Connolly v. Pepsi Bottling Group, LLC

347 F. App'x 757
CourtCourt of Appeals for the Third Circuit
DecidedOctober 2, 2009
DocketNo. 08-4249
StatusPublished

This text of 347 F. App'x 757 (Connolly v. Pepsi Bottling Group, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connolly v. Pepsi Bottling Group, LLC, 347 F. App'x 757 (3d Cir. 2009).

Opinion

[758]*758OPINION OF THE COURT

SCIRICA, Chief Judge.

In June 2006, plaintiff Robert Connolly was fired from his position with defendant Bottling Group, LLC d/b/a The Pepsi Bottling Group (“PBG”). He was 52 years old at the time. Plaintiff brought suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 — 634, alleging he was fired because of his age. The District Court granted summary judgment for defendant, and plaintiff appeals. We will affirm.

As we write primarily for the parties, we need not recount in full the factual and procedural history of this case, which is set forth by the court below. See Connolly v. Pepsi Bottling Group, L.L.C., Civ. A. No. 06-1462, 2008 WL 4412090 (W.D.Pa. Sept.22, 2008). Plaintiff began work with defendant in 1972. As of February 2004, he held the position of Key Account Manager. In this capacity, he was assigned “third-party operator” customer accounts to manage, including that of the University of Pittsburgh Medical Center (“UPMC”). On June 19, 2006, defendant terminated plaintiffs employment. Shortly thereafter, defendant chose Robert Haig, then 47 years old, to fill plaintiffs former position.

According to defendant, plaintiff was terminated because he violated defendant’s Code of Conduct in his management of the UPMC account — particularly, those provisions of the code pertaining to business integrity, conflicts of interest, and business gifts. In 2002, plaintiff and Bill O’Connor, director of corporate purchasing for UPMC at the time, were involved in renegotiating the contract between defendant and UPMC. As UPMC and defendant would later learn, plaintiff and O’Connor signed two different versions of this renegotiated contract on December 11, 2002, one of which was thereafter held by defendant and the other by UPMC; neither UPMC nor defendant had the other’s version on record. These two versions contained materially different terms — for instance, the version held by defendant contained a clause providing for $175,000 in yearly “Special Event Support” marketing funds that defendant would make available to UPMC, while the version held by UPMC did not.

UPMC became aware of this situation in May 2006, when plaintiff, during a meeting with Bob Cutone (the individual who had assumed responsibility for the contract at UPMC1), told Cutone that the version of the contract held by UPMC was incorrect and gave him the version held by defendant. Cutone informed plaintiff that UPMC had no record of this other version of the contract. Subsequently, Cutone’s supervisor notified defendant that UPMC had serious concerns regarding its relationship with defendant and that UPMC was investigating certain marketing fund expenditures made by defendant on UPMC’s behalf while O’Connor was still with UPMC — expenditures which plaintiff authorized and which, as noted above, were not provided for in UPMC’s version of the contract. These expenditures included the purchase of a crew boat for the high school rowing program of which O’Connor’s son had been a member, and of season tickets to the Pittsburgh Steelers. In June 2006, UPMC arranged a meeting with plaintiffs supervisor to discuss this situation and asked that plaintiff not attend. At this meeting, UPMC apprised defendant of the differences between the two versions of the contracts; plaintiff had not notified defendant of the existence of the different versions prior to this meeting. When subsequently asked by defendant to explain the existence of the two versions of the contract, plaintiff offered multiple incomplete and contradictory re[759]*759sponses. One week after its meeting with UPMC, defendant terminated plaintiffs employment.

Plaintiff filed suit against defendant, claiming it fired him because of his age in violation of the ADEA Plaintiff pointed to the following evidence to substantiate his claim of discrimination: comments made over the course of his last two years of employment with defendant by two of his supervisors, Bill Dillon and Lisa Sarneso, who were both involved in the termination decision;2 a handwritten notation indicating plaintiffs birth date and age that was made on plaintiffs computer-generated personnel profile by Patrick Flynn, another individual involved in the termination decision, shortly before that decision;3 Dillon’s issuance of a “below target” performance evaluation to plaintiff in October 2005, the first that plaintiff had received in his time working for defendant, and plaintiffs consequent placement on a performance improvement plan; and the timing of the hiring of plaintiffs replacement. According to plaintiff, defendant’s reliance on its Code of Conduct in its termination decision was simply a pretext for its actual, discriminatory motivation.

Defendant filed a motion for summary judgment. The District Court, applying the McDonnell Douglas burden-shifting framework to analyze plaintiffs claim, found that plaintiff had made a prima facie showing of discrimination: namely, that plaintiff was a member of a class protected under the ADEA, was qualified, suffered an adverse employment action, and was replaced by someone sufficiently younger to raise an inference of discrimination. The court also found defendant had met its burden of producing a legitimate nondiscriminatory reason for its termination of plaintiff — his entry “into two materially different contracts with the same customer on the same day, giving rise to an appearance of impropriety, and his multiple, incomplete and contradictory explanations when questioned about the two contracts.” The court noted that “[n]ot only did this conduct arguably violate the conflicts of interest and business gifts and payments subsections of the conducting business with integrity section of defendant’s code of conduct, it also put into jeopardy defendant’s business relationship with a major account.” Lastly, the court determined plaintiff had failed to put forth evidence that, when viewed in the light most favorable to him, would permit a reasonable factfinder to conclude that defendant’s proffered reason was pretextual and that plaintiff had been unlawfully discriminated against. Accordingly, the court granted defendant’s motion for summary judgment. This timely appeal followed.4

[760]*760The ADEA prohibits employers from discriminating against “any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). “[A] plaintiff bringing a disparate-treatment claim pursuant to the ANEA must prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 2352, 174 L.Ed.2d 119 (2009).5

On appeal, plaintiff does not challenge the District Court’s finding that, under the McDonnell Douglas framework, defendant has met its burden of producing a legitimate nondiseriminatory reason for its decision to terminate him. Plaintiff claims, however, that he has put forth sufficient evidence to discredit defendant’s proffered reason as pretextual and to defeat defendant’s motion for summary judgment. We disagree.

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Bluebook (online)
347 F. App'x 757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connolly-v-pepsi-bottling-group-llc-ca3-2009.