d 1155,
1159-60 (6th Cir. 1990); Matras v. Amoco Oil Co., 385 N.W.2d 586,
590 (Mich. 1986). Therefore, Michigan law provides that
establishing a prima facie case of age discrimination varies with
differing factual situations, and the standard that best fits the
factual allegations should be applied. Matras, 385 N.W.2d at
590; Lytle v. Malady, 530 N.W.2d 135, 140 (Mich. Ct. App. 1995).
The district court erred in applying only the prima
facie standard set forth in Pitts, 942 F.2d at 1070, and not the
McDonnell Douglas standard, which more closely fits the facts of
this case. Accordingly, the district court's entry of summary
judgment on the state law claim will be reversed for the same
reasons that we will reverse the summary judgment entered on the
ADEA claim.
0 A prima facie case as applied in the age discrimination context requires a showing that the plaintiff: (1) was a member of a protected class; (2) was subjected to adverse employment action; (3) was qualified for the position; and (4) was replaced by a younger person.
ROTH, Circuit Judge, Dissenting: I respectfully dissent. I
cannot agree that Brewer's evidence of his sales performance
rebuts Quaker State's litany of specific reasons for termination
sufficiently to raise a genuine issue of material fact. I would
affirm the district court.0
Unlike the majority, I believe that the district court
analyzed the case properly and reached a correct result. In
particular, I disagree with the majority's rebuke that the
district court weighed disputed evidence. See Majority at
[typescript at 10]. I conclude that the district court, in
granting summary judgment, properly focussed on Quaker State's
articulated reasons for termination and determined that these
reasons were an adequate, non-discriminatory basis for discharge
even when considered along with Brewer's acknowledged sales
record.
Our summary judgment inquiry comes flows from the
Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S.
0 I have little quarrel with Parts I, II, III.A, or IV of the majority's opinion. I disagree with Part III.B, and I would not reach Part V. Because I would affirm the district court's grant of summary judgment for Quaker State on the federal claim, I would remand the state claims to the district court to determine whether jurisdiction should be retained pursuant to 28 U.S.C. § 1367(c)(3).
21 317 (1986), which applies equally to McDonnell Douglas
discrimination cases. See Healy v. New York Life Ins. Co., 860
F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098
(1989). Under Celotex, the district court must evaluate the
nonmovant plaintiff's evidentiary showing to determine whether
the showing raises a genuine issue of material fact. This
court's past discussions of the degree of proof required to
survive summary judgment in McDonnell Douglas cases have
recognized the need for this type of evidentiary evaluation.
Fuentes v. Perskie provides our most extensive treatment of the
subject. 32 F.3d 759 (3d Cir. 1994). "[T]o avoid summary
judgment, the plaintiff's evidence . . . must allow a factfinder
reasonably to infer that each of the employer's proffered
nondiscriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action (that
is, the proffered reason is a pretext)." Id. at 764 (citations
omitted) (first emphasis added); see Sempier v. Johnson &
Higgins, 45 F.3d 724, 728 (3d Cir.) (adopting implicitly the
"reasonable inference" standard), cert. denied, ___ U.S. ___, 115
S. Ct. 2611 (1995); accord Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906 (1990); Sorba v.
Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir. 1987),
cert. denied, 484 U.S. 1019 (1988).
In Fuentes, we observed that "this standard places a
difficult burden on the plaintiff." 32 F.3d at 765. It requires
the plaintiff to "present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon, the .
22 . . proffered reasons[.]" Id. (emphasis added). Elsewhere, we
have described the standard in similar terms. See Seman v.
Coplay Cement Co., 26 F.3d 428, 431 (3d Cir. 1994) ("our standard
requires consideration of whether or not there is substantial
evidence in the record to support an employee's contention that
'but for' his age he would not have been discharged" (citing
Billet v. CIGNA Corp., 940 F.2d 812, 815 (3d Cir. 1991)).
In the present case, Brewer did not cast doubt on
Quaker State's proferred reasons, i.e., he did not allege that
they were not true. He contended instead that they were
inadequate for discharge because he was a good salesman.
I cannot agree that Brewer's evidence meets the
McDonald Douglas summary judgment standard. His general
performance evidence, considered in connection with Quaker
State's specific reasons for discharge, is insufficient to raise
a genuine issue of material fact; the inferences he draws from
his remaining evidence are unreasonable.
The majority opinion provides a fair summation of the
facts of this case. Brewer was fired following a series of
significant performance problems, such as letting his customers
run out of oil and failing to complete or even file his
paperwork. To demonstrate that these reasons were pretextual and
that the real reason for his firing was age discrimination,
Brewer offered three principal pieces of evidence: first,
general performance evidence such as positive comments on
personnel evaluations and a sales bonus for selling oil in the
two years prior to termination; second, a personnel memorandum
3 written by Wanda Weaver, Quaker State's Manager of Employment and
Compensation, and sent to Pfauser, Brewer's supervisor at the
time, which summarized Brewer's personnel evaluations since 1975,
approved a "performance plan" that Pfauser had submitted, and
observed, "[a]lso, Judd is 53 years old, which presents another
problem"; and third, a comment by Jack Corn, then chief executive
officer of the company, in the company newspaper referring to two
of his new "seconds-in command" as "two of our star young men in
their mid-40s . . . [t]hat age group is our future . . .."
For clarity, I will analyze each of Brewer's
evidentiary proffers independently. Brewer's general evidence of
acceptable job performance forms the nub of the case. The Weaver
memorandum and the Corn comment are far weaker and, I believe,
insufficient to stave off summary judgment absent Brewer's
evaluations and sales bonus.
Quaker State alleges that it fired Brewer for a litany
of specific performance problems. Brewer responds with generic
evidence of his generally successful performance as a salesman.
The majority believes that Brewer's showing reveals sufficient
"weaknesses, implausibilities, inconsistencies, incoherences, or
contradictions" in Quaker State's explanation to produce a
triable issue of fact. Majority at [typescript at 10]. I do
not agree.
Brewer's general evidence of good performance is
insufficient to cast doubt on the specific and undisputed reasons
for termination articulated by Quaker State. Put simply, good
salesmen get fired for non-sales related reasons. Quaker State
4 proffered such reasons, and Brewer has done nothing to rebut
them. Good performance alone will not raise an inference of
wrongful termination. See Turner v. Schering-Plough Corp., 901
F.2d 335, 343-44 (3d Cir. 1990) (observing that close proximity
between positive evaluations and terminations will not
necessarily raise an inference of pretext); Healy, 860 F.2d at
1215 (noting that awards, commendations, and promotions do not
suggest that countervailing weaknesses do not exist or would not
be important in future evaluations). Brewer's failure to carry
out specific tasks is dispositive, regardless of his general
proficiency. Pierce v. New Process Company, 580 F. Supp. 1543,
1546 (W.D. Pa.), aff'd 749 F.2d 27 (3d Cir. 1984) ("The absence
of complaints about performance, the absence of earlier commands,
and plaintiff's own opinion . . . are all irrelevant in light of
the direct order . . . which plaintiff undeniably failed to carry
out.").
Because Brewer failed to offer evidence that addresses
Quaker State's reasons, summary judgment was properly granted.
See Geary v. Visitation of the Blessed Virgin Mary Parish School,
7 F.3d 324, 332 (3d Cir. 1993) (affirming summary judgment where
employee did not contest reason for dismissal); Turner, 901 F.2d at 344 (affirming summary judgment where "[the employee] has
offered no evidence tending to show that serious and unattended
problems did not exist within his jurisdiction or that [the
employer's] other criticisms at the time of the . . . decision
were unjustified."); Keller v. Bleumle, 571 F. Supp. 364, 369 (E.D. Pa. 1983), aff'd, 735 F.2d 1349 (3d Cir. 1984) (noting that
5 employee explained deficiencies but did not contest them); see
also Fowle v. C & C Cola, 868 F.2d 59 (3d Cir. 1989) (affirming
summary judgment where employee failed to rebut employer's reason
of lack of qualifications); Spangle v. Valley Forge Sewer
Authority, 839 F.2d 171 (3d Cir. 1988) (affirming grant of
summary judgment where employee presented no evidence to show he
was qualified for the job).
Brewer's position in this case differs from previous
cases where employees have used general performance evidence to
rebut a proffered reason for discharge. Although we have
repeatedly recognized that employees can rely on evidence of good
performance to show pretext, in those cases the employers have
inevitably relied on poor performance as a reason for
termination. See, e.g., Waldron v. SL Indus. Inc., 56 F.3d 491,
496 (3d Cir. 1995) (rebutting poor performance charge and charge
of economic necessity); Sempier, 45 F.3d at 730 (rebutting with
performance evidence where non-performance was sole reason
given); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1422 (3d
Cir.) (in banc), cert. denied, 502 U.S. 941 (1991) (allowing
employee to contest poor evaluation using testimony of co-
workers); Siegel v. Alpha Wire, 894 F.2d at 51-52 (rebutting charge of poor performance and disloyalty); Sorba, 821 F.2d at
205 (rebutting charge of poor performance); Chipollini, 814 F.2d
at 900 (rebutting charge of poor performance based primarily on
credibility of employee). Had Quaker State relied on poor sales
performance as its reason for discharge, I would confidently join
the majority in finding that reason rebutted and hence a
6 reasonable inference of pretext. That is not the case: Quaker
State terminated Brewer because of specific failures and
omissions, not because of generally inadequate performance.
Nevertheless, at some level of analysis, performance
evidence will always be relevant. Even though Quaker State did
not rely on poor performance per se, we must still consider it.
As we explained in a footnote in Fuentes, "a decision foolish,
imprudent, or incompetent by comparison to the employer's usual
mode of operation can render it implausible, inconsistent, or
weak." 32 F.3d at 765 n.8. Because firing an extremely
qualified and effective employee could be "foolish, imprudent, or
incompetent by comparison to the employer's usual mode of
operation," the court on summary judgment must inevitably
consider employee performance.
Brewer's performance evidence comes to naught. Under
our rule in Fuentes, unless the employer relies on poor
performance as an articulated justification, the evidence of good
performance must be sufficient to make the employer's decision
appear "foolish, imprudent, or incompetent." Neither Brewer's
sales bonus nor his inconsistent, often mediocre, but
occasionally complementary evaluations meet this burden. See Turner, 901 F.2d at 343 (refusing to find issue of fact from
employee's mixed reviews); Healy, 860 F.2d at 1215 (affirming
grant of summary judgment despite generally positive and at worst
mixed performance evaluations); see also Fowle, 868 F.2d at 67
(discounting positive performance evaluations). A company is not
"foolish, imprudent, or incompetent" when it fires a salesman who
7 lets his customers run out of oil, fails to spend sufficient time
in his territory, and consistently neglects his paperwork.
Moreover, in firing Brewer, Quaker State did not
deviate from "the employer's usual mode of operation." Fuentes,
32 F.3d 765 n.8. The majority suggests otherwise, claiming that
"[i]t is also questionable why a company would fire [a]
salesperson . . . in response to the same organizational
deficiencies that the employer had tacitly accepted for over two
decades." Majority at [typescript at 13]. This court has
recognized that changes in circumstances can turn flaws that were
previously overlooked into legitimate reasons for termination.
See Healy, 860 F.2d at 1215, 1220 (discussing change in employee
environment). It was undisputed that Brewer's problems came to a
head after his transfer to Detroit, where he encountered a
supervisor who was hard on everyone and a stickler for rules.
App. at 72a ("[Pfauser] is a cross the Ts and dot the Is type of
person to the point of being almost a fanatic about it. Corporate
policy was always first in line, . . . [a]nd it affected
everybody out there.") (deposition of Judd Brewer).
Contemporaneous with Brewer's termination, Brewer's supervisor
fired a thirty-two year old salesman for almost identical
deficiencies. See Brewer, 874 F. Supp. at 686; cf. Waldron, 53 F.3d at 499 (relying on evidence of double standard to reverse
summary judgment). Brewer experienced a change in circumstances
after which his previous deficiencies were no longer accepted.
There is no contradiction here.
8 In an effort to create a contradiction, the majority
makes much of Brewer's sales bonuses combined with a Quaker State
executive's statement that sales volume is "extremely important
in evaluating a salesperson." Majority at [typescript at
11]. Unfortunately, the two propositions in the majority's
constructed contradiction pass in the night. Proposition A, that
Brewer was fired despite good sales figures, simply does not
contradict Proposition B, that sales volume is "extremely
important in evaluating a salesperson." Descriptives such as
"extremely important" and "best simple measure" show that sales
volume is one important factor to the company, indeed one very
important factor to the company, but they do not show that sales
volume is the only important factor to the company. Absent this
final alternative, Brewer could have had more than acceptable
sales numbers and still be fired for cause without contradiction.
The majority next suggests that "[t]o segregate job
performance into the neat categories of sales and organizational
company." Majority at [typescript at 11]. In addition, it
finds in Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992), cert. denied, ___ U.S. ___, 114 S. Ct.
88 (1993), the concept of a job's "critical area," implying that
a company which fires an employee despite acceptable performance
in that critical area automatically raises an inference of
pretext.0 These arguments dress the same contention in different
0 I note in passing that to the extent Ezold stands for the proposition that an employee who falls short in a critical
9 clothes. To paraphrase the argument, the majority claims that
selling is what salesmen do, so firing a salesman who sells is
inherently pretextual.
I cannot agree. The "reality of [a salesperson's]
role," and the "critical area" of a job are simply not helpful
concepts.0 See Perry v. Prudential-Bache Sec., Inc., 738 F.
Supp. 843 (D.N.J. 1989), aff'd, 904 F.2d 696 (3d Cir.), cert
denied, 498 U.S. 958 (1990) (affirming summary judgment for
employer despite showing that terminated employee excelled in
core skill of underwriting). Both concepts attempt to establish
a general ideal of "performing the job" such that any contrary
reason given by the employer conflicts with that ideal. In doing
so, the majority adopts the very posture of "super-personnel
area of performance can be terminated despite demonstrated success in other job areas, it does not follow that an employee cannot be terminated for failures in other job areas despite success in a critical area. 0 A brief hypothetical reveals the difficulties with these ideas. An associate in a law firm excels at legal research, the "critical area" of his job. Yet on several occasions, this associate fails to send documents to an important client. He also consistently neglects to record his billable hours and maintain other mundane aspects of law office paperwork. Although some partners accept these foibles, the associate eventually encounters a more particular supervising attorney who seeks and obtains his termination. Assuming that the associate's subsequent suit for discriminatory discharge reached the pretext stage, I have little doubt that this hypothetical associate could not rebut the employer's specific reason for termination with general evidence of good performance in the critical area of his job. Nor could some elusive vision of the "reality of a lawyer's role" aid him in linking inextricably his failings in correspondence and paperwork to his more successful forays in the firm library. Such evidence of good performance would not raise an inference that the employer's reasons for termination were pretextual. Indeed, such evidence would be entirely consistent with the reasons given for termination.
10 department" that it all too strenuously declines. Majority at
[typescript at 11]. The majority defines the essence of a sales
position and evaluates Brewer's performance against that
standard. I would save this court the task of redefining
Brewer's job description to include only those requirements that
he could meet. We should instead look to whether his good sales
performance was inconsistent with his reasons for termination. I
find no contradiction and no reasonable inference of pretext.
It also bears noting that in firing Brewer, Quaker
State committed none of the questionable acts which we have cited
in the past as indicative of pretext. Brewer's performance
problems were long-standing and well documented. See Healy, 860
F.2d at 1215 (discounting performance based inferences where
complaints were long-standing and the employee had been informed
of their nature); Billet, 940 F.2d at 827 (same); cf. Colgan, 925
F.2d at 1422 (stressing that evaluations were a surprise and that
ratings became aberrationally low when employee refused to
retire). He never contested these evaluations prior to
termination.0 There was no evidence of corporate machinations or
a plot to transfer Brewer and set him up for termination. Cf. Waldron, 56 F.3d at 496-97; Armbruster, 32 F.3d at 772-74. Brewer
offered no statistical or testimonial evidence indicating that
0 This fact makes Brewer's claim of pretext sound like a post hoc explanation. Although the post hoc concept is typically applied to the employer's reason for terminating the employee, it is equally valid here. Just as post hoc timing indicates the employer's reason is pretext, see Waldron, 56 F.3d at 498; Sempier, 45 F.3d at 731; Fuentes 32 F.2d at 764; Siegel v. Alpha Wire, 894 F.2d at 55, it similarly undermines Brewer's claim.
11 Quaker State had discriminated against similarly situated
parties. Cf. Siegel v. Alpha Wire, 894 F.2d at 55.
In my view, Brewer's performance evidence fails to
reach the quantum required by Fuentes. He has not presented
"sufficient evidence to meaningfully throw into question, i.e.,
to cast substantial doubt upon, [the defendant's] proffered
reason . . . (e.g., by painting them as weak, implausible,
contradictory, or incoherent)[.]" 32 F.3d at 765. Indeed, he
has presented no evidence indicating that his employer did not
act for its asserted non-discriminatory reasons. The record
shows Quaker State's reliance on his failure to meet work
requirements to be adequate, plausible, consistent, and
coherent.0
Having addressed the sufficiency of Brewer's general
performance evidence, I now turn to the two other items that he
proffers, the Weaver memorandum and the Corn comment. For both
items, the inference of discrimination that Brewer hopes to draw
is unreasonable "in light of competing inferences." Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986).
0 As we have so often observed, McDonnell Douglas cases are inherently fact-specific. Billet, 940 F.2d at 828 ("discrimination cases are inherently fact-bound"); Healy, 860 F.2d at 1215 ("each ADEA case must be judged on its own facts"). My rejection of Brewer's showing would not foreclose the success of some future performance-based challenge to termination, either where the employer relied on poor performance as one of its justifications or where, as per Fuentes, the employee's performance is sufficient to make the employer's decision appear "foolish, imprudent, or incompetent." See Fuentes, 32 F.3d at 764 n.7 (explaining that employee need only cast doubt on certain employee reasons). Brewer's evidence, however, does not meet this burden, and the grant of summary judgment was proper.
12 As to the Weaver memorandum, I have little to add to
the analysis of the trial court. Brewer, 874 F. Supp. at 683-84.
Brewer greatly amplified the impact of Weaver's "[age] presents
another problem" statement by repeatedly quoting it out of
context. When the letter is read as a whole, it becomes apparent
that an inference of age discrimination is not reasonable.0 The
0 To properly evaluate the statement, it must be understood as written. This extensive quotation places the comment in context:
The performance plan that you outlined . . . is excellent. It is important that you identify specific deficiencies [in Brewer's performance] and the results desired by management.
At this point in time, I would recommend that you identify specific monthly dates when you two can get together and discuss results over the previous thirty (30) days. The results of those meetings should be summarized in letter format and Judd should sign the letter to acknowledge receipt. It is also important that we provide Judd with written notice of action that will be taken if the problems are not corrected. I suggest summarizing your meeting of August 19, acknowledge receipt by Judd, and close the letter by stating, "I must emphasize to you that your failure to permanently improve your work performance may lead to more severe discipline, up to and including discharge."
Attached for your review is a brief summary of Judd's performance appraisals over the last 15 years. I am disappointed that action was not taken years ago to correct these problems. It is apparent from the performance appraisals that he has had ongoing performance problems throughout his employment history.
I am obviously concerned that we have to take this type of action after 23 years of
13 district court drew the only reasonable conclusion: "The
statement as to Brewer's age being a 'problem,' together with the
notations of his age and years of service, obviously indicate
Weaver's awareness that Brewer might file an age discrimination
lawsuit if terminated." Id. at 684.
From the tone of the sentence and its placement in the
memorandum, it is clear that Brewer's age militates against his
firing. The comment appears in a separate paragraph from the
discussion of Brewer's employment problems. Moreover, in
Weaver's unrebutted deposition testimony, she stated that
standard procedures were followed in requiring documentation of
Brewer's performance while on probation and that she highlighted
Brewer's age to alert his supervisor to his protected status and
to ensure that age was not the reason for termination. Id.; see
Perry v. Prudential-Bache Sec., Inc., 738 F. Supp. 843, 849
(D.N.J. 1989) (holding that age data on various employment
records was used for computing employee's pension, not for the
purpose of discrimination), aff'd, 904 F.2d 696 (3d Cir.), cert.
denied, 498 U.S. 958 (1990). The district court correctly
employment. Also, Judd is 53 years old, which presents another problem. However, within the next ninety (90) days, it is extremely important for you to document as much as possible in the event his performance does not improve.
Please forward each letter for our personnel file in Oil City. I will stay in touch with you to see what progress has been made . . .. App. at 24.
14 concluded that nothing supported an inference of discrimination,
a conclusion that is all the more valid in light of Brewer's long
history of employment problems.
As to the Corn comment, it expresses a truism that I
would deem to be a stray remark by a non-decisionmaker. Even if
it were to be considered relevant, I do not believe that it would
create a material issue of fact sufficient to warrant a denial of
Quaker State's motion for summary judgment. See White v.
Westinghouse Elec. Co., 862 F.2d 56, 61 (3d Cir. 1988)
(considering similar comments); Perry v. Prudential-Bache Sec.
Inc., 738 F. Supp. 843, 849 (D.N.J. 1989) (same), aff'd 904 F.2d
696 (3d Cir.), cert. denied, 498 U.S. 948 (1990). I will not
dwell on it further.
I conclude that, viewed as a whole, the record contains
nothing that casts meaningful doubt on Quaker State's proffered
reason for Brewer's discharge. "While plaintiff is 'entitled to
every favorable inference,' he is not entitled to build a case on
'the gossamer threads of whimsy, speculation and conjecture.'"
Keller v. Bluemle, 571 F. Supp. 364, 371 (E.D. Pa. 1983), aff'd,
735 F.2d 1349 (3d Cir. 1984).
I do not believe that Brewer has made the showing
necessary to survive a motion for summary judgment. Because I
would affirm the district court, I respectfully dissent.