42 F.3d 825 (3rd Cir. 1994), 94-5143, Torre v. Casio, Inc.

Docket Nº:94-5143.
Citation:42 F.3d 825
Party Name:Gabriel TORRE, Appellant, v. CASIO, INC., Appellee.
Case Date:December 21, 1994
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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42 F.3d 825 (3rd Cir. 1994)

Gabriel TORRE, Appellant,


CASIO, INC., Appellee.

No. 94-5143.

United States Court of Appeals, Third Circuit

December 21, 1994

Argued Sept. 14, 1994.

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Donato J. Battista (argued), Larry M. Cole, Cole & Cole, Jersey City, NJ, for appellant.

Michael G. Shannon (argued), Phillips, Lytle, Hitchcock, Blaine & Huber, New York City, for appellee.

Before STAPLETON, LEWIS and ALARCON, [*] Circuit Judges.


LEWIS, Circuit Judge.

In this case, we address the standard that must be applied at summary judgment to a plaintiff's claims of discrimination under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (the "ADEA"). Because we find that the district court erred in granting summary judgment to the appellee, Casio, Inc. ("Casio"), we will reverse and remand for trial.


The dispute in this case involves Casio's transfer and termination of Gabriel Torre during the period March through June, 1990. Because this case is before us upon grant of a summary judgment, we will explore the facts in evidence in some depth below. The following sketch, however, provides the context for this dispute.


Torre was just shy of his 52nd birthday when he was hired by Casio, an electronics company, in January 1983, as a regional sales manager ("RSM") in Casio's consumer products division. He left Casio in early 1985, but when he found that his new job required him to travel more than he desired, he returned to Casio in August 1985, with full seniority rights. Shortly after his rehire, Torre was transferred and became RSM in Casio's audio/visual division ("AVD") for the eastern sales region, with responsibility for the East Coast of the United States.

In November 1987, Gary Hand became general manager-AVD and, shortly thereafter, vice-president-AVD. In both positions he was Torre's direct supervisor, and he remained so until April 1989. At that point Barry Collins became national sales manager-AVD, a position subordinate to Hand; as such, Collins became the immediate supervisor of Torre and two other RSMs in the audio/visual division, Mark Horowitz (age 40 in 1989) and Al Olsberg (age 37 in 1989).

Torre alleges that Hand caused him numerous problems and contends that Hand was driven by a desire to replace Torre with a younger manager. Torre contends that Hand's alleged animus, evidence of which we will discuss below, ultimately led Casio on April 1, 1990, to transfer Torre, as a "subterfuge," to the dead-end position of "product marketing manager," from which he could be fired at a more propitious--and seemingly innocent--moment. That time allegedly came on May 6, 1990, when Casio notified

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Torre that he would be terminated as part of a reduction in force.

Casio suggests a different story. Casio contends that its senior management, including the company's president, John McDonald, and executive vice-president for planning, Eisei Nakagaki, came to believe that Torre should be fired after his name repeatedly showed up on management's "problem" list. In particular, management had come to believe that Torre was lazy and unwilling to undertake the travel necessary to service his region. Nakagaki twice instructed Collins to fire Torre, but Casio contends that, rather than doing as he was told, Collins spoke to Connie Herrel, the company's administrative vice-president, whose duties included, among other things, human resources and legal affairs. Collins told Herrel that Torre would sue for age discrimination if he was terminated, and Herrel said that she would take care of the problem.

Casio further contends that, in order to save Torre from termination and avoid litigation expenses, Herrel designed the new product marketing manager position by taking advantage of certain personnel vacancies and combining responsibilities to create a new position which would permit Torre to stay on and continue to have significant duties. The new position, Casio argues, satisfied both Casio and Torre: it took Torre out of sales, where his performance had been criticized, and put him in a position that took advantage of his experience, paid him the same amount of money, and required less travel.

Casio notes that it was experiencing economic problems in 1989 and that the business downturn continued through 1990. As a result, the company was forced to reduce its labor force and terminate certain West Coast operations. In the midst of this economic squeeze, Casio contends, one of its competitors, Zenith Corporation, filed charges with the United States Department of Commerce alleging that Casio had violated anti-dumping regulations. The Commerce Department decided to initiate formal administrative review of the charges in mid-April 1990.

According to Casio, the Commerce Department investigation threw the company into turmoil, forcing it to reduce expenses and build reserves. Thus, Casio contends, senior management--specifically McDonald, Nakagaki, and Peter Owada, Casio's executive vice-president for finance--met to carry out a directive from Casio's parent company in Japan to pare all unnecessary expenses. Part of that exercise included reviewing the Casio organizational chart with only one criterion in mind: can Casio live without this person? Casio contends that Torre failed that test, and was terminated as a result.

The district court found that, during the period January through June 1990, Casio discharged 26 employees as part of a reduction in force. Of those discharged, 19 were under the age of 40. Only Torre, at 59, was over 50. Between April 1990 and October 1991, the total number of Casio employees declined from 258 to 209.

Since Torre's termination, Casio notes, no one has filled the position of product marketing manager-AVD. Also, from the time Torre was transferred to the product marketing manager position through 1992, Casio never again had more than two RSMs in the audio-visual division.


After his termination, Torre brought a claim of age discrimination before the Equal Employment Opportunity Commission ("EEOC"), but the EEOC rejected the claim after Casio explained that it had terminated Torre due to continued poor market conditions. Thus, Torre brought this suit, alleging age discrimination in violation of the ADEA as well as state common law wrongful discharge. Casio moved for summary judgment, and the district court granted the motion on a number of grounds: (1) there was no direct evidence that discrimination had motivated either the transfer or the termination; (2) Torre had failed to present a prima facie case under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), because he failed to demonstrate that he had been replaced; and (3) Casio had introduced evidence that its reasons for transferring and terminating Torre were legitimate and nondiscriminatory, and Torre had failed to introduce any evidence

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that the reasons proffered were pretextual and that the real reason for the transfer and termination were discriminatory. 1 Torre appeals. The district court had jurisdiction over this case under 29 U.S.C. Sec. 623(a) and 28 U.S.C. Sec. 1331. We have jurisdiction under 28 U.S.C. Sec. 1291.



Section 623(a)(1) of Title 29 of the United States Code provides that "[i]t shall be unlawful for an employer ... 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." 29 U.S.C. Sec. 623(a)(1). A plaintiff may demonstrate age discrimination under this portion of the ADEA by either direct or indirect evidence. " 'Direct evidence of discrimination would be evidence which, if believed, would prove the existence of the fact [in issue] without inference or presumption.' " Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990), quoting and adding emphasis to Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir.1989). 2 However, evidence is not direct where the trier of fact must infer the discrimination on the basis of age from an employer's remarks. Perry v. Prudential-Bache Securities, Inc., 738 F.Supp. 843, 851 (D.N.J.1989), aff'd without opinion, 904 F.2d 696 (3d Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (1990). 3

Torre does not contend that he has presented a direct evidence case of age discrimination. 4 Rather, he urges his claim under the shifting-burden analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Appellant's Br. at 20. (As we noted in McKenna v. Pacific Rail Service, 32 F.3d 820 (3d Cir.1994), although McDonnell Douglas was itself a race discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, its shifting-burden analysis is applicable to age discrimination claims, as well. McKenna, 32 F.3d at 825 n. 3.) "Under the familiar McDonnell Douglas shifting-burden analysis applicable to federal employment discrimination cases involving indirect proof of discrimination, the plaintiff bears the burden of proving a relatively simple prima facie case, which the employer must rebut by articulating a legitimate, non-discriminatory reason for its actions." McKenna, 32 F.3d at 825. Once the employer provides one or more justifications for its decision, the presumption of age discrimination created by the plaintiff's prima facie case is dispelled, and the plaintiff must demonstrate that the employer's proffered reasons are pretextual.

As we recently noted in Fuentes v. Perskie, 32 F.3d 759 (3d Cir.1994), "[a]t trial, the plaintiff [in a discrimination case] must...

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