Barber v. CSX Distribution Services

• Decision Date: 16 October 1995
• Docket Number: Nos. 94-3604,No. 94-3653,No. 94-3604,94-3653,94-3604,s. 94-3604
• Citation: 68 F.3d 694
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 81, 67 Empl. Prac. Dec. P 43,758 Simon A. BARBER, Appellant, v. CSX DISTRIBUTION SERVICES, a Unit of CSX Transportation, Inc.; CSX Transportation, Inc., Appellants
• Court: U.S. Court of Appeals — Third Circuit

Page 694

68 F.3d 694

69 Fair Empl.Prac.Cas. (BNA) 81, 67 Empl.

Prac. Dec. P 43,758

Simon A. BARBER, Appellant No. 94-3604, v. CSX DISTRIBUTION SERVICES, a Unit of CSX Transportation Inc.; CSX Transportation, Inc., Appellants No. 94-3653.

Nos. 94-3604, 94-3653.

United States Court of Appeals Third Circuit.

Argued July 28, 1995.

Decided Oct. 16, 1995.

Theodore J. Kukunas (argued), Pittsburgh, PA, for Simon A. Barber.

Frederick W. Bode, III (argued), Dickie, McCamey & Chilcote, Pittsburgh, PA, for CSX Distribution Services and CSX Transportation, Inc.

Before: NYGAARD and McKEE, Circuit Judges and FULLAM, District Judge. ^*

OPINION OF THE COURT

McKEE, Circuit Judge.

Simon A. Barber appeals from the district court's entry of judgment in favor of his employer, CSX Transportation, Inc., following a jury verdict in favor of Barber. Barber sued under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1988) ("ADEA"), alleging discriminatory failure to promote and retaliation for his assertion of his discrimination claim. Although we agree that defendants ¹ were entitled to judgment as a matter of law on Barber's retaliation claim, we hold that the district court improperly overturned the jury's finding that defendants' failure to promote Barber was in violation of the ADEA. Therefore, we will reverse in part and remand to the district court for proceedings consistent with this opinion.

I. BACKGROUND

Simon Barber has been employed by CSX Transportation or its predecessors for the last thirty-eight years. During his tenure with CSX, Barber has served in various capacities of increasing responsibility and has received numerous merit or performance salary increases and letters of commendation. In February of 1987, Barber took the position of Chief Clerk essentially serving as the office manager in defendants' Pittsburgh sales office. The position of Territorial Account Executive became available in that office in March of 1990, and was posted on the company wide computer system. The Territorial Account Executive was responsible for the design, marketing and sale of CSX services.

Eight applications were submitted for the Territorial Account Executive position. CSX's Human Resources Department screened the applications and determined that only four of the applicants met the minimum qualifications. Those four were:

(1) Scott Delasandro, age 37--one year of railroad experience and no sales experience.

(2) Kathy Ball, age 44--twenty years of railroad experience, fifteen of which were in accounting and five of which were in telemarketing.

(3) Andrew Kelly, age 53--thirty-four years of railroad experience including his position as Sales Representative in the Pittsburgh sales office at the time he applied for the Territorial Account Executive position.

(4) Plaintiff, Simon Barber, then age 52--thirty-four years of railroad experience, including fourteen years of railroad sales experience and seven years of customer service experience.

Robert Edmonds, Director of Sales in the Pittsburgh sales office, was Barber's supervisor at the time, and was responsible for selecting the Territorial Account Executive whom Edmonds would also supervise. Edmonds interviewed the two younger applicants, Scott Delasandro and Kathy Ball, both of whom worked in the Baltimore regional office. Although he did not interview Andrew Kelly, Edmonds informally discussed the position with Kelly after Kelly submitted his application. However, Kelly withdrew his application after learning the salary. Edmonds did not interview or discuss the position with Barber.

Even though Edmonds did not formally interview either Kelly or Barber, Edmonds filled out an "Interview Report Form" for both of those applicants as well as for the two applicants whom he did interview. That interview report, dated April 5, 1990, stated that Barber was "qualified but [did] not possess the credentials of Kathy Ball" who was selected. Interestingly, Kathy Ball's interview report was dated May 2, 1990, nearly a month after she was actually selected.

On May 23, 1990, Barber wrote a letter to defendants' Human Resources Department questioning Edmonds' decision to award the position to Ball whom Barber felt was less experienced and less qualified than he was. Specifically, Barber's letter stated:

I recently submitted a Job Application Form for the position of Territorial Account Executive (Job Vacancy No. 199) at Pittsburgh, PA.

Mr. Robert W. Edmonds, Jr., Director-Sales, Pittsburgh, has informed me the position has been awarded to Ms. Kathy Ball from Telemarketing at Baltimore. In view of my 21 years of experience in this field (14 years direct sales and 7 years customer service), I am quite puzzled as to why the position was awarded to a less qualified individual.

I would greatly appreciate your response as to why I was not awarded this job.

App. at 363. Shortly thereafter, Edmonds called Barber into his office and expressed disappointment over that complaint. On November 28, 1990, Barber received notification that, as of December 5, 1990, his position as Chief Clerk was being eliminated as a result of a company wide reduction in force. Edmonds made the decision to eliminate Barber's position of Chief Clerk after receiving a mandate from management to eliminate one of three clerical positions in the Pittsburgh sales office. ²

On May 13, 1992, Barber filed this action in the United States District Court for the Western District of Pennsylvania. Barber's complaint alleged violations of the ADEA, gender discrimination under the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. (1988) ("Title VII"), and unlawful retaliation under both the ADEA and Title VII. The resulting trial was bifurcated and issues of liability were severed from any determination of damages. Barber's age discrimination claims were tried to a jury while his Title VII sex discrimination and retaliation claims were tried to the court. The court found in favor of CSX on Barber's Title VII claims and Barber does not appeal that ruling. However, the jury found that CSX violated the ADEA by failing to promote Barber because of age discrimination and by retaliating against him when he voiced his displeasure at not being promoted. Following trial, the court granted a defense motion for judgment as a matter of law on both the age discrimination and retaliation claims, notwithstanding the jury's special verdicts in favor of Barber. Barber now appeals that ruling. ³

II. DISCUSSION

We exercise plenary review of the district court's entry of an order granting CSX's motion for judgment as a matter of law. See Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892 (3d Cir.1994); Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir.1987), cert. denied, 488 U.S. 1004, 109 S.Ct. 782, 102 L.Ed.2d 774 (1989) (motion for judgment notwithstanding the verdict). Therefore, we must apply the same standard to this record as the district court. See Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253 (3d Cir.1986). We afford de novo review to the district court's conclusions of law, but review factual findings to "determine whether the evidence and justifiable inferences most favorable to [Barber] afford any rational basis for the verdict." Bhaya, 832 F.2d at 259.

A. AGE DISCRIMINATION CLAIM

The ADEA prohibits age discrimination in employment against an individual over age 40. 29 U.S.C. Sec. 623(a)(1). Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to the prohibition against discrimination contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under the ADEA. See, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). Thus, we follow the evidentiary framework first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), subsequently refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and recently clarified in St. Mary's Honor Center v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). In addition, Barber's failure to promote claim is analogous to a claim of failure to hire. Thus, in order to make out a prima facie case, Barber must show "1) that he belongs to the protected class, 2) that he applied for and was qualified for the job, 3) that despite his qualifications he was rejected, and 4) that the employer either ultimately filled the position with someone sufficiently younger to permit an inference of age discrimination or continued to seek applicants from among those having plaintiff's qualifications." Fowle v. C & C Cola, 868 F.2d 59, 61 (3d Cir.1989) (citations omitted).

Once a plaintiff establishes a prima facie case the law creates a presumption of unlawful discrimination, and the defendant employer must articulate a "legitimate nondiscriminatory explanation for the employer's adverse employment action." Seman v. Coplay Cement Co., 26 F.3d 428, 432 (3d Cir.1994). If the employer puts forth a legitimate business explanation, "then the presumption of discriminatory intent created by the employee's prima facie case is rebutted and the presumption simply 'drops out of the picture.' " Id. (quoting Hicks, --- U.S. at ----, 113 S.Ct. at 2749). The plaintiff then has an opportunity to show that the reasons proffered by the employer were a pretext for what, in reality, was a discriminatory motivation. See id. Of course, the ultimate burden to prove discrimination on the basis of age (burden of persuasion) remains with the plaintiff at all times. Hicks, --- U.S. at ----, 113 S.Ct. at 2749; Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Bhaya, 832 F.2d at 260.

The district court found that Barber established a prima facie case from which an inference of age...