Fowle v. C & C Cola

868 F.2d 59
CourtCourt of Appeals for the Third Circuit
DecidedFebruary 16, 1989
DocketNo. 88-5206
StatusPublished
Cited by113 cases

This text of 868 F.2d 59 (Fowle v. C & C Cola) 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
Fowle v. C & C Cola, 868 F.2d 59 (3d Cir. 1989).

Opinion

OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

Plaintiff Wilson Fowle appeals from an order of the district court granting summary judgment in favor of defendants C & C Cola, ITT-Continental Baking, ITT/International Telephone and Telegraph Corporation 1 and Ralph Pausig. The district court had jurisdiction of Fowle’s Age Discrimination in Employment Act (ADEA) claim, 29 U.S.C. § 621, et seq., under 28 U.S.C. §§ 1331 and 1343, and of Fowle’s state law claims under 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.

II.

This case arises out of defendants’ failure to hire plaintiff Wilson Fowle for three positions after his job at ITT was eliminated by ITT’s sale of C & C Cola to Shasta Beverages in March, 1982. In the district court, Fowle alleged violations of the ADEA, the New Jersey Law Against Discrimination, N.J. StatAnn. 10:5-1, et seq., the New Jersey Constitution, Art. I, Par. 1, New Jersey public policy, oral and written promises by defendants, and contractual obligations created by ITT policies. The district court granted summary judgment for the defendants as to all of Fowle’s claims. Fowle brought this appeal which implicates particularly abstract considerations because of the executive nature of the positions involved.2

In an appeal from a district court order granting summary judgment our review is plenary. We apply the same test used by the district court: whether there is no genuine issue of material fact, and whether the defendant-appellee is entitled to judgment as a matter of law. An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed. 2d 202 (1986).

A. THE ADEA CLAIMS

We will turn first to Fowle’s ADEA claims. The three-stage shifting burden originally developed in the context of the title VII employment discrimination action, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1980), has been adapted for use in the analysis of disparate treatment claims under the ADEA. See, e.g., Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The plaintiff first has the burden of making out a prima facie case of employment discrimination. The specific items of proof required in making out a prima facie case vary with the factual setting. See, e.g., McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. To make out a prima facie case of age discrimination in a case of failure to hire, plaintiff must show 1) that he belongs to the protected class, 2) that he applied for and was qualified for the job, 3) that despite his qualifications he was rejected, and 4) that the employer either ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination, see Maxfield, 766 F.2d at 793, or continued to seek applicants from among those having plaintiff’s qualifications, see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.

If a prima facie case is established, the burden then shifts to the defendants “to articulate some legitimate, nondiscriminatory reason” for the failure to hire. Id. If such a reason is offered, the plaintiff then has the burden of showing that the proffered reason was in fact a pretext. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. [62]*62The plaintiff “may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. Thus, “a plaintiff can prevail by means of indirect proof that the employer’s reasons are pre-textual without presenting evidence specifically relating to age.” Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, — U.S. -, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).

Because of this structure of proof, an ADEA defendant can prevail on a summary judgment motion in two different ways. “The defendant may show that the plaintiff can raise no genuine issue of fact as to one or more elements of the plaintiff's prima facie case. The defendant may also introduce evidence of nondiscriminatory animus and show that the plaintiff can raise no genuine issue of fact as to whether the proffered reason is a pretext for discrimination.” Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir.1988) (citation omitted).

1. The Vice President — Director of Marketing Position

Fowle first alleges that the defendants failed to hire him for the position of Vice-President Director of Marketing at Continental Baking. Some background is in order. Because this case comes to us on the grant of defendants’ motion for summary judgment, we will draw every justifiable inference favorable to Fowle in our narration of the facts. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Wilson Fowle was first hired by ITT Corporation on December 26, 1972 — when he was 46 years old — as Staff Assistant-Office of the President at ITT World Headquarters. The job description for the position for which Fowle was hired set forth the criteria for the job: “Ultimately ... the decision must be based on the potential of any candidate to take on the Presidency of an Operating company minimally, and preferably, Group Executive responsibilities for a group of companies.”

The job description contemplated possible transfer after a relatively short period of time to a position of management responsibility in a group, sub-group or operating company of ITT. Fowle, however, was not transferred. Fowle was assigned the duties of Product Line Manager (PLM), Food Products and Services.

In 1978 and 1979, Fowle was given written Executive Performance Review evaluations by his immediate supervisor. These evaluations were both excellent. The 1978 evaluation found that Fowle was “qualified as a candidate for broader responsibility on the basis of experience and knowledge.” The evaluation stated that Fowle’s “leadership qualities are difficult ...

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Bluebook (online)
868 F.2d 59, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowle-v-c-c-cola-ca3-1989.