Bodenheimer v. PPG Industries, Inc.

Decision Date03 November 1993
Docket NumberNo. 93-3316,93-3316
Citation5 F.3d 955
Parties63 Empl. Prac. Dec. P 42,661 Clifford J. BODENHEIMER, Plaintiff-Appellant, v. PPG INDUSTRIES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Clement P. Donelon, Donelon & Majoria, Metairie, LA, for plaintiff-appellant.

Stefanie J. Allweiss, Keith M. Pyburn, Jr., McCalla, Thompson, Pyburn & Ridley, New Orleans, LA, for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

I. FACTS AND PROCEDURAL HISTORY

Clifford Bodenheimer began working for PPG Industries in June 1955 and ultimately was promoted to Branch Manager of PPG's New Orleans office in January 1977. In 1990, PPG implemented a workforce reduction and office consolidation plan for its southwest region. The New Orleans office and the Baton Rouge offices were merged into one branch office located in New Orleans. In June 1991, PPG terminated Bodenheimer, who was 57 at the time. Betty Fuzette, who had been managing PPG's Baton Rouge office, was appointed Branch Manager of the newly consolidated New Orleans/Baton Rouge office. Fuzette was 51 at the time.

Bodenheimer sued PPG, alleging that PPG violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq., the Louisiana Age Discrimination in Employment Act, LA.REV.STAT.ANN. Secs. 23:971 et seq., and the Louisiana Human Rights Act, LA.REV.STAT.ANN. Secs. 51:2231 et seq. In his pleadings, Bodenheimer asserted that he was terminated because he was over 55 and eligible for retirement benefits. 1 PPG responded that Bodenheimer was terminated because of the overall workforce reduction and that Fuzette (and not Bodenheimer) was appointed Branch Manager of the combined New Orleans/Baton Rouge office because of her superior management skills and job performance. PPG filed a motion for summary judgment, which the district court granted. Bodenheimer appeals. 2

II. STANDARD OF REVIEW

In employment discrimination cases, we review summary judgments de novo, applying the same standard as the district court. Waltman v. Int'l. Paper Co., 875 F.2d 468, 474 (5th Cir.1989). Federal rules provide for summary judgment where no genuine issue as to any material fact exists. FED.R.CIV.P. 56(c). A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In making its determination, the court must draw all justifiable inferences in favor of the nonmoving party. Id. at 255, 106 S.Ct. at 2513. 3

III. ANALYSIS

a. St. Mary's Evidentiary Requirements

The ADEA provides that "it shall be unlawful for an employer ... to discharge any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1). Given that many employment discrimination cases, such as the instant one, involve elusive factual questions, the Supreme Court has devised an evidentiary procedure that allocates the burden of production and establishes an orderly presentation of proof. 4 In age discrimination cases, the plaintiff is required to make a prima facie case, wherein he must demonstrate that: (1) he was discharged; (2) he was qualified for the position; (3) he was within the protected class at the time of discharge; and (4) he was either i) replaced by someone outside the protected class, ii) replaced by someone younger, or iii) otherwise discharged because of his age. SeeFields v. J.C. Penney Co., 968 F.2d 533, 536 (5th Cir.1992). If the plaintiff meets these requirements, a presumption of discrimination arises which the defendant must then rebut by articulating a legitimate, nondiscriminatory reason for the discharge. Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1478 n. 19 (5th Cir.1992). Once the employer satisfies this burden, the presumption of age discrimination established by the employee's prima facie case dissolves. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981).

Once the employer has met its burden of production, the plaintiff's burden of persuasion then arises and he must prove that the proffered reasons are not just pretexts but pretexts for age discrimination. Prior to the Supreme Court's recent decision in St. Mary's Honor Ctr. v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), confusion reigned among the circuit courts as to whether the plaintiff could prove employment discrimination simply by showing that the defendant's reasons were not credible. See St. Mary's, --- U.S. at ----, 113 S.Ct. at 2750. The Court in St. Mary's put the issue to bed. To prevail ultimately, the plaintiff must prove, through a preponderance of the evidence, that the employer's reasons were not the true reason for the employment decision and that unlawful discrimination was. St. Mary's, --- U.S. at ----, 113 S.Ct. at 2747. With these principles regarding the parties' respective evidentiary obligations in employment discrimination cases in mind, we now turn to the case at hand.

b. PPG's Burden of Production: Did PPG Proffer a Legitimate, Non-Discriminatory Reason for Terminating Bodenheimer? 5

An employer meets its burden of production in employment discrimination cases by proffering admissible evidence of an explanation that would be legally sufficient to justify a judgment for the employer. Guthrie v. Tifco Indus., 941 F.2d 374, 376 (5th Cir.1991). PPG asserts that Bodenheimer was terminated as part of the overall workforce reduction and office consolidation plan. In support of its summary judgments motion, PPG tendered evidence that shows PPG consolidated a number of offices in the southwest region. A number of employees (including Bodenheimer) and their positions were adversely affected. PPG further submits that Fuzette was appointed branch manager of the newly consolidated office because of her superior management skills and job performance.

Bodenheimer responds that PPG failed to satisfy its burden of production because the evidence used to meet the burden was not believable. Glen Hartman, PPG's Regional Manager who terminated Bodenheimer and was responsible for supervising the workforce reduction, incorrectly stated in his affidavit that he terminated employees both older and younger than Bodenheimer when in fact Bodenheimer was the oldest. This misstatement, Bodenheimer argues, renders the evidence unreliable, thereby creating a genuine factual issue. Bodenheimer's reasoning is unpersuasive. The degree of impeachability of evidence at this stage is irrelevant. St. Mary's directs us to avoid making any credibility determinations at this stage because "the burden-of-production determination necessarily precedes the credibility-assessment stage." St. Mary's, --- U.S. at ----, 113 S.Ct. at 2748 (emphasis original). The employer need only articulate a lawful reason, regardless of what its persuasiveness may or may not be. We agree with the district court that PPG's proffered reasons are legitimate and nondiscriminatory and, therefore, satisfy PPG's burden of production. 6

c. Bodenheimer's Burden of Persuasion: Are PPG's Reasons a Pretext for Age Discrimination?

Because we are reviewing a summary judgment, we need not determine whether Bodenheimer actually proved PPG's reasons were a pretext for age discrimination. Rather, we must assess whether Bodenheimer tendered factual evidence that would lead a jury to reasonably conclude that PPG's reasons are a pretext for age discrimination. FED.R.CIV.P. 56(c); St. Mary's, --- U.S. at ----, 113 S.Ct. at 2747. We recognize that St. Mary's did not involve review of a summary judgment, whereas this case does. The case nonetheless is controlling as to what showing Bodenheimer must make to avoid summary judgment. In particular, because Bodenheimer would be required to prove at trial, through a preponderance of the evidence, that PPG's proffered reasons are a pretext for age discrimination, he must now produce sufficient evidence to establish that PPG's reasons were pretexts for age discrimination. We find that he did not.

Bodenheimer principally relies on a comment Hartman made to Bodenheimer regarding retirement benefits when the employee was terminated. Bodenheimer notes, and PPG does not deny, that Hartman stated, "Cliff, I hope when I get to your age, somebody does the same thing for me." Bodenheimer asserts that Hartman's comment is direct evidence of age discrimination. We disagree. Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact (i.e., unlawful discrimination) without any inferences or presumptions. SeeCarter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir.1989). Taken by itself, Hartman's comment proves only that Hartman desires a similar retirement package upon his retirement. The comment sheds absolutely no light on the central issue before us: whether Bodenheimer's age was a factor in Hartman's decision to terminate him. We agree with the district court's characterization of the comment as a casual, facially-neutral remark. 7

Bodenheimer's remaining pieces of evidence are even less useful for purposes of establishing a genuine issue of material fact. Bodenheimer proffers the affidavits of two PPG customers who stated that the quality of service of PPG's New Orleans branch office had deteriorated after the departure of Bodenheimer. Bodenheimer also submits his own affidavits, wherein he self-servingly claims he was "much better qualified" than Fuzette "because he has almost twice as many total years in the glass business." Bodenheimer reminds us that, in Walther, we effectively said that a genuine issue of material fact exists when evidence shows the plaintiff was "clearly better qualified" than younger employees who were retained. Walther v. Lone Star Gas...

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