Fowle v. C & C Cola, a Div. of ITT-Continental Baking Co.

• Decision Date: 16 February 1989
• Docket Number: No. 88-5206,ITT-C,ITT-CONTINENTAL,88-5206
• Citation: 868 F.2d 59
• Parties: 49 Fair Empl.Prac.Cas. 253, 49 Empl. Prac. Dec. P 38,717, 57 USLW 2535 Wilson F. FOWLE, Appellant, v. C & C COLA, A DIVISION OFBAKING COMPANY and ITT Corporation,ontinental Baking Company, a division of ITT/International Telephone and Telegraph, ITT/International Telephone & Telegraph Corporation, and Ralph Pausig.
• Court: U.S. Court of Appeals — Third Circuit

Page 59

868 F.2d 59

49 Fair Empl.Prac.Cas. 253,

49 Empl. Prac. Dec. P 38,717, 57 USLW 2535

Wilson F. FOWLE, Appellant, v. C & C COLA, A DIVISION OF ITT-CONTINENTAL BAKING COMPANY and ITT Corporation, ITT-Continental Baking Company, a division of ITT/International Telephone and Telegraph ITT/International Telephone & Telegraph Corporation, and Ralph Pausig.

No. 88-5206.

United States Court of Appeals Third Circuit.

Argued July 28, 1988.

Decided Feb. 16, 1989.

Paul Schachter (argued), Reinhardt & Schachter, Newark, N.J., for appellant.

Francis X. Dee, Patrick G. Brady, Kevin C. Donovan, Carpenter, Bennett & Morrissey, Newark, N.J., for appellees.

Before GIBBONS, Chief Judge, SEITZ, and HUTCHINSON, Circuit Judges.

OPINION OF THE COURT

SEITZ, Circuit Judge.

I.

Plaintiff Wilson Fowle appeals from an order of the district court granting summary judgment in favor of defendants C & C Cola, ITT-Continental Baking, ITT/International Telephone and Telegraph Corporation ¹ and Ralph Pausig. The district court had jurisdiction of Fowle's Age Discrimination in Employment Act (ADEA) claim, 29 U.S.C. Sec. 621, et seq., under 28 U.S.C. Secs. 1331 and 1343, and of Fowle's state law claims under 28 U.S.C. Sec. 1332. We have jurisdiction under 28 U.S.C. Sec. 1291.

II.

This case arises out of defendants' failure to hire plaintiff Wilson Fowle for three positions after his job at ITT was eliminated by ITT's sale of C & C Cola to Shasta Beverages in March, 1982. In the district court, Fowle alleged violations of the ADEA, the New Jersey Law Against Discrimination, N.J. Stat.Ann. 10:5-1, et seq., the New Jersey Constitution, Art. I, Par. 1, New Jersey public policy, oral and written promises by defendants, and contractual obligations created by ITT policies. The district court granted summary judgment for the defendants as to all of Fowle's claims. Fowle brought this appeal which implicates particularly abstract considerations because of the executive nature of the positions involved. ²

In an appeal from a district court order granting summary judgment our review is plenary. We apply the same test used by the district court: whether there is no genuine issue of material fact, and whether the defendant-appellee is entitled to judgment as a matter of law. An issue is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

A. THE ADEA CLAIMS

We will turn first to Fowle's ADEA claims. The three-stage shifting burden originally developed in the context of the title VII employment discrimination action, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1980), has been adapted for use in the analysis of disparate treatment claims under the ADEA. See, e.g., Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). The plaintiff first has the burden of making out a prima facie case of employment discrimination. The specific items of proof required in making out a prima facie case vary with the factual setting. See, e.g., McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. To make out a prima facie case of age discrimination in a case of failure to hire, plaintiff 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, see Maxfield, 766 F.2d at 793, or continued to seek applicants from among those having plaintiff's qualifications, see McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.

If a prima facie case is established, the burden then shifts to the defendants "to articulate some legitimate, nondiscriminatory reason" for the failure to hire. Id. If such a reason is offered, the plaintiff then has the burden of showing that the proffered reason was in fact a pretext. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. The plaintiff "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." Id. Thus, "a plaintiff can prevail by means of indirect proof that the employer's reasons are pretextual without presenting evidence specifically relating to age." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, --- U.S. ----, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).

Because of this structure of proof, an ADEA defendant can prevail on a summary judgment motion in two different ways. "The defendant may show that the plaintiff can raise no genuine issue of fact as to one or more elements of the plaintiff's prima facie case. The defendant may also introduce evidence of nondiscriminatory animus and show that the plaintiff can raise no genuine issue of fact as to whether the proffered reason is a pretext for discrimination." Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173 (3d Cir.1988) (citation omitted).

1. The Vice President--Director of Marketing Position

Fowle first alleges that the defendants failed to hire him for the position of Vice-President Director of Marketing at Continental Baking. Some background is in order. Because this case comes to us on the grant of defendants' motion for summary judgment, we will draw every justifiable inference favorable to Fowle in our narration of the facts. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Wilson Fowle was first hired by ITT Corporation on December 26, 1972--when he was 46 years old--as Staff Assistant-Office of the President at ITT World Headquarters. The job description for the position for which Fowle was hired set forth the criteria for the job: "Ultimately ... the decision must be based on the potential of any candidate to take on the Presidency of an Operating company minimally, and preferably, Group Executive responsibilities for a group of companies."

The job description contemplated possible transfer after a relatively short period of time to a position of management responsibility in a group, sub-group or operating company of ITT. Fowle, however, was not transferred. Fowle was assigned the duties of Product Line Manager (PLM), Food Products and Services.

In 1978 and 1979, Fowle was given written Executive Performance Review evaluations by his immediate supervisor. These evaluations were both excellent. The 1978 evaluation found that Fowle was "qualified as a candidate for broader responsibility on the basis of experience and knowledge." The evaluation stated that Fowle's "leadership qualities are difficult ... to assess due to staff function of work and relatively short time of working relationship."

In 1979, ITT entered a period of divestiture. In January, 1980, Fowle was transferred from his PLM position at ITT World Headquarters. However, he remained with ITT, subsequently holding several positions at Continental Baking Company (CBC) and Morton Frozen Foods, two food group companies within ITT. In January, 1981, Fowle was made Vice President of Marketing at C & C Cola, then administered under Continental Baking and a part of the ITT System.

Late in 1981 rumors began to circulate that ITT would sell C & C Cola. Fowle wrote to Frank Wuerful, then C & C's president, expressing his desire to continue working within ITT in the event C & C were sold. He expressed concern especially that, having worked at ITT nine years, he not lose his pension which would vest after ten years of employment. Wuerful responded with a note that said "[i]f there should be any change in C & C's status I will see that your tenure with ITT is protected."

Fowle also wrote to defendant Ralph Pausig, then ITT's Director of Personnel, reiterating his desire to find an alternative assignment within ITT in the event of a change of status at C & C Cola. Pausig responded that "we will do all we can to place you in CBC. Other ITT opportunities, right now, look very sparse.... We certainly can't guarantee anything, but we recognize your contribution and will try hard to find a fit for you."

Early in March, 1982, Wuerful informed Fowle that C & C Cola had been sold by ITT to Shasta Beverages. Fowle was at this time 55. On March 18, 1982, Fowle had a telephone conversation with John Porter, then CBC's Vice President--Director of Personnel, about job possibilities with Continental Baking. Fowle secretly tape recorded this conversation.

Porter told Fowle about one open position at Continental: Vice President--Director of Marketing. This position had originally been created in 1981 by the former President of CBC, G. Michael Hostage, then President of CBC. A management consulting firm had been hired in 1981 to develop position specifications and to undertake an executive search for the position. Porter told Fowle that the position had two requirements. The person selected had to be a generalist with a marketing orientation, and he had to have the potential to serve as a "backup" to the president of Continental. As envisioned at the time Lauren Batty--CBC's new president--took office at the beginning of 1982, this second requirement meant that the Vice President--Director of Marketing would have to have the potential to replace the President of CBC within two to four years.

Porter explained that Batty had been unsure about whether he wanted to fill the position at all, had considered shifting the focus of the position toward sales and away from marketing, and had not yet hired anyone although there was an open requisition for the position.

Porter told Fowle that Batty had considered Fowle for this job. "In...