232 F.3d 1271 (9th Cir. 2000), 99-15885, Coleman v. The Quacker Oats Co.

Docket Nº:99-15885 No. 99-15886 No. 99-15887
Citation:232 F.3d 1271
Party Name:PERRY E. COLEMAN; BARBARA J. COLEMAN, husband and wife, Plaintiffs-Appellants, v. THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee. JERRY JENEY; PEGGY JENEY, husband and wife, Plaintiffs-Appellants, v. THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee. PERRY E. COLEMAN; BARBARA J. COLEMAN; JOHN RUSSELL; JERR
Case Date:November 20, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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232 F.3d 1271 (9th Cir. 2000)

PERRY E. COLEMAN; BARBARA J. COLEMAN, husband and wife, Plaintiffs-Appellants,

v.

THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee.

JERRY JENEY; PEGGY JENEY, husband and wife, Plaintiffs-Appellants,

v.

THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee.

PERRY E. COLEMAN; BARBARA J. COLEMAN; JOHN RUSSELL; JERRY JENEY; DENIS SCHWEITZER, a divorced man; JOHN TALLARITI; KENNETH NERO; GARY PEEPLES; J. THOMAS CHRISTENSON; SHARON RUSSELL; PEGGY JENEY; TERRINE TALLARITI; KATHLEEN FLAMM NERO; JAN MARIE IMMKER PEEPLES; KAYE CHRISTENSON; CAROL COLLINS, a single person, Plaintiffs,

and

JOSEPH GENTILE; LORRAINE GENTILE, husband and wife, Plaintiffs-Appellants,

v.

THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee.

No. 99-15885 No. 99-15886 No. 99-15887

United States Court of Appeals, Ninth Circuit

November 20, 2000

Argued and Submitted February 17, 2000

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Arthur Pederson (argued) and Karen Karr, Mohr, Hackett, Pederson, Blakley & Randolph, P.C., Phoenix, Arizona, and James Hill, Phoenix, Arizona, for the plaintiffs-appellants.

Martin Harris (argued), Connelly Sheehan Moran, Chicago, Illinois, and Antonio Dominguez, Dominguez & Associates, P.C., Phoenix, Arizona, for the defendant-appellee.

Appeals from the United States District Court for the District of Arizona Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-96-0828-PHX-RCB. D.C. No. CV-96-0822-PHX-RCB. D.C. No. CV-95-1516-PHX-RCB

Before: Betty B. Fletcher, William C. Canby, Jr., and Diarmuid F. O'Scannlain, Circuit Judges.

Opinion by Judge O'Scannlain; Dissent by Judge B. Fletcher

O'SCANNLAIN, Circuit Judge:

We must decide whether former employees have raised a genuine issue of material fact as to whether they were illegally fired because of age.

I

A

Jerry Jeney ("Jeney"), Joseph Gentile ("Gentile") and Perry Coleman ("Coleman"), along with hundreds of other employees nationwide, were laid off by the Quaker Oats Company ("Quaker") in Arizona during a series of reductions-in-force ("RIFs") from 1994 to 1995.

1

Jeney, a 55-year-old white male,1 began working for Quaker in 1987 after it had purchased the company at which Jeney was employed. At Quaker, Jeney worked for six years as a sales representative, a position equivalent to that which he had held at other companies since 1969. Jeney's responsibilities involved visiting supermarkets to rotate products, to arrange displays, to ensure adequate stocks, and to check if the supermarkets displayed all the company's products they were supposed to carry.

In 1993, a RIF threatened Jeney's job. Impressed with Jeney's skills, Ken Willis, a Quaker supervisor, created a new position for him--Area Retail Manager ("ARM"). Jeney was the only ARM in the Quaker organization nationwide and in this position assisted individuals with various accounts. Jeney's previous responsibilities as sales representative had been outsourced to independent food brokers. His new position required him to inspect and to grade the performance of the outside

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brokers and to prepare diagrams showing how toarrange products on the shelves. Jeney held this job until the 1994 RIF.

In 1994, Quaker implemented a nationwide business reorganization which eliminated almost all lower level sales positions. Quaker laid off 300 employees, including Jeney. The work of these employees was farmed out to outside brokers. This 50 percent reduction in workforce added high-paying jobs as it cut most low-ranking jobs. In order to select the employees who would remain, Quaker sent a human resources team to rate employees in several categories. Most of these categories emphasized skills developed through headquarters (management) work.

The ranking evaluated employees in six categories: strategic business planning, advanced fact-based selling, category expertise, customer operations understanding, leadership ability, and communications skills. All employees were also evaluated on their learning agility and versatility. Jeney received poor scores in those categories representing headquarters skills with which Jeney had no experience: strategic business planning, advance fact-based selling, and category expertise. He received average scores in the remaining categories. Jeney also received an average score in "Learning agility," defined as one's ability to learn from past mistakes. In "Versatility," Jeney received a rating of well-placed, meaning that he was good at his current job, but not likely to advance. Overall he received a grade of "B." During this process, Quaker monitored the RIF to ensure that it did not have an adverse effect on race or gender diversity in the company. No action was ever taken because no such effect was identified.

Positions at Quaker are ranked by "hay points. " A one-level promotion entails an increase of 100 hay points. Jeney's position as an ARM was 366 hay points. His previous position as a sales representative represented 301 hay points. Following the evaluation process, Quaker had to fill six positions in the Phoenix, Arizona area where Jeney worked. Ken Willis, the same employee who had created the ARM position specially for Jeney the previous year, did not select him to fill any of these job openings.

The first four job openings were for account executives, positions ranked at 636 or 732 hay points. The fifth position was a broker field manager at 732 hay points. The final opening was for a customer manager, a position with 438 hay points, much closer to Jeney's then current level of 366. All candidates selected for the account executive positions had previously held comparable positions with 732 hay points. Three had received an A rating and the fourth a B+ rating. The fourth individual also had years of headquarters experience. The candidate chosen to fill the high-level broker field manager position (732 hay points) had received a B+ rating and had managed brokers previously. Finally, Willis chose Bob Dumais (a forty-year-old white male) for the Customer Manager position. Dumais had received a B+ rating and had headquarters experience. All six individuals chosen for these positions were white, five were men, and three were forty or older.

Several of these employees, however, chose to leave the company. One of the account executives resigned. He was replaced by a candidate who had received an A rating, but who also resigned within a month. His replacement was Bryan Hardman, a customer manager from Los Angeles who had received an A rating. In November 1994, when another account executive resigned, he was replaced by Bob Dumais, the previous customer manager, leaving that position open.

Jeney was considered for the vacant customer manager position after his former manager recommended him for it. Quaker decided against Jeney, however, at least in part because it did not consider him to be "promotable." Instead, Rucker chose Ken Oliver (a 34-year-old white male) with a degree in marketing who was pursuing an

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M.B.A. in the evenings. Jeney was laid off. By the time the RIF was completed, Quaker had laid off two-thirds of its employees aged 40 and older, and one-third of those employees under age 40.

2

Gentile, a 53-year-old white male, began working for Quaker in 1978 as a sales representative. He was later promoted to customer manager, the position he had when he was discharged in 1994. Gentile's responsibilities involved handling large supermarket accounts for both breakfast and pet foods. Although Gentile's performance had earned him various awards and positive performance reviews, particularly with regard to his relationships with the buyers, Gentile's reviews had recently worsened as his position required greater analytical responsibilities. Quaker also received a complaint about him from an independent broker.

During the 1994 RIF, Quaker evaluated Gentile using the same system employed with Jeney. Gentile received a B rating overall, garnering praise for his customer relationships, but criticism for his analytical skills. In Arizona, where Gentile worked, Quaker filled six sales positions. The first four job openings were for account executives, the fifth position was a broker field manager, and the final opening was for a customer manager. All of these jobs went to employees who had received higher ratings. All six individuals chosen for these positions were white, five were men, and three were forty or older.

3

Coleman, a 49-year-old male, began working for Quaker in 1972. At Quaker, Coleman rose from account representative to account executive, the position he held until he was discharged. Coleman's responsibilities included preparing business planning initiatives and managing relations with assigned customers. Coleman survived the 1994 RIF that ended the careers of Jeney and Gentile. In fact, at that time Quaker promoted Coleman from customer manager to account executive.

Then, in 1995, Quaker sold its pet foods business and undertook another, smaller RIF, eliminating two sales positions in Phoenix. The four account executives and one customer manager were evaluated by their supervisors, Julie Forbes and Bob Blair. Coleman ranked third with 13 points, placing him in the middle of the group. Lisa Rodriguez (16 points) and Bryan Hardman (14 points) ranked above him; Bob Dumais (12 points) and Ken Oliver (11 points) ranked below him. On the basis of these rankings, Quaker decided to terminate...

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