Anthony J. Chipollini v. Spencer Gifts, Inc., a Delaware Corporation. Appeal of Anthony J. Chipollini

JAMES HUNTER, III, Circuit Judge,

dissenting:

The majority correctly sets out the elements necessary to make out a prima facie case under the ADEA, and accurately describes Burdine’s shifting burdens of proof under the statute. The majority errs, however, in asserting that the plaintiff can overcome the defendant’s motion for summary judgment merely by making a showing that the defendant’s proffered explanation for the plaintiff’s dismissal is pretextual. In my view, it is not enough for the plaintiff to show pretext in order to withstand the defendant’s motion for summary judgment; I believe he must go further, and show that the proffered explanation is a pretext specifically for age discrimination.

I agree with the majority that summary judgment should be granted only where “no genuine issue as to a material fact remains for trial, and the moving party is entitled to judgment as a matter of law.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038 , 97 S.Ct. 732 , 50 L.Ed.2d 748 (1977). Of course, no genuine issue of material fact remains for trial “unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., —U.S.-, 106 S.Ct. 2505, 2511 , 91 L.Ed.2d 202 (1986). Therefore, when ruling on a summary judgment motion, a judge must “view the evidence presented through the prism of the substantive evidentiary burden” that the parties must bear at trial. Anderson, 106 S.Ct. at 2513 . As the majority points out, if “the nonmovant will bear the burden of persuasion at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant’s burden of proof at trial. See Celotex Corp. v. Catrett, —U.S.-, 106 S.Ct. 2548 [ 91 L.Ed.2d 265 ] (1986).”

In an ADEA action the plaintiff has the burden of persuasion on the issue of discriminatory intent. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087 , 105 S.Ct. 592 , 83 L.Ed.2d 702 (1984). Furthermore, the plaintiff must persuade the jury not only that the defendant’s proffered explanation is pretextual, but also that it is “a pretext for unlawful discrimination.” Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937 , 104 S.Ct. 348 , 78 L.Ed.2d 314 (1983) (emphasis added); see also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981) (sex discrimination plaintiff should have the opportunity to show that proffered explanation is “pretext for discrimination”). Since none of Chipollini’s evidence even raised the issue of age as a factor in his dismissal, he has made no showing that he will be able to bear his ultimate burden of persuasion at trial on the critical issue of discrimination. Therefore, the judge below correctly entered summary judgment for Spencer in accordance with Celotex and Anderson .

The majority today shifts the burden of persuasion from the plaintiff to the defendant in clear derogation of controlling precedent. See Burdine, 450 U.S. at 253 , 101 S.Ct. at 1093 (“The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.”). Despite the majority’s bland assertion that a “defendant which is less than honest in proffering its reason for discharge risks an unnecessary age discrimination verdict,” it is the plaintiff who must prove discrimination; the defendant is not required to prove the absence thereof. See *903 Trustees of Keene State College v. Sweeney, 439 U.S. 24 , 99 S.Ct. 295 , 58 L.Ed.2d 216 (1978) (per curiam). Yet, by allowing Chipollini to overcome Spencer’s motion for summary judgment without introducing any evidence pointing to age discrimination, the majority has effectively and impermissibly shifted the burden of persuasion from Chipollini to Spencer. While the majority does not frankly admit that its decision today will provide such an unwarranted windfall to ADEA plaintiffs, a careful examination of the doctrine shows this to be the case.

Burdine grants the plaintiff the beneficial presumption of discrimination only as long as that presumption remains unrebutted by the defendant. See Burdine, 450 U.S. at 254-55 , 101 S.Ct. at 1094-95 . Once the defendant has “artieulate[d] some legitimate, nondiscriminatory reason for the employee’s rejection,” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 , 93 S.Ct. 1817, 1824 , 36 L.Ed.2d 668 (1973), the initial presumption is “dispel[led].” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578 , 98 S.Ct. 2943, 2950 , 57 L.Ed.2d 957 (1978). While the evidence introduced to support the prima facie case continues to have probative force, it no longer carries with it the “legally mandatory inference of discrimination.” Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. In considering Spencer’s motion for summary judgment in this case, the district court had before it only the facts that constituted Chipollini’s initial prima facie case and Chipollini’s claim that Spencer’s proffered explanations for his dismissal were untrue. Taken together, these facts cannot possibly support the plaintiff’s burden of persuasion, unless the majority believes that the plaintiff’s initial presumption of discrimination was effectively restored once the plaintiff proved pretext. See White v. Vathally, 732 F.2d 1037, 1043 (1st Cir.), cert. denied, 469 U.S. 933 , 105 S.Ct. 331 , 83 L.Ed.2d 267 (1984). There is, however, no Supreme Court authority that would support such a resurrection. See id. But see Thombrough v. Columbus & Greenville R. Co., 760 F.2d 633, 640 (5th Cir.1985) (“unlike Humpty-Dumpty, the employee’s prima facie case can be put back together again, through proof that the employer’s proffered reasons are pretextual”). By concluding that the plaintiff can carry his burden of persuasion through such a minimal showing, the majority actually places the burden on the defendant to disprove plaintiff’s claim. While this result may be favored by some, it is contrary to the law, which requires the plaintiff, not the defendant, to bear the burden of persuasion. See Burdine, 450 U.S. at 248 , 101 S.Ct. at 1089 ; Sweeney, 439 U.S. at 24-25 , 99 S.Ct. at 295-96 .

Affirmance of the district court’s decision is compelled not only by the law as stated in Burdine, Massarsky, Celotex, and Anderson , but by logic and fairness as well. An employer’s proffered reason for terminating an employee may be pretextual without violating the ADEA or any other civil rights statute. An employer motivated by ill-will, nepotism, or unpublicized financial problems in his termination of an employee is just as likely to use a pretextual explanation for his action as is an employer motivated by statutorily-prohibited discrimination. See, e.g., Holly v. City of Naperville, 603 F.Supp. 220 , 230-31 n. 4 (N.D.Ill.1985); Askin v. Firestone Tire & Rubber Co., 600 F.Supp. 751, 755 (E.D.Ky.1985), aff 'd, 785 F.2d 307 (6th Cir.1986). Employers may even resort to pretext for benign reasons, such as the desire to spare the feelings of a loyal employee whose competence has declined. Under such circumstances, we have no power under the ADEA to provide redress. “An employer can fire an employee for any reason, fair or unfair, so long as the decision to terminate is not based on age or some other protected category.” Kier v. Commercial Union Ins. Cos., 808 F.2d 1254, 1259 (7th Cir.1987). By allowing the plaintiff to withstand defendant’s motion for summary judgment merely by showing pretext, the majority opens the door for ADEA recovery for termination based on any of the non-discriminatory reasons enumerated above. It is for this reason that “although *904 the plaintiff may show pretext ‘either directly ... or indirectly by showing that the employer’s proffered explanation is unworthy of credence,’ [Burdine, 450 U.S. at 256 , 101 S.Ct. at 1095 ] such a showing does not relieve the plaintiff of the burden of persuasion on the ultimate issue of discriminatory intent.’’ White v. Vathally, 782 F.2d at 1043 (emphasis added).

I do not mean to imply by the foregoing that ADEA plaintiffs can only prove age discrimination by direct evidence. It is clear from the decisions handed down by the Supreme Court that plaintiffs may bear their burden of persuasion by direct or indirect evidence. See United States Postal Serv. v. Aikens, 460 U.S. 711 , 714 n. 3, 103 S.Ct. 1478 , 1481 n. 3, 75 L.Ed.2d 403 (1983). The indirect evidence by which the plaintiff may bear his burden of persuasion may consist of “evidence that [older] employees were treated less favorably than comparably situated [younger] employees,” Henderson v. City of Mexico, 798 F.2d 320, 323 (8th Cir.1986); “evidence that the employer was engaged in a general youth movement of which the claimant may have been one victim,” Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 243 (4th Cir.1982); evidence that the statutorily protected employee’s dismissal was obtained in a manner contrary to regular company practices and procedures, see Loeb v. Textron, Inc., 600 F.2d 1003, 1017 (1st Cir.1979); “company documents that might be interpreted as indicating a preference for younger employees,” id. at 1018 ; or “statistics evidencing an employer’s pattern and practice of discriminatory conduct.” Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1135 (5th Cir.1983) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 , 93 S.Ct. 1817, 1825 , 36 L.Ed.2d 668 (1973)). The “evidence” at issue in this case — Chipollini's arguments that Spencer’s explanations for his dismissal are pretextual — constitutes neither direct or indirect evidence of age discrimination. His allegations of pretext provide no evidence of age discrimination whatsoever. The district court correctly noted the absence of either direct or indirect evidence to support Chipollini's , claim of age discrimination:

[N]othing the plaintiff has proffered raises an issue of age as a factor that was considered along with the other intangibles. No statement made to plaintiff, no memos among defendant’s decision-making employees have been submitted; no statistics have been compiled; no pattern or practice of discrimination has been suggested. To allow a jury to infer age discrimination would simply be to invite speculation.

The majority also finds that “[t]he district court erred in weighing competing inferences and resolving disputed facte.” I believe that even if Chipollini’s view of his qualifications, the effect of his health on his work performance, the “energy warden” controversy, and his ability to work with others were fully credited, there is no possible inference of age discrimination based on Spencer’s and Chipollini’s differing perceptions on these matters. Since these facts were not material to the ultimate question of discriminatory intent, the district court’s resolution of them was not error. See E.E.O.C. v. Westinghouse Elec. Corp., 725 F.2d 211 , 218 (3d Cir.1983) (“A summary judgment order is not defeated, however, merely because an issue of fact exists; the factual issue in dispute must be material to the resolution of the dispute.”), cert. denied, 469 U.S. 820 , 105 S.Ct. 92 , 83 L.Ed.2d 38 (1984).

For the foregoing reasons, I respectfully dissent, and would affirm the judgment of the district court.