Brewer v. Quaker State Oil Refining Corp.

• Decision Date: 14 December 1995
• Docket Number: No. 95-3101,95-3101
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 753, 67 Empl. Prac. Dec. P 43,797, 64 USLW 2463 Judson C. BREWER, Appellant, v. QUAKER STATE OIL REFINING CORPORATION; Quaker State Corporation.
• Court: U.S. Court of Appeals — Third Circuit

Page 326

72 F.3d 326

69 Fair Empl.Prac.Cas. (BNA) 753,

67 Empl. Prac. Dec. P 43,797, 64 USLW 2463

Judson C. BREWER, Appellant, v. QUAKER STATE OIL REFINING CORPORATION; Quaker State Corporation.

No. 95-3101.

United States Court of Appeals, Third Circuit.

Argued Oct. 19, 1995.

Decided Dec. 14, 1995.

Samuel J. Cordes (argued), Ogg, Jones, DeSimone & Ignelzi, Pittsburgh, PA, for Judson C. Brewer.

Peter D. Post (argued), Robert B. Cottington, Reed, Smith, Shaw & McClay, Pittsburgh, PA, for Quaker State Oil Refining Corporation; Quaker State Corporation.

Robert J. Gregory, Equal Employment Opportunity Commission, Washington, DC, for amicus-appellant Equal Employment Opportunity Commission.

Before: SCIRICA, COWEN and ROTH, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Plaintiff-appellant Judson C. Brewer appeals the district court's grant of summary judgment in favor of his employer, Quaker State Oil Refining Corporation and Quaker State Corporation ("Quaker State"), on Brewer's Age Discrimination in Employment Act ("ADEA") claim, 29 U.S.C. Sec. 623 (1988), and the dismissal of his pendent state-law claim brought under Michigan's anti-discrimination statute, the Elliott-Larsen Civil Rights Act, Mich.Comp.Laws Secs. 37.2101-2804. Because the record reflects a genuine issue of material fact regarding whether Quaker State's asserted nondiscriminatory reasons for discharging Brewer are pretextual, we will reverse the district court's entry of summary judgment in favor of Quaker State and remand the matter for further proceedings.

I.

Brewer worked for Quaker State as a sales representative from 1968 until the time of his discharge in March 1992, at the age of fifty-three. He worked in the Pittsburgh office until it closed in 1989. During the course of his employment in Pittsburgh, Brewer was supervised by two different division managers, Bruce Drummond and Michael O'Donnell. During their respective tenures, both Drummond and O'Donnell encountered certain problems with Brewer's performance. For example, Drummond stated that Brewer's clients complained that they had run out of oil or had not seen their sales representative in some time. In January 1989, O'Donnell placed Brewer on a ninety-day probation for similar performance deficiencies, including customer complaints about running out of oil, poor follow-up with projects, inaccurate and incomplete paperwork, short work days, and lack of organization. Shortly after Brewer completed his probationary period, he was transferred to the Detroit division.

District Manager Paul Pfauser supervised Brewer in Detroit. In 1990 Pfauser gave Brewer acceptable performance ratings, but criticized him for poor planning. Pfauser advised Brewer that he needed to work more closely with his client accounts and set higher standards for himself. At the end of 1990 Brewer received a sales bonus for exceeding the company's sales quota for that year.

In May 1991, shortly before his second annual review under Pfauser's supervision, Pfauser notified Brewer that various facets of his performance required improvement. Pfauser counseled Brewer to be more efficient, to follow-up with requests both from his customers and from management, and to improve the timeliness and completeness of his sales reports. In his formal evaluation in June 1991, Brewer received marginal or unacceptable ratings in all categories.

In August 1991, Brewer was placed on a ninety-day probation for his performance deficiencies. At that time, Pfauser criticized Brewer for performing poorly in the areas of client communications and organization. In December 1991, Brewer again exceeded the company's sales quota and received another bonus. Brewer was the only salesperson in the Detroit region to receive such a bonus for both 1990 and 1991.

Brewer's personnel file for the years prior to 1990 was lost. However, it is not disputed that Brewer's mean performance evaluation rating from 1987 through 1990 was "3" out of a possible "5", which translates into "competent" by Quaker State's performance standards. Factoring in his evaluation for 1991, Brewer's overall average for 1987 to 1991 was 2.9.

At the end of the ninety-day probation, Pfauser repeated his concerns that Brewer was spending too little time in his territory and not adequately communicating with customers. At this time Brewer's probationary period was extended for an additional sixty days. On February 18, 1992, Pfauser wrote a memorandum to Brewer documenting performance problems, including Brewer's misprocessing orders, and failure to advise his accounts of credit problems.

Brewer challenged Pfauser's appraisal, commenting that his performance had improved. Brewer also has claimed that Pfauser was "nitpicking," and that the problems were the result of petty misunderstandings, or were not really problems at all. Nonetheless, in the days that followed the February 18, 1992 memorandum, Pfauser sought and obtained approval to terminate Brewer's employment. Brewer was discharged on March 9, 1992, and this lawsuit ensued. The district court granted summary judgment against Brewer.

II.

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 to review the final order of the district court, which exercised jurisdiction under 29 U.S.C. Sec. 626(c)(1), 28 U.S.C. Secs. 1331 and 1343(a)(4), and supplemental jurisdiction pursuant to 28 U.S.C. Sec. 1367.

On review of a district court's grant of summary judgment, we apply the same test the district court should have applied initially. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). Summary judgment is appropriate only when the admissible evidence fails to demonstrate a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Thereafter, the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the record, the court must give the nonmoving party the benefit of all reasonable inferences. Sempier, 45 F.3d at 727; Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991).

III.

The ADEA prohibits age discrimination in employment against any person over age forty. 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 that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under ADEA. See, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). 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 Department 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 order to establish a prima facie case, Brewer must show that he: (1) is over 40; (2) is qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to permit an inference of age discrimination. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). This showing creates a presumption of age discrimination that the employer can rebut by stating a legitimate nondiscriminatory reason for the adverse employment decision. Hicks, --- U.S. at ----, 113 S.Ct. at 2747; Sempier, 45 F.3d at 728. The plaintiff then has the opportunity to demonstrate that the employer's stated reason was not its true reason, but merely a pretext for discrimination. Hicks, --- U.S. at ----, 113 S.Ct. at 2747; Sempier, 45 F.3d at 728.

A.

The district court held that the disposition of this case turned on the third stage of the McDonnell Douglas analytical framework because Brewer had established a prima facie case of age discrimination, and Quaker State had articulated non-discriminatory reasons for Brewer's discharge. Brewer v. Quaker State Oil Ref. Corp., 874 F.Supp. 672, 681-82 (W.D.Pa.1995). We agree with the district court's analysis up to this point. It is undisputed that Brewer is a member of a protected class, was discharged by Quaker State, and was replaced by an individual not within the protected class. Moreover, Brewer was qualified for the position of sales representative. He worked as a Quaker State sales representative for twenty-three years. During his last five years on the job, he received overall evaluations that translated into "competent" by Quaker State's performance standards. Accordingly, Brewer has established a prima facie case of age discrimination.

Quaker State has also established legitimate, non-discriminatory reasons for terminating Brewer's employment. Pfauser documented continuous performance problems, including poor follow-up on customer requests, poor communications with clients and with management, too little time spent in his territory, and late and ambiguous sales reports.

B.

We must next determine whether Brewer has met his burden of demonstrating that a factfinder could find that the allegedly legitimate reasons proffered for his discharge were only a pretext for discrimination in...