Simpson v. Kay Jewelers

Opinions of the United

1998 Decisions States Court of Appeals

for the Third Circuit

4-24-1998

Simpson v. Kay Jewelers

Precedential or Non-Precedential:

Docket 97-3224

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Filed April 24, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-3224

SANDRA L. SIMPSON

Appellant

v.

KAY JEWELERS,

Division of Sterling, Inc.

On Appeal From the United States District Court

For the Western District of Pennsylvania

(D.C. Civ. No. 95-cv-00270J)

Submitted Under Third Circuit LAR 34.1(a)

January 22, 1998

Before: BECKER,* STAPLETON, Circuit Judges, and

POLLAK, District Judge.**

(Filed: April 24, 1998)

KENNETH A. WISE, ESQUIRE

126 Locust Street

Harrisburg, PA 17108

Attorney for Appellant

Sandra L. Simpson

_________________________________________________________________

* Honorable Edward R. Becker, United States Circuit Judge for the

Third Circuit, assumed Chief Judge status on February 1, 1998.

** Honorable Louis H. Pollak, United States District Judge for the

Eastern District of Pennsylvania, sitting by designation.

MARTIN J. SAUNDERS, ESQUIRE

Jackson, Lewis, Schnitzler &

Krupman

One PPG Place, 28th Floor

Pittsburgh, PA 15222

Attorney for Appellee Kay Jewelers

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

This is an appeal by Sandra Simpson from the grant of

summary judgment for defendant Kay Jewelers in a suit

alleging age discrimination in violation of the Age

Discrimination in Employment Act ("ADEA"), 29 U.S.C.A.

SS 621-34 (1985 & Supp. 1997), and the Pennsylvania

Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43,

SS 951-63 (1991 & Supp. 1997).1 Simpson contends that

_________________________________________________________________

1. In relevant part, the ADEA provides that

It shall be unlawful for an employer --

(1) to fail or refuse to hire or to discharge any individual or

otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's age;

(2) to limit, segregate, or classify his employees in any way which

would deprive or tend to deprive any individual of employment

opportunities or otherwise adversely affect his status as an

employee, because of such individual's age.

29 U.S.C. S 623(a). In relevant part, the PHRA provides that

It shall be an unlawful discriminatory practice . . . [f]or any

employer because of the . . . age . . . of any individual or

independent contractor, to refuse to hire or employ or contract

with,

or to bar or to discharge from employment such individual or

independent contractor, or to otherwise discriminate against such

individual or independent contractor with respect to compensation,

hire, tenure, terms, conditions or privileges of employment or

contract, if the individual or independent contractor is the best

able

and most competent to perform the services required.

Pa. Stat. Ann. tit. 43, S 955.

2

evidence of the more favorable treatment of one allegedly

similarly situated younger employee is sufficient to permit

the inference that the employer's proffered reason for her

demotion is a pretext for discrimination. We reject this

contention and hold that a plaintiff does not create an issue

of fact merely by selectively choosing a single comparator

who was allegedly treated more favorably, while ignoring a

significant group of comparators who were treated equally

to her.

Simpson also contends that pretext can be inferred from

alleged inconsistencies between Kay Jewelers' proffered

reasons and its actions. We also reject this contention and,

following Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983

F.2d 509 (3d Cir. 1993) (pretext turns on the qualifications

and criteria identified by the employer, not the categories

the plaintiff considers important), conclude that Simpson

has not presented evidence sufficient to infer that Kay

Jewelers' proffered explanations were a pretext for

discrimination. We therefore affirm.

I.

Plaintiff, Sandra Simpson, was an employee of Kay

Jewelers in the DuBois Mall in Clearfield County,

Pennsylvania. Kay Jewelers was a chain of retail jewelry

stores, which was purchased by Sterling, Inc. in 1990.

Simpson was originally hired as a bookkeeper in May,

1973, and promoted to assistant manager in 1976. She was

promoted to store manager in 1979, a position she held

until her demotion in 1994.

From 1991 to 1994, Simpson's forte was her individual

jewelry sales. The overall store sales, however, were

considered deficient. Kay Jewelers set sales quotas for each

of its stores, taking into account such factors as economic

conditions, mall conditions, and competition. From

September 1991 to March 1994, Simpson's store satisfied

its monthly store sales quota eight out of thirty-one

months. During the fourteen months immediately prior to

her demotion, it met quota three times. The district

manager repeatedly indicated on Simpson's evaluations

that she needed to improve her quota performance and

3

increase store sales.2 The 1991, 1992, and 1994

evaluations identified increased sales as "major

developmental needs." The 1993 evaluation stated that

Simpson needed to "work to get 6/6 [quotas]" and "improve

[store sales] to min of 103% [of planned sales]." The district

manager repeatedly identified increased staff training, role

playing, and staff motivation as necessary to improve

overall sales. The "action plan for development" in each

evaluation from 1991 through 1994 listed the need for daily

staff training and role playing. At least twice, the district

manager told Simpson she would be demoted if she did not

meet the store sales quotas.

In March 1993, after Simpson failed to meet sales quotas

in any of the preceding six months, the district manager

created a Get It Done list ("GID"), which identified problem

areas and defined "action plans" to correct the problems. In

the GID, the district manager stated that Simpson's

performance in areas other than store sales were basically

up to standard, but that sales, the most important area,

was lacking. The district manager concluded that "lack of

training, direction, staffing, store moral[e], and aggressive

sales efforts" were the "key reason[s] for the substandard

sales production." Furthermore, the district manager

recommended that if "compliance is not obtain[ed] and

results achieved that [Kay Jewelers] should consider a

management change (demotion, not termination)." Id.

As part of the GID, Simpson was instructed to maintain

a sixty-day log of daily training sessions to be held with

each employee. Simpson testified at her deposition that

daily training was held, but not with each employee each

day. She also testified that some, but "not a lot" of role

playing was conducted. One of Simpson's employees

testified that she never received training through role

playing. Another employee testified that role playing was

not conducted on a daily basis. The store met its sales

quotas for both months during the sixty-day period.

However, from the end of the GID period through March

_________________________________________________________________

2. Simpson had two district managers during the period in question.

William Miller was district manager through August 1991. Mark Law was

district manager from August 1991 through March 1994.

4

1994, the store sales quotas were met only once out of the

ten months. In March 1994, the district manager

recommended that Simpson be demoted because of her

unacceptable store sales and continuous failure to train

and motivate staff to meet sales quotas. The

recommendation was approved by two Vice Presidents, and

Simpson was demoted to sales associate at the age of 57.

Simpson was replaced by Becky Bush, a 42 year old

woman.

Simpson filed a claim with the Equal Employment

Opportunity Commission ("EEOC") in May 1994, alleging

age discrimination. The EEOC determined there was no

reasonable cause to believe that there was unlawful

discrimination. Simpson then filed suit in the district court

for the Western District of Pennsylvania alleging

discrimination in violation of the ADEA and PHRA. After

discovery, Kay Jewelers moved for summary judgment. The

magistrate judge concluded that Simpson had failed to

make out a case of pretext, and recommended that

summary judgment be entered for Kay Jewelers. The

district judge adopted the magistrate judge's report and

granted Kay Jewelers' motion for summary judgment. This

timely appeal followed.

The district court exercised jurisdiction pursuant to 28

U.S.C. SS 1331, 1367. We exercise appellate jurisdiction

pursuant to 28 U.S.C. S 1291 and our review of the district

court's grant of summary judgment is plenary. Ersek v.

Township of Springfield, 102 F.3d 79, 83 (3d Cir. 1996).3

_________________________________________________________________

3. In reviewing a grant of summary judgment we

(i) resolve conflicting evidence in favor of the nonmovant, (ii) do

not

engage in credibility determinations, and (iii) draw all reasonable

inferences in favor of the nonmovant. The movant has the burden of

pointing out that evidence cognizable in a motion for summary

judgment which the movant believes entitles it to summary

judgment; the nonmovant must then respond by pointing to

sufficient cognizable evidence to create material issues of fact

concerning every element as to which the nonmoving party will bear

the burden of proof at trial.

Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

5

II.

Simpson advances a pretext claim which is perforce

analyzed under the three steps of the McDonnell Douglas

line of cases, see McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817 (1973); Texas Dep't of Community

Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981); St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742

(1993), that we have applied to ADEA cases, see e.g.,

Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.

1995).4 We set forth the familiar McDonnell Douglas

framework in the margin.5 We will not discuss steps one

_________________________________________________________________

4. It has also been applied to PHRA cases. See Bernard v. Bethenergy

Mines, Inc., 837 F. Supp. 714, 715 (W.D. Pa. 1993), aff'd, 31 F.3d 1170

(3d Cir. 1994); Fairfield Township Volunteer Fire Co. v. Commonwealth,

609 A.2d 804, 805 (Pa. 1992).

5. Under the McDonnell Douglas line of cases, as applied to the ADEA

and the analogous provision of the PHRA, there are three steps in the

analysis of pretext discrimination cases. See McDonnell Douglas, 411

U.S. at 802-04, 93 S.Ct. at 1824-25. First, the plaintiff must establish a

prima facie case of discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. at

2746-47. This is done if she shows that she (1) is a member of the

protected class, i.e. at least 40 years of age, 29 U.S.C. S 631(a), (2) is

qualified for the position, (3) suffered an adverse employment decision,

and (4) in the case of a demotion or discharge, was replaced by a

sufficiently younger person to create an inference of age discrimination,

Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987).

Second, upon such a showing by the plaintiff, the burden shifts to the

employer to produce evidence of a legitimate nondiscriminatory reason

for the adverse decision. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747.

Third, the plaintiff must then demonstrate that the employer's

articulated reason was not the actual reason, but rather a pretext for

discrimination. Id. at 507; 113 S.Ct. at 2747.

Simpson incorrectly defines the second step as shifting the burden to

the employer to show that its legitimate reason, alone, would have

induced the employment decision. Such a burden of showing that the

same decision would have been made absent discriminatory motives

applies in Price Waterhouse mixed motive cases, not McDonnell Douglas

pretext cases. See Price Waterhouse v. Hopkins , 490 U.S. 228, 276, 109

S.Ct. 1775, 1805 (1989) (O'Connor, J., concurring); Walden v. Georgia-

Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997), petition for cert. filed,

__

U.S.L.W. __ (U.S. Feb. 17, 1998) (No. 97-1350). See generally Mardell v.

Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n.6 (3d Cir. 1994)

6

and two of the framework because although the parties

contest the district court findings that Simpson established

a prima facie case of discrimination and that Kay Jewelers

proffered a legitimate nondiscriminatory reason for the

demotion, we assume arguendo that these steps have been

satisfied and proceed to step three of the analysis.6

To survive summary judgment when the employer has

articulated a legitimate nondiscriminatory reason for its

action, the plaintiff must

point to some evidence, direct or circumstantial, from

which a factfinder could reasonably either (1) disbelieve

the employer'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.

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To

discredit the employer's articulated reason, the plaintiff

need not produce evidence that necessarily leads to the

conclusion that the employer acted for discriminatory

reasons, Sempier, 45 F.3d at 732, nor produce additional

evidence beyond her prima facie case, Fuentes, 32 F.3d at

764. The plaintiff must, however, point to "weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate

_________________________________________________________________

(summarizing Price Waterhouse evidentiary scheme), vacated, 514 U.S.

1034, 115 S.Ct. 1397 (1995), and modified in part, 65 F.3d 1072 (3d Cir.

1995). This case is clearly not a mixed motive case because Simpson has

pointed to no direct evidence that the "decisionmakers placed substantial

negative reliance on [age] in reaching their decision." Price Waterhouse,

490 U.S. at 277, 109 S.Ct. at 1805; Walden, 126 F.3d at 513. Rather,

Simpson points to evidence from which she claims pretext can be

inferred. Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir. 1994).

6. We note, however, that Simpson's challenge to Kay Jewelers' proffered

reason is misplaced to the extent she claims that the explanation is

invalid because there was no evidence that it was the actual reason for

her demotion. In pretext discrimination cases such as this, "[t]he

employer need not prove that the tendered reason actually motivated its

behavior, as throughout this burden-shifting paradigm the ultimate

burden of proving intentional discrimination always rests with the

plaintiff." Fuentes, 32 F.3d at 763 (emphasis added).

7

reasons [such] that a reasonable factfinder could rationally

find them `unworthy of credence' " and hence infer that the

proffered nondiscriminatory reason "did not actually

motivate" the employer's action. Id. at 764-765 (quoting

Ezold, 983 F.2d at 531).

To show that discrimination was more likely than not a

cause for the employer's action, the plaintiff must point to

evidence with sufficient probative force that a factfinder

could conclude by a preponderance of the evidence that age

was a motivating or determinative factor in the employment

decision. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,

1111 (3d Cir. 1997). For example, the plaintiff may show

that the employer has previously discriminated against her,

that the employer has discriminated against other persons

within the plaintiff's protected class or within another

protected class, or that the employer has treated more

favorably similarly situated persons not within the

protected class. Fuentes, 32 F.3d at 765.

Kay Jewelers asserts that Simpson was demoted because

she repeatedly failed to attain the store sales quotas and

failed to adequately train and motivate her staff to meet

quotas. Simpson does not dispute her failure to attain the

store sales quotas or to adequately train her staff, but does

make numerous arguments in an attempt to both discredit

these reasons and show that discrimination was more likely

than not the motivating cause of her demotion. Simpson

primarily relies on the fact that Dolly Field, a younger

manager, was not demoted or fired.7 Simpson argues that

she and Field were similarly situated because their stores

were the same size, they were supervised and evaluated by

the same district manager, and their sales quotas took into

account the economics of store location.8 Simpson submits

that her performance was superior to Field's because in

_________________________________________________________________

7. Dolly Field became a store manager in 1991. She was 26 years old at

the time Simpson was demoted.

8. Kay Jewelers argues that the two stores are not comparable, pointing

to differences in mall occupancy rates, local competition, and store

appearance. The district court assumed the stores were comparable. We

will not address the issue in light of the flaws in Simpson's arguments

discussed infra.

8

both 1993 and 1994 her evaluation scores for sales were

higher than Field's and both she and Field received an

overall rating of "good".9 Simpson then claims that despite

being evaluated superior to Field, Field was retained as

manager, while she was demoted; Field was praised, while

she was criticized; and Field received a higher score in

"store performance areas," a category Simpson argues is

directly related to store sales. According to Simpson, this

evidence of Field's more favorable treatment discredits Kay

Jewelers' proffered reasons and leads to the inference that

age discrimination was more likely than not the motivating

cause of her demotion. Simpson's reliance on Field is

misplaced for the reasons that follow.

III.

First, Simpson's reliance on Field is misplaced because

she cannot selectively choose a comparator. The plaintiff

has the burden of demonstrating that similarly situated

persons were treated differently. Burdine, 450 U.S. at 258,

101 S.Ct. at 1096. The employer's actions are considered in

light of its actions towards the allegedly more favored

group, in this case younger managers. Ezold 983 F.2d at

527; McDonnell Douglas, 411 U.S. at 804; 93 S.Ct. at 1825

(employer may take adverse action, but only if based on

criteria applied to members of all races). However, the mere

favorable treatment of one younger manager as compared

_________________________________________________________________

9. The evaluation forms indicate that Simpson's overall scores were 38.2

in 1993 and 35.8 in 1994, both equivalent to a "needs improvement"

rating; whereas Field's scores were 40.3 and 40.5, respectively, both

equivalent to a "good" rating. However, Simpson alleges that her overall

scores, based on the unmodified version of her 1993 evaluation and the

correction of an alleged error in the 1994 evaluation, were "40" in both

years, equivalent to a "good" rating. The original 1993 evaluation was

modified when the district manager reduced by two the points given to

Simpson in the "charge accounts" category. The district manager

contends that the change was made because he erroneously awarded

points for performance that was actually below the corporate standard.

Simpson alleges that the 1994 scoring for sales production was incorrect

because her 90% performance in store sales versus planned sales should

have warranted two points within the category and an additional 3.8

points overall.

9

to one older manager may not be sufficient to infer age

discrimination.

This is not to say that evidence of the more favorable

treatment of a single member of a non-protected group is

never relevant, but rather that the evidence can not be

viewed in a vacuum. See Ezold, 983 F.2d at 539 (viewing

record as a whole in finding insufficient evidence that

plaintiff was treated more severely than her male

associates); Waldron v. SL Indus., Inc., 56 F.3d 491, 496-97

(3d Cir. 1995) (considering evidence that one younger

manager was treated more favorably despite having

difficulties similar to plaintiff, where additional evidence

tended to discredit employer's proffered reason). A decision

adversely affecting an older employee does not become a

discriminatory decision merely because one younger

employee is treated differently. See Billet v. CIGNA Corp.,

940 F.2d 812, 827-28 (3d Cir. 1991) (finding plaintiff's

evidence of younger employees benefiting from company

reorganization insufficient to withstand directed verdict for

employer). The ultimate inquiry is whether the decision was

motivated by the affected employee's age. Id. at 827.

We find instructive the Seventh Circuit's decision in Bush

v. Commonwealth Edison Co. There, the court held that just

as an employer cannot insulate itself from claims of racial

discrimination by identifying a token black person whom it

treated with abnormal leniency, a black plaintiff cannot

establish racial discrimination by singling out one white

person who was treated more favorably when there were

other white persons who were treated less favorably than

other black persons. 990 F.2d 928, 931 (7th Cir. 1993).

"Such a pattern, in which blacks sometimes do better than

whites and sometimes do worse, being random with respect

to race, is not evidence of racial discrimination." Id. We

agree, because to hold otherwise would be to permit the

inference of discrimination anytime a single member of a

non-protected group was allegedly treated more favorably

than one member of the protected group, regardless of how

many other members of the non-protected group were

treated equally or less favorably.

Such an inference may be acceptable at the prima facie

stage of the analysis, see Burdine, 450 U.S. at 253, 101

10

S.Ct. at 1094 (recognizing that plaintiff's burden to

establish a prima facie case is not "onerous"), where the

inquiry is based on a few generalized factors, Hicks 509

U.S. at 516, 113 S.Ct. at 2752, but not necessarily at the

pretext stage where the factual inquiry into the alleged

discriminatory motives of the employer has risen to a new

level of specificity, see id.; Burdine, 450 U.S. at 255, 101

S.Ct. at 1095. We recognize, as did the Seventh Circuit in

Bush, that freedom from discrimination is "an individual

rather than a group entitlement." Bush, 990 F.2d at 931;

29 U.S.C. S 623(a)(1) (prohibiting age discrimination against

any "individual"); see also Connecticut v. Teal, 457 U.S.

440, 453-55, 102 S.Ct. 2525, 2534-35 (1982) (recognizing

that similar provision in Title VII protects individual

employee, rather than group). However, there still must be

evidence from which to infer discrimination apart from the

fact that some members of one group are sometimes treated

better and sometimes treated worse than members of

another group. Bush, 990 F.2d at 931. As stated by the

district court, the plaintiff can not "pick out one comparator

who was not demoted amid a sea of persons treated the

same as her" to establish a jury question. Simpson v. Kay

Jewelers, No. 95-270J, mem. order at 2 (W.D. Pa. Mar. 18,

1997) (footnote omitted).

Simpson relies solely on Field as a comparator in arguing

that evidence of less favorable treatment gives rise to an

inference of discrimination. She does not discuss any of the

thirty-five other managers who, between 1992 and 1994,

were demoted to sales associate positions because of their

store sales performance.10 Of the thirty-five, all were

younger than Simpson and thirty-four were under the age

of 40. Thus, even if Simpson was similarly situated to Field

but treated less favorably, see infra, Simpson's reliance on

a single member of the non-protected class is insufficient to

give rise to an inference of discrimination when Simpson

was treated the same as thirty-four members of the non-

_________________________________________________________________

10. Simpson incorrectly asserts that Kay Jewelers did not present any

evidence as to the reason for these thirty-five demotions. An affidavit

submitted by Kay Jewelers and Kay Jewelers' answers to Simpson's

interrogatories state that the thirty-five persons were demoted because of

problems with store sales. Simpson presents no evidence to the contrary.

11

protected class. Simply stated, to show that Kay Jewelers'

proffered reasons were pretext, Simpson can not pick and

choose a person she perceives is a valid comparator who

was allegedly treated more favorably, and completely ignore

a significant group of comparators who were treated equally

or less favorably than she.

IV.

Moreover, even if Field were a proper comparator,

Simpson's reliance on her would still be misplaced. In

determining whether similarly situated nonmembers of a

protected class were treated more favorably than a member

of the protected class, the focus is on the particular criteria

or qualifications identified by the employer as the reason

for the adverse action. Ezold, 983 F.2d at 528. The

employee's positive performance in another category is not

relevant, id., and neither is the employee's judgment as to

the importance of the stated criterion, Healy v. New York

Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988).

Furthermore, the court does not subjectively weigh factors

it considers important. Brewer v. Quaker State Oil Refining

Corp., 72 F.3d 326, 331 (3d Cir. 1995); see also Ezold, 983

F.2d at 528 (rejecting district court's subjective weighing of

plaintiff's abilities). Rather, the plaintiff must point to

evidence from which a factfinder could reasonably infer that

the plaintiff satisfied the criterion identified by the employer

or that the employer did not actually rely upon the stated

criterion. Fuentes, 32 F.3d at 767. Compare Brewer, 72

F.3d at 331-32 (finding that plaintiff's receipt of

performance bonus raised issue of fact as to whether

employer's performance-based explanation for discharging

plaintiff was pretext) with Ezold, 983 F.2d at 528-29

(finding that plaintiff's abilities in areas other than legal

analysis not relevant in determining if law firm's legal

analysis explanation for not promoting plaintiff was

pretext).

Simpson relies completely on evaluation scores in

arguing that, as compared to Field, her allegedly superior

performance but less favorable treatment discredits Kay

Jewelers' proffered reasons for her demotion. Kay Jewelers,

however, did not represent that it relied on evaluation

12

scores. Thus, Simpson's view of her performance, as

measured by evaluation scores, is not relevant. Instead,

focusing on the stated criterion -- sales quotas-- Field's

performance was superior to Simpson's, a result Simpson

does not dispute. Field met or surpassed her quotas six out

of the fourteen months preceding Simpson's demotion;

whereas Simpson only met her quotas three out of the

same fourteen months.11 Accordingly, Simpson's evaluation

evidence does not create a genuine issue of material fact.

V.

A.

Simpson's other arguments are also inadequate to

survive summary judgment. Simpson argues that the use of

sales quotas as the criterion is suspect. She claims that

using performance on sales quotas is inconsistent with

evaluation scoring, and points to the fact that despite Field

having satisfied her sales quota more often than Simpson,

Field's evaluation scores in all sales criteria were equal to

or below Simpson's. This, according to Simpson, counsels

that meeting sales quotas is not determinative of the

adequacy of a manager's performance. Implicit in this

argument is the contention that evaluation scores are more

indicative of performance. Whether sales quotas or

evaluation scores are a more appropriate measure of a

manager's performance is not for the court (or factfinder) to

decide. Healy, 860 F.2d at 1216 ("our inquiry . . . is not an

independent assessment of how we might evaluate[an]

employee"). "The question is not whether the employer

made the best, or even a sound, business decision; it is

_________________________________________________________________

11. We find no significance in Kay Jewelers' use of sales data from March

1994, the same month Simpson was demoted, in arguing that Field was

more qualified for the position. Simpson was demoted on or about March

29 and the decision to demote was made approximately one week earlier.

Thus, Simpson's March performance was not likely a factor in the

decision. Nonetheless, if we eliminate March 1994 from the equation,

Field still performed better than Simpson: Field met her quotas five out

of thirteen months, whereas Simpson met her quotas three out of

thirteen months.

13

whether the real reason is [discrimination]." Keller, 130

F.3d at 1109 (quoting Carson v. Bethlehem Steel Corp., 82

F.3d 157, 159 (7th Cir. 1996)) (alteration in original).

In addition, citing Bray v. Marriott Hotels, 110 F.3d 986

(3d Cir. 1997), Simpson claims that this alleged

inconsistency with evaluation scores raises an inference of

improper motives. In Bray, we found that various

discrepancies in how the employer evaluated the criteria

purportedly relied on to promote a white person over the

black plaintiff, was sufficient to raise questions of fact as to

the employer's motives. 110 F.3d at 993-97 (finding

discrepancies in the timing of employee evaluations, priority

given to factors in ranking candidates, and interpretation of

occupational grade levels, all of which were identified as

reasons for not promoting plaintiff). Bray, however, is

clearly distinguishable. In Bray the discrepancies were in

the use of criteria identified as determinative by the

employer, see id., whereas in this case Simpson is pointing

to discrepancies between a criterion identified by Kay

Jewelers (sales quotas) and a criterion asserted only by

Simpson (evaluation scores). As we have said, the focus is

on the criteria identified by the employer, not the criteria

only the plaintiff thinks are important. Healy, 860 F.2d at

1216.12

_________________________________________________________________

12. Simpson also asserts that the use of sales quotas is suspect because

some of the store managers purportedly demoted for failure to meet

quotas were actually "proficient" at meeting their quotas. Simpson points

to five managers who minimally met their store sales quotas fifty percent

of the time (ten out of twelve times, five out of seven times, four out of

six times, seven out of twelve times, and three out of six times).

Identifying five out of thirty-five persons who performed substantially

better than Simpson at meeting sales quotas does not reasonably lead to

the inference that Kay Jewelers did not rely on sales quotas in demoting

Simpson. The issue is "whether discriminatory animus motivated the

employer, not whether the employer [was] wise, shrewd, prudent, or

competent." Fuentes, 32 F.3d at 765. Thus, this alleged contradiction,

which may raise a question as to the wiseness of demoting those five

managers, does not give rise to the inference that Kay Jewelers demoted

Simpson for something other than the asserted nondiscriminatory

reason. To the contrary, the fact that younger managers with superior

performance were demoted can be viewed as evidence that age was

irrelevant.

14

B.

Simpson argues that the district manager's failure to

assist in training, and his interference with store

operations, gives rise to an inference that the district

manager was seeking to obtain a predetermined result --

her demotion -- for discriminatory reasons. Specifically,

Simpson claims that the district manager failed to conduct

two two-day training sessions as indicated on the GID,13

was not helpful when present at the store and on one

occasion verbally berated the employees such that their

morale was low, and failed to provide Simpson with the

discount codes necessary to offer merchandise discounts

greater than fifteen percent.

To the extent the inference can be made that the district

manager's behavior impacted the store's sales, the

evidence, without more, does not rise to such a level that a

factfinder could reasonably conclude by a preponderance of

the evidence that Kay Jewelers acted with a discriminatory

motive. Cf. Bonura v. Chase Manhattan Bank, N.A., 795

F.2d 276 (2d Cir. 1986) (finding sufficient evidence to

uphold jury verdict for plaintiff allegedly discharged for

substandard performance where evidence led to inference

that supervisor interfered with employee's efforts, as well as

that employee performed adequately and employer sought

to hire younger persons).

C.

Simpson argues that the failure to train explanation is

inconsistent with Kay Jewelers' actions. She asserts that if

training had actually been important then the district

manager would have conducted the training sessions

pursuant to the GID, and the home office would have sent

a trainer to the store. Furthermore, Simpson points to the

_________________________________________________________________

13. It is not clear that Simpson is accurately viewing the facts. Simpson

claims the district manager was to conduct training sessions, however

the GID only indicates that the district manager was to visit the store,

which may be interpreted as merely requiring the district manager to

follow-up on Simpson's efforts at training. Nonetheless, we resolve

conflicting evidence in favor of Simpson.

15

absence of any further counseling on training after her

successful completion of the GID. Viewing this evidence in

the light most favorable to Simpson,14 at most it leads to an

inference that Kay Jewelers did not consider it important to

assist Simpson in training her staff; it can not be inferred

that it was unimportant for Simpson to improve training on

her own accord. The record is replete with evidence,

contrary to Simpson's assertion that there is no evidence,

that Kay Jewelers considered staff training important. From

1991 to 1994, each of Simpson's evaluations indicated that

she needed to conduct more training. The GID specifically

required training to be conducted on a daily basis.

Accordingly, there is no basis from which to infer that the

failure to train explanation was "unworthy of credence."15

Fuentes, 32 F.3d at 765. Simpson makes three additional

arguments, which we find completely without merit.16

_________________________________________________________________

14. Simpson contends she successfully completed the GID, but Kay

Jewelers argues that she did not implement all of the instructions on the

list.

15. Simpson also claims that Kay Jewelers did not raise the failure to

train explanation to the EEOC. Kay Jewelers' position statement to the

EEOC states:

As a result of the Charging Party's declining performance level and

lack of responsive initiative . . . Charging Party was demoted from

Store Manager to full-time sales employee . . . based upon Charging

Party's failure to improve store sales. . . . [I]t was Charging

Party's

responsibility to maintain . . . the sales of the entire store by

training, motivating and managing the store staff.

Appendix at 731a. Even if this statement could be read as not

specifically indicating that Simpson's failure to train was a reason for

her

demotion, it does not make Kay Jewelers' subsequent raising of the

explanation pretextual. "[T]he mere fact that a defendant relies on a post

hoc [explanation] does not in and of itself create a factual dispute about

whether the [explanation was] pretextual." Healy, 860 F.2d at 1215. The

plaintiff must point to evidence that demonstrates there is reason to

disbelieve the explanation. Id. at 1215-16; see also McCoy v. WGN

Continental Broadcasting Co., 957 F.2d 368, 374 (7th Cir. 1992)

(declining to bind defendants to "positions they initially assert in state

administrative proceedings by rendering any different position a per se

pretext"). Simpson has not pointed to any such evidence.

_________________________________________________________________

16. Simpson asserts that (1) the district manager's downward revision of

her evaluation score reflects adversely on Kay Jewelers' veracity; (2) the

16

In sum, Simpson has not provided evidence sufficient to

discredit Kay Jewelers' proffered reasons or to permit the

inference that discrimination was more likely than not a

motivating or determinative cause for her demotion.

Accordingly, the district court's order granting summary

judgment to the defendant will be affirmed.

_________________________________________________________________

downward departure in evaluation scores between 1992 and 1993 is

suspicious; and (3) Kay Jewelers' claim of low store morale due to

Simpson's alleged "stealing" of associates' sales is a baseless

accusation.

As we discussed previously, the focus is on the"qualification[s] the

employer found lacking." Ezold, 983 F.2d at 528. Kay Jewelers found

that Simpson was deficient in meeting her store sales quotas and in

training her staff; Kay Jewelers did not rely on the evaluation scores or

the alleged stealing. Kay Jewelers indicated that store morale, in

general,

was one of several causes for the inadequate store sales. It was not, as

put forth by Simpson, an alternate reason for the demotion. Thus,

viewing these claims in the light most favorable to Simpson, the evidence

does not tend to discredit Kay Jewelers' articulated reasons.

17

POLLAK, District Judge, concurring.

I join the judgment and opinion of the court.

I write separately merely to call attention to a legal

question unresolved in this circuit that lurks unobtrusively

in a footnote of the court's opinion. The question is whether

this circuit's conventional summary of the elements of a

prima facie ADEA case of discriminatory discharge or

demotion is too narrowly stated insofar as it appears to

contemplate that the plaintiff must establish that she has

actually been replaced by a significantly younger person.

Because appellant Simpson was in fact replaced by a

significantly younger person, the question is of no moment

in the present litigation, and there is, therefore, no present

need for this court to resolve it. But the question is one

that is likely to surface in some future ADEA case. So

flagging the question now may serve to stimulate some

useful thinking by those interested in this field of law.

In footnote 5 the court outlines the "three steps in the

analysis of pretext discrimination cases" which must be

pursued "[u]nder the McDonnell Douglas line of cases, as

applied to the ADEA and the analogous provision of the

PHRA." The footnote explains that the first of the three

steps consists of "establish[ing] a prima facie case of

discrimination," which a plaintiff accomplishes"by showing

that she (1) is a member of the protected class, i.e. at least

40 years of age, 29 U.S.C. S631(a), (2) is qualified for the

position, (3) suffered an adverse employment decision, and

(4) in the case of a demotion or discharge, was replaced by

a sufficiently younger person to create an inference of age

discrimination." In support of this four-phase formulation

of a prima facie ADEA discharge or demotion case footnote

5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897

(3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). The citation

is an apposite one: in Chipollini, an ADEA discharge case,

this court set forth essentially the same four-phase

formulation.

Chipollini, in turn, derived the four-phase formulation

from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir.

1985), cert. denied, 474 U.S. 1057 (1986). In Maxfield this

court adapted to ADEA discharge cases the Supreme

18

Court's four-phase formulation in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), of a prima facie Title VII case

of racially discriminatory refusal to hire. Under McDonnell

Douglas the plaintiff must, as an initial matter, establish:

"(i) that he belongs to a racial minority; (ii) that he applied

and was qualified for a job for which the employer was

seeking applicants; (iii) that, despite his qualifications, he

was rejected; and (iv) that, after his rejection, the position

remained open and the employer continued to seek

applicants from persons of complainant's qualifications."

411 U.S. at 802. The Maxfield discussion of the elements of

a prima facie ADEA discharge case dealt with the question

whether the fourth phase required a showing that the

complainant had been replaced by a person younger than

forty -- i.e., a person not within the statutorily protected

class. This court rejected such a construction of the ADEA:

"we hold that an ADEA plaintiff may establish the fourth

element of the McDonnell Douglas test for a prima facie case

by showing that s/he was replaced by a person sufficiently

younger to permit an inference of age discrimination." 766

F.2d at 793.

What should be noted is that what this court was called

on to decide in Maxfield was whether replacement by a

significantly younger person within the protected class

could be regarded as tending to establish a prima facie case

of discharge contravening the ADEA, and this court's

answer was in the affirmative. What the Maxfield court was

not called on to decide -- or at least was not expressly

called on to decide -- was whether replacement by someone

significantly younger is an indispensable ingredient of a

prima facie ADEA discharge case, or whether, in a

circumstance in which the discharged plaintiff is not

replaced, other evidence can support a prima facie case. In

this connection it may be relevant that the Supreme Court

in McDonnell Douglas did not require, as the fourth phase

of a prima facie race-based-refusal-to-hire case, that the

plaintiff establish the hiring of a non-minority person to fill

the job for which the plaintiff was rejected; rather, the

Court required the more limited showing that "the position

remained open and the employer continued to seek

applicants from persons of complainant's qualifications."

411 U.S. at 802.

19

The language from McDonnell Douglas which has just

been quoted may signify that the Maxfield/Chipollini

formulation has (inadvertently) been crafted in overly

narrow terms. But that is not an obligatory inference. Race

discrimination and age discrimination are sufficiently

different phenomena so that the elements of Title VII's

regulatory regime may not be automatically transferable in

their entirety to the ADEA context. And in the ADEA

context many cases seem to reflect an expectation that an

ADEA discharge or demotion plaintiff will show

replacement, either achieved or anticipated. As the Second

Circuit put the matter in Haskell v. Kaman Corp., 714 F.2d

113, 119 n.1 (2d Cir. 1984): "Under the McDonnell Douglas

formula as applied in ADEA cases a plaintiff may make out

a prima facie case of age discrimination by showing that he

belongs to the protected group (40 to 70 years of age), that

he was sufficiently qualified to continue holding his

position, that he was discharged, and that his position

thereafter was held by someone younger than himself or

held open for such a person." On the other hand, the Fifth

Circuit has said, in Olitsky v. Spencer Gifts, 964 F.2d 1471,

1478 n.19 (5th Cir. 1992), cert. denied, 507 U.S. 909

(1993): "In McDonnell Douglas Corp. v. Green, 411 U.S. 799,

802. . . . the Supreme Court formulated an evidentiary

procedure for race discrimination cases which has been

adapted for ADEA cases. First the plaintiff must prove a

prima facie case of age discrimination, which consists of

evidence that the plaintiff: (1) was discharged; (2) was

qualified for the position; (3) was within the protected class

at the time of discharge; (4) was replaced by someone

outside the protected class; or (5) by someone younger; or

(6) show otherwise that his discharge was because of age."

(The Fifth Circuit's Olitsky formulation has its origins in

Elliot v. Group Medical & Surgical Service, 714 F.2d 556,

562 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984), a

Fifth Circuit case referred to by this court in Maxfield. See

766 F.2d at 792.).

Determining whether the Fifth Circuit is closer to the

mark than the Second Circuit may be postponed for

another day, since resolution of the question one way or

another can have no bearing on the present appeal. As

noted above, Ms. Simpson was in fact replaced by a

20

significantly younger person, and, accordingly, she was able

to make out a prima facie case within the letter of Maxfield

and Chipollini. The weakness of Ms. Simpson's case came at

a later stage. As the opinion of the court makes plain, the

magistrate judge and the district court correctly concluded

that her case on the merits was too insubstantial to survive

Kay Jeweler's motion for summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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