Title Showalter v. University of Pittsburgh Medical Center
Date 1999
By Alito
Subject Misc
Contents
Page 1
LEXSEE 190 F3D 231
DONALD SHOWALTER, Appellant v. UNIVERSITY OF PITTSBURGH MEDICAL CENTER
No. 98-3320
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
190 F.3d 231; 1999 U.S. App. LEXIS 20822; 80 Fair Empl. Prac. Cas. (BNA) 1161; 76 Empl. Prac. Dec. (CCH) P46,056
March 1, 1999, Argued
August 31, 1999, Filed
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. No.
96-cv--01317). (Magistrate Judge: Honorable Francis X. Caiazza).
DISPOSITION: Reversed and remanded.
LexisNexis(R) Headnotes
COUNSEL: SANFORD NEIMAN (ARGUED), MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, Pittsburgh, PA, Counsel for Appellant.
LOUIS J. KRZEMIEN, JR. (ARGUED), UNIVERSITY OF PITTSBURGH MEDICAL CENTER, Pittsburgh, PA, Counsel for Appellee.
JUDGES: Before: ALITO and McKEE, Circuit Judges, and SCHWARTZ, Senior District Judge. *
* The Honorable Murray Schwartz, Senior United States District Judge for the District of Delaware, sitting by designation.
OPINIONBY: ALITO
OPINION:
*232 OPINION OF THE COURT
ALITO, Circuit Judge:
Donald Showalter sued his former employer, the University of Pittsburgh Medical Center ("UPMC"), in federal district *233 court, alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq. UPMC moved for summary judg- ment, and a Magistrate Judge n1 granted its motion, hold- ing (1) that "Showalter could not establish the fourth el-
ement of his prima facie case because UPMC did not retain unprotected workers" and (2) **2 that Showalter could not "discredit UPMC's articulated legitimate rea- sons for his dismissal or establish that age discrimination motivated UPMC's decision." App. at 62. We hold that the Magistrate Judge erred in making both legal determi- nations, and we therefore reverse the grant of summary judgment and remand for further proceedings.
n1 The District Court, after receiving the consent of both parties pursuant to 28 U.S.C.
§ 636(c)(1) (1994), issued an order assigning this case to the Magistrate Judge. App. at 46. Showalter was entitled to appeal the judgment of the Magistrate Judge directly to this Court. See 28
U.S.C. § 636(c)(3) (amended 1996).
I.
During the early 1990's, the Presbyterian University Hospital ("Presbyterian"), which UPMC already owned, merged with the Montefiore University Hospital
("Montefiore"). Until approximately October 1994, UPMC maintained separate security departments at Montefiore and Presbyterian. As of May 1994, George Eror directed **3 Montefiore's security department, which had four security supervisors, and Donald Charley directed Presbyterian's security department, which had three security supervisors. Appellant's Br. at 11.
Because of budgetary constraints, UPMC required Montefiore and Presbyterian to eliminate one security su- pervisor each in May 1994. The four Montefiore security supervisors were Messrs. Showalter, Leahy, Wright, and Delbane, who were 61, 52, 45, and 38 years old, respec- tively. Eror terminated Delbane, the youngest of the four Montefiore supervisors, because he had the weakest per- formance rating. App. at 88. In reaching this decision, Eror compared Delbane only with other Montefiore secu-
190 F.3d 231, *233; 1999 U.S. App. LEXIS 20822, **3;
80 Fair Empl. Prac. Cas. (BNA) 1161; 76 Empl. Prac. Dec. (CCH) P46,056
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rity supervisors and not with Presbyterian security super- visors. Likewise, Charley evaluated Presbyterian security supervisors only against other Presbyterian security su- pervisors. App. at 75-78.
In August 1994, UPMC required Montefiore to elim- inate another security supervisor. Because the three re- maining supervisors had virtually indistinguishable per- formance records, Eror decided to terminate the indi- vidual with the least department seniority. According to David Treece -- the human resource employee who **4 advised both Eror and Charley in personnel matters, such as reduction-in--force ("RIF") decisions -- UPMC depart- ment heads used one of the following three types of se- niority to make RIF decisions: job seniority (time em- ployed at a given position), department seniority (time employed in a given department), and hospital seniority
(time employed by the hospital). App. at 84, 86.
Neither party disputes that Showalter had less depart- ment seniority than Leahy or Wright, nor does either party dispute that Wright had less job seniority than Showalter. Thus, had Eror selected job seniority rather than depart- ment seniority as the basis for making his decision, Wright would have been terminated instead of Showalter. In addi- tion, it is undisputed that Showalter had more seniority -- of either the job or department variety -- than any of the Presbyterian security supervisors. Consequently, had Eror compared Showalter to both Montefiore and Presbyterian security supervisors, Showalter would not have been ter- minated.
The Magistrate Judge granted UPMC's motion for summary judgment for two reasons: first, he held that Showalter failed to establish a prima facie case of age discrimination under **5 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817
(1973); and second, he held *234 that even if Showalter had established a prima facie case of age discrimina- tion, Showalter did not submit evidence" 'from which a factfinder could reasonably either (1) disbelieve the em- ployer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.' " App. at 58 (Magistrate Judge Opinion) (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108
(3d Cir. 1997) (en banc) (quoting Fuentes v. Perskie, 32
F.3d 759, 763 (3d Cir. 1994)).
II.
We exercise plenary review over an order granting summary judgment, and we apply the same standard that the lower court should have applied. Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). A federal court should grant summary judgment "if the pleadings, depo-
sitions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the mov- ing party **6 is entitled to a judgment as a matter of law." Fed R. Civ. P. 56(c). In making this determination,
"a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster, 32 F.3d at 777.
On appeal, Showalter makes two arguments. First, Showalter contends that the Magistrate Judge applied the wrong legal standard in determining that he did not sat- isfy the fourth element of the McDonnell Douglas prima facie test. Second, Showalter claims that he submitted evidence from which a reasonable factfinder could disbe- lieve UPMC's proffered reasons for terminating him. n2
We will address each argument in turn.
n2 Showalter does not argue that he presented evidence from which a reasonable factfinder could conclude that UPMC was more likely than not mo- tivated by an invidious discriminatory reason.
A.
We agree with appellant's argument that the Magistrate Judge applied the wrong legal standard in de- termining that Showalter did not **7 satisfy the fourth element of a prima facie age discrimination case under the McDonnell Douglas framework. McDonnell Douglas set forth a burden-shifting framework for the presentation of evidence in discriminatory treatment cases litigated un- der Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-1 et seq. This Court "has applied a slightly modi- fied version of this scheme in ADEA cases." Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997)
(en banc); cf . O'Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 311, 134 L. Ed. 2d 433, 116 S. Ct.
1307 (assuming, without deciding, that the McDonnell Douglas framework applies to ADEA cases). In Keller, we wrote:
The McDonnell Douglas scheme has three steps. First, the plaintiff must produce ev- idence that is sufficient to convince a rea- sonable factfinder to find all of the elements of a prima facie case. . . . When the plain- tiff alleges unlawful discharge based on age, the prima facie case requires proof that (i) the plaintiff was a member of the protected class, i.e., was 40 years of age or older (see
29 U.S.C. § 631 **8 (a)), (ii) that the plain- tiff was discharged, (iii) that the plaintiff was qualified for the job, and (iv) that the plaintiff
190 F.3d 231, *234; 1999 U.S. App. LEXIS 20822, **8;
80 Fair Empl. Prac. Cas. (BNA) 1161; 76 Empl. Prac. Dec. (CCH) P46,056
Page 3
was replaced by a sufficiently younger person to create an inference of age discrimination.
130 F.3d at 1108 (citations omitted).
This Court has held that in RIF cases, "this framework is inadequate with respect to the last factor." Armbruster,
32 F.3d at 777. Instead, the plaintiff must show that the employer retained "unprotected workers." Id. (citing Seman v. Coplay Cement Co., 26 F.3d 428, 431 (3d Cir.
1994), abrogated on other grounds by Smith v. Borough
*235 of Wilkinsburg, 147 F.3d 272, 277 (3d Cir. 1998); Billet v. Cigna Corp., 940 F.2d 812, 816 n. 3 (3d Cir.
1991), abrogated on other grounds by St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 517-18, 125 L. Ed. 2d 407,
113 S. Ct. 2742 (1993)).
If the plaintiff establishes a prima facie case, then
"the burden of production (but not the burden of persua- sion)shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory **9 reason for the dis- charge." Keller, 130 F.3d at 1108 (citing Hicks, 509 U.S. at 506-07 (1993)). Should the defendant fail to satisfy this burden, judgment should be entered for the plaintiff. Id. But if the defendant satisfies this burden, then the bur- den of production shifts back to the plaintiff to proffer evidence " 'from which a factfinder could reasonably ei- ther (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or deter- minative cause of the employer's action.' " Id. (quoting Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)).
In the instant case, the appellant satisfied the first three prima facie elements, and thus only the fourth element is at issue. The Magistrate Judge held that because UPMC did not retain unprotected supervisors from Montefiore, i.e., supervisors under the age of 40, appellant could not satisfy the fourth element, and summary judgment was therefore appropriate. App. at 56-57, 62.
In light of our opinions in Armbruster, Seman, and Billet, all of which held that the fourth element of **10 a prima facie age discrimination case in a RIF context re- quires the plaintiff to show that unprotected workers were retained, n3 the Magistrate Judge understandably applied this standard rather than requiring Showalter to show that the retained workers were "sufficiently younger" than he was at the time of discharge. See Keller, 130 F.3d at 1108; see also Healy v. New York Life Ins. Co., 860 F.2d 1209,
1214 n.1 (3d Cir. 1988) (holding, in a RIF context, that the fourth prima facie element is satisfied if the plaintiff can "show that he was discharged, while the company retained someone younger"). Nevertheless, in light of the Supreme Court's opinion in O'Connor v. Consolidated
Coin Caterers Corp., 517 U.S. 308, 134 L. Ed. 2d 433,
116 S. Ct. 1307 (1996), we hold that the District Court should have applied the "sufficiently younger" standard instead of the "unprotected class membership" standard.
n3 See Armbruster, 32 F.3d at 777; Seman, 26
F.3d at 431; Billet, 940 F.2d at 816 n.3.
**11
In O'Connor, the Supreme Court addressed the ques- tion "whether a plaintiff alleging that he was discharged in violation of the ADEA must show that he was replaced by someone outside the age group protected by the ADEA to make out a prima facie case under the framework estab- lished by McDonnell Douglas . " Id. at 309. A unanimous Court held that "the fact that an ADEA plaintiff was re- placed by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case." 517 U.S. at 312. The Court explained:
The discrimination prohibited by the ADEA is discrimination "because of an individ- ual's age," 29 U.S.C. § 623(a)(1), though the prohibition is "limited to individuals who are at least 40 years of age," § 631(a). This lan- guage does not ban discrimination against employees because they are aged 40 or older; it bans discrimination against employees be- cause of their age, but limits the protected class to those who are 40 or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of **12 his age. Or to put the point more concretely, there can be no greater in- ference of age discrimination (as opposed to
"40 or *236 over" discrimination) when a
40 year-old is replaced by a 39 year-old than when a 56 year-old is replaced by a 40 year- old.
Id.
While the Court limited its review to the lower court's
"treatment of the case as a non-reduction--in-force case," id. at 310 n.1, its reasoning applies with equal force in a RIF case. n4 To hold otherwise in this ap- peal would require us to interpret 29 U.S.C. §§ 623(a)(1),
631(a) as if the statutory language permits an inference of age discrimination when a 40 year-old is discharged and a 39 year-old is retained, but permits no inference of age discrimination when, as in this case, a 60 year-old is discharged and a 44 year-old is retained. Such a holding would contravene the logic of O'Connor.
190 F.3d 231, *236; 1999 U.S. App. LEXIS 20822, **12;
80 Fair Empl. Prac. Cas. (BNA) 1161; 76 Empl. Prac. Dec. (CCH) P46,056
Page 4
n4 Notwithstanding the Magistrate Judge's de- cision to apply the "unprotected class membership" standard, he conceded that "the O'Connor Court's reasoning would seem to apply equally to RIF cases," but then rejected the "sufficiently younger" standard because the Supreme Court limited its holding to non-RIF cases. App. at 55 n.3.
**13
Further support for applying a "sufficiently younger"
standard in a RIF context is found in Torre v. Casio, Inc.,
42 F.3d 825 (3d Cir. 1994). There, a former employee
(Torre), who was 59 years old when discharged, sued Casio under the ADEA. Torre had been a regional sales manager in the audio/visual division for the eastern sales region. Id. at 827. Torre alleged that his supervisor trans- ferred him in April 1990 into a "dead-end position . . . from which he could be fired at a more propitious -- and seemingly innocent -- moment." Id. That moment came approximately one month later in May 1990 when Casio notified Torre of his discharge "as part of a reduction in force." Id. at 827-28.
This Court observed that "at the time Torre was trans- ferred and then discharged, the two other regional sales managers in the audio/visual division . . . -- aged 38 and 41, respectively -- were retained in their positions," and "when Torre was terminated in the reduction in force, other similarly-situated but younger employees were re- tained by Casio." Id. at 831. We then held that the fourth prima facie element "must be relaxed **14 in certain circumstances, as when there is a reduction in force," id., and essentially adopted a "sufficiently younger" standard that permitted an inference of age discrimination even if a retained worker was over the age of 40. Id. Thus, in view of the Supreme Court's reasoning in O'Connor and our opinion in Torre, we hold that the Magistrate Judge erred in applying the "unprotected class member- ship" standard rather than the "sufficiently younger" stan- dard as the fourth element of the McDonnell Douglas prima facie test.
In order for a plaintiff to satisfy the "sufficiently younger" standard, we have noted that there is no "partic- ular age difference that must be shown," but while "dif- ferent courts have held . . . that a five year difference can be sufficient, . . . a one year difference cannot." Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995)
(citations omitted). In this case, Showalter was eight years older than Leahy and 16 years older than Wright. We hold that the differences in age between Showalter and the re- tained employees were sufficient to satisfy the fourth el- ement of a prima facie case. See Sempier, 45 F.3d at 730
**15 (holding that the fourth prong of a prima facie
age discrimination case was satisfied where plaintiff was replaced by two individuals -- one who was four years younger than plaintiff and the other who was ten years younger).
B.
We now turn to Showalter's second argument, i.e., that Showalter submitted evidence from which a reason- able factfinder could disbelieve UPMC's proffered rea- sons for terminating him. UPMC provided the following justification for terminating Showalter: it claimed that economic *237 circumstances prompted it to termi- nate a Montefiore security supervisor and that it selected Showalter because he had the least department senior- ity of the three Montefiore security supervisors. App. at
64 (UPMC's Brief in Support of Its Summary Judgment
Motion).
Showalter contends that " a factfinder could reason- ably infer from the evidence that the decision-maker, UPMC Security Director Eror, terminated Showalter af- ter assuming authority over the consolidated supervisory security staffs and was terminating him from the con- solidated unit, not Montefiore ." Appellant's Br. at 18. We disagree. Neither party disputes that Eror notified Showalter of his discharge by letter, dated **16 August
29, 1994. Charley provided the earliest date in the record for when Eror assumed authority over the consolidated su- pervisory security staffs. He testified: "I don't remember the exact date. I believe it was some time either at the end of August, beginning part of September, around that time frame; but exactly when, I don't recall." App. at 66-67. Eror, on the other hand, testified that he began supervis- ing the consolidated Montefiore and Presbyterian security department in October 1994. See App. at 113. Similarly, David Treece, in a memorandum dated August 25, 1994, stated that "Eror would assume responsibility for both
Montefiore and Presbyterian Security in mid or late September." App. at 78. Thus, the record provides little, if any, evidence that Eror was in charge of a consolidated security department by the end of August.
Moreover, there is no evidence that UPMC had made any employment decisions as of that date in which it com- pared Montefiore security supervisors with Presbyterian security supervisors or vice-versa. On the contrary, the only evidence regarding prior UPMC RIF decisions shows that Montefiore security supervisors were com- pared only with other **17 Montefiore security su- pervisors and that Presbyterian security supervisors were compared only with other Presbyterian security supervi- sors. Viewing all this evidence, we hold that no reasonable factfinder could reject as pretextual UPMC's explanation that it compared Showalter with only other Montefiore employees because that was its traditional practice.
190 F.3d 231, *237; 1999 U.S. App. LEXIS 20822, **17;
80 Fair Empl. Prac. Cas. (BNA) 1161; 76 Empl. Prac. Dec. (CCH) P46,056
Page 5
Showalter also argues that a reasonable factfinder could conclude that UPMC's decision to use department seniority as the basis for terminating the contested RIF de- cision was actually a pretext for age discrimination. We agree. In his deposition, Treece stated in effect that, when a layoff was to be made based on seniority, UPMC did not have a fixed policy as to which type of seniority should be used. App. at 84. Rather, according to Treece, "it was a common practice that in any reduction in force he would look at alternative methods of calculating seniority to de- termine who would be affected by the layoff." Id. Treece stated that he discussed the consequences of using alter- native forms of seniority with Eror prior to Showalter's termination. App. at 86b-86c. Furthermore, Charley tes- tified that when he made RIF decisions, **18 Treece generally advised him of the three available seniority op- tions and which individuals would be discharged under each option. App. at 71-72. Eror, on the other hand, con- tradicted their testimony. While he recalled discussing the RIF decision at issue with Treece, he claimed that Treece did not inform him of any seniority option other than de- partment seniority. App. at 106. Indeed, Eror testified that
"as far as he knew," department seniority was always used for a RIF. App. at 106-07.
Based on this evidence, a reasonable factfinder could find that Eror's explanation for his choice of departmen- tal seniority -- i.e., that as far as he knew, this form of seniority was always used in a RIF -- was pretextual. A reasonable factfinder could conclude that Eror had the discretion to choose any of the three forms of seniority; that he knew in advance the result that each choice would produce; and *238 that he selected department senior- ity because he knew it would result in the layoff of the oldest employee, Showalter. Accordingly, we hold that the Magistrate Judge erred in holding that Showalter did not adduce evidence from which a reasonable factfinder could disbelieve UPMC's articulated **19 justification for terminating Showalter.
III.
For these reasons, we reverse the grant of summary judgment in favor of UPMC and remand for further pro- ceedings.
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