Duffy v. Wheeling Pittsburgh Steel Corp.

• Decision Date: 10 July 1984
• Docket Number: No. 83-1776,83-1776
• Parties: 35 Fair Empl.Prac.Cas. 246, 34 Empl. Prac. Dec. P 34,527 DUFFY, Douglass M., Appellee, v. WHEELING PITTSBURGH STEEL CORP., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1393

738 F.2d 1393

35 Fair Empl.Prac.Cas. 246,

34 Empl. Prac. Dec. P 34,527

DUFFY, Douglass M., Appellee, v. WHEELING PITTSBURGH STEEL CORP., Appellant.

No. 83-1776.

United States Court of Appeals, Third Circuit.

Argued Jan. 26, 1984.

Decided July 10, 1984.

Paul A. Manion (argued), Manion, Alder & Cohen, P.C., Pittsburgh, Pa., for appellant.

John B. Langel (argued), Elizabeth W. Fox, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellee.

Before ADAMS and GARTH, Circuit Judges and COHEN, District Judge. ^*

OPINION OF THE COURT

GARTH, Circuit Judge:

Plaintiff Douglass Duffy brought suit against his former employer, Wheeling-Pittsburgh Steel Corporation ("Wheeling-Pittsburgh") under the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621, et seq. (1975) ("ADEA"). ¹ The district court held that Wheeling-Pittsburgh's discharge of Duffy violated the ADEA, based on the court's findings that Duffy had established a prima facie case of age discrimination and that Wheeling-Pittsburgh's proffered reason for discharging Duffy was a "mere pretext." The questions presented on this appeal are (1) whether the district court applied proper legal precepts in holding that a pretextual justification is equivalent to a finding of intentional discrimination under the ADEA; and (2) whether the district court's finding that Wheeling-Pittsburgh's justification for discharging Duffy was a pretext was clearly erroneous. We affirm, holding that there was no error of law and the district court's findings of fact were not clearly erroneous.

I.

Duffy had been employed as a salesman in the Philadelphia district office of Wheeling-Pittsburgh and its predecessor company from 1955 until 1980 when Wheeling-Pittsburgh terminated his employment as part of a 15% reduction in work force necessitated by weak economic conditions in the steel industry. Duffy was 59 years of age when his employment was terminated. Prior to May, 1980, there were six salesmen in the Philadelphia district. ² Wheeling-Pittsburgh terminated the four oldest and most highly paid salesmen, including Duffy.

II.

We address first Wheeling-Pittsburgh's argument that the district court misapplied legal standards in finding intentional discrimination. In order to recover under the ADEA, a plaintiff must prove by a preponderance of the evidence that age was "a determinative factor" in the employer's decision. See Smithers v. Bailar, 629 F.2d 892 (3d Cir.1980); see also Lewis v. University of Pittsburgh, 725 F.2d 910 (3d Cir.1983) (applying same standard in Title VII context). Duffy need not prove that age was the employer's sole or exclusive consideration but must prove that "age made a difference" in that decision. Smithers, 629 F.2d at 898.

The district court first determined, under the guidelines of McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) and Smithers, 629 F.2d at 895, that Duffy had established a prima facie showing of age discrimination. A plaintiff alleging a discriminatory layoff need show only that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably. Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). ³ Wheeling-Pittsburgh does not challenge the finding that Duffy established a prima facie case.

After a plaintiff has established a prima facie case of age discrimination, the burden shifts to the defendant to dispel the adverse inference by articulating "some legitimate, nondiscriminatory reason for the employee's rejection." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978); Massarsky, 706 F.2d at 118; Smithers, 629 F.2d at 895. Once the defendant satisfies the requirement of articulating a non-discriminatory reason for the employee's discharge, the ultimate burden remains with the plaintiff to prove to the trier of fact that the defendant intentionally discriminated against the plaintiff. Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-94; Lewis, 725 F.2d 910.

Wheeling-Pittsburgh argues that the district court made an error of law by focusing on "pretext" and relieving Duffy from having to prove an actual discriminatory intent. However, under the McDonnell Douglas test, a showing that a proffered justification is pretextual is itself equivalent to a finding that the employer intentionally discriminated. As stated by the Court in Burdine, after the plaintiff has established a prima facie case and the defendant has articulated a nondiscriminatory reason for the challenged action, the plaintiff's burden of showing pretext "merges with the ultimate burden of persuading the Court that [the employee] has been the victim of discrimination. [The employee] may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." 450 U.S. at 256, 101 S.Ct. at 1095. See also United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983); Massarsky, 706 F.2d at 118-19; Behlar v. Smith, 719 F.2d 950, 952 (8th Cir.1983).

Here, the district court properly applied the standards of Burdine. Contrary to the suggestion found in the dissent that a difference exists between the proofs required in an ADEA case and those required in a Title VII case (see Dissent, typescript at p. 9), the district court properly followed our established precedent. See Smithers, 629 F.2d at 892. It noted that "the fact that an employer can demonstrate that an employment decision was based upon sound business reasons will not preclude liability under the ADEA if the employee can prove, nevertheless, that (1) a discriminatory reason more likely motivated the employer or (2) the employer's proffered explanation is unworthy of credence." Thus, the district court applied proper legal precepts.

III.

We next consider whether the district court's finding of pretext or intentional discrimination was clearly erroneous. In the instant case, after Duffy established his prima facie case, Wheeling-Pittsburgh proffered a legitimate nondiscriminatory reason for Duffy's discharge that (1) economic conditions in the steel industry forced a cutback in personnel, and (2) Duffy was selected for termination based on relative job performance. The district court noted in its opinion that if Wheeling-Pittsburgh's explanation were true, it would adequately rebut any inference of discrimination.

The district court, however, concluded that "defendant's articulated nondiscriminatory reason for the discharge of plaintiff's performance [sic] was pretextual. Accordingly, the Court finds that plaintiff was discharged on the basis of his age in violation of the ADEA." Duffy v. Wheeling-Pittsburgh Steel Corp., Civ. No. 81-601, mem. op. at 12, (E.D.Pa. Sept. 30, 1983); App. at 359. We must defer to this finding unless it is "clearly erroneous." Fed.R.Civ.P. 52(a); Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982). We are satisfied that more than adequate evidence exists to support the district court's finding.

The district court found that "[o]f the five salesmen and one assistant sales manager in [Duffy's] district, [Wheeling-Pittsburgh] terminated the four oldest and most highly paid salesmen." Duffy, mem. op. at 7; App. at 365. They were paid "substantially higher salaries than the younger men retained, and the cost of their insurance, pensions and social security payments was greater." Id.

The district court also found that Duffy's performance "was superior to that of the younger men retained." Duffy, mem. op. at 6; App. at 364. This finding was based on the following evidence relating to the tonnage sold by each salesman employed by Wheeling-Pittsburgh at the time of Duffy's discharge. ⁴ The district court also took note of a statement made in May of 1980 by Cornel Bolog, commercial vice-president of Wheeling-Pittsburgh, to William Shutt, age 59, who was discharged along with Duffy. According to Shutt's deposition, Bolog gave Shutt the following reasons for his discharge: "They were going to have to cut back in the Sales Department and were anxious to get younger and more aggressive people in the field." App. at 366.

Moreover, the district court also found that Wheeling-Pittsburgh's explanations and testimony were internally inconsistent and not credible. It is not our function to review the inconsistencies in the evidence and determine what testimony is to be credited. That function is one which is to be discharged, as the district court did here, by the trial judge. To argue, therefore, as does the dissent, that credit should have been given to witnesses from Wheeling-Pittsburgh when the district court explicitly declined to credit that testimony not only blurs the distinction that has been established between the district court and the appellate court provinces, but also would require in every instance our de novo review of the trial court's credibility determinations, even assuming that such review were feasible.

Bolog stated that the key factor in deciding which salesmen to terminate was performance and that each person being terminated was to be informed as to the cause of his termination. Wheeling-Pittsburgh originally claimed that Bolog, Frank McElhinney, general manager, and Clyde Shelton, Duffy's immediate supervisor, made the decisions on whom to fire. McElhinney's testimony, however, revealed that Shelton was not consulted about Duffy's performance, even though Shelton was the most qualified to assess Duffy's performance. The district court found that McElhinney did not request any input from Shelton, and ...