Manzer v. Diamond Shamrock Chemicals Co.

• Decision Date: 22 September 1994
• Docket Number: No. 93-5513,93-5513
• Parties: 65 Fair Empl.Prac.Cas. (BNA) 585, 65 Empl. Prac. Dec. P 43,215, 63 USLW 2131 Edwin C. MANZER, Plaintiff-Appellant, v. DIAMOND SHAMROCK CHEMICALS COMPANY, formerly Diamond Shamrock Corporation; Occidental Chemical Corporation; Arch Mineral; Maxus Energy Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1078

29 F.3d 1078

65 Fair Empl.Prac.Cas. (BNA) 585,

65 Empl. Prac. Dec. P 43,215, 63 USLW 2131

Edwin C. MANZER, Plaintiff-Appellant, v. DIAMOND SHAMROCK CHEMICALS COMPANY, formerly Diamond

Shamrock Corporation; Occidental Chemical

Corporation; Arch Mineral; Maxus

Energy Corporation,

Defendants-Appellees.

No. 93-5513.

United States Court of Appeals, Sixth Circuit.

Argued May 9, 1994.

Decided July 20, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

22, 1994.

William C. Jacobs (argued and briefed), Catherine M. Stevens (briefed), Lexington, KY, for Edwin C. Manzer.

Richard C. Ward, Joseph H. Terry, Debra H. Dawahare (argued and briefed), Wyatt, Tarrant & Combs, Lexington, KY, for Diamond Shamrock Chemicals Co.

Debra H. Dawahare, Wyatt, Tarrant & Combs, Lexington, KY, for Occidental Chemical Corp., Arch Mineral.

Debra H. Dawahare, Wyatt, Tarrant & Combs, Lexington, KY, Edward H. Stopher, James P. Grohmann, Boehl, Stopher & Graves, Louisville, KY, for Maxus Energy Corp.

Before: BOGGS, SUHRHEINRICH, and DAUGHTREY, Circuit Judges.

SUHRHEINRICH, Circuit Judge.

Manzer sued his former employer, Diamond Shamrock, in Kentucky state court on state-law age discrimination grounds. Diamond Shamrock removed the case to federal court on diversity grounds and, upon removal, Manzer amended his complaint to allege a violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 (ADEA). The case was tried to a jury and, at the close of all the evidence, the district court granted Diamond Shamrock's motion for a directed verdict. ¹ Because Manzer failed to produce sufficient evidence from which a jury could conclude that Diamond Shamrock's nondiscriminatory explanations were pretextual, we AFFIRM.

I.

We review a directed verdict de novo. King v. Love, 766 F.2d 962, 969 (6th Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 351, 88 L.Ed.2d 320 (1985). Thus, we "must view the evidence in a light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences." Danielson v. City of Lorain, 938 F.2d 681, 683 (6th Cir.1991). Where no reasonable juror could find for the nonmoving party, a directed verdict is appropriate. Fite v. First Tennessee Prod. Credit Assoc., 861 F.2d 884, 889 (6th Cir.1988).

A. Direct Evidence

An ADEA plaintiff's case is submissible if it presents direct evidence that the defendant fired the plaintiff because of his age. In such cases, provided that the jury believes plaintiff's evidence, the burden of persuasion shifts to the employer to prove that it would have terminated the plaintiff even had it not been motivated by age discrimination. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L.Ed.2d 268 (1989) (plurality opinion). Manzer contends that he presented direct evidence of age discrimination and, therefore, the burden of persuasion should have shifted to Diamond Shamrock.

On cross-examination, Manzer elicited the following testimony from John McConnell, Manzer's supervisor at the time Manzer was fired:

Q. Had Edwin Manzer been 55 [years old], you wouldn't have had to terminate him, would you?

A. If Ed Manzer had been 55, he would have been offered the same program, I presume, of voluntarily [sic] retirement, early retirement. I presume he would have been included in that group, if he had been 55.

This is not direct evidence of age discrimination. It is merely a statement of fact that, had Manzer been older, he would have qualified for the same benefits as others. The relevance of this statement to Manzer's case, if any, is provided by inference. Manzer would have the jury infer from the "timing" of his termination that not only was age the motivating factor in terminating him but also that his imminent qualification for additional benefits forced the company to terminate him before he got any older. Because this evidence is, at most, circumstantial evidence of discrimination, Price Waterhouse is not applicable.

B. Circumstantial Evidence

Even without direct evidence of age discrimination, an ADEA plaintiff may still make a submissible case by presenting evidence from which the jury may infer an invidious intent behind plaintiff's termination. The process by which the sufficiency of such a case is tested was first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

1. Prima facie case

In this paradigm, the plaintiff must first establish a prima facie case of discrimination by introducing evidence sufficient to support a finding that (1) plaintiff was a member of the protected class, (2) plaintiff suffered an adverse employment action, (3) plaintiff was qualified for the position either lost or not gained, and (4) a person not of the protected class replaced, or was selected over, the plaintiff. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824 (Title VII claim); Gagne v. Northwestern Nat. Ins. Co., 881 F.2d 309, 313 (6th Cir.1989) (ADEA claim). ² This proof "in effect creates a presumption that the employer unlawfully discriminated against the employee." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094.

It is admitted, here, that Manzer adduced sufficient evidence from which a reasonable juror could conclude all of the elements of his prima facie case. Manzer was fifty-five years old when he was fired from his position as Comptroller of Diamond Shamrock's Coal Unit division. He was replaced by Ralph Turner, who was then thirty-three years old. Although Diamond Shamrock disputed that Manzer was "qualified" to continue serving as comptroller at the time he was fired, the district court denied Diamond Shamrock's motion for a directed verdict at the close of Manzer's case on the ground that Manzer's evidence had created a jury question on that issue. Additionally, in granting the subsequent directed motion under review here, the district court specifically found that Manzer's proof on this issue created a jury question.

2. Defendant's burden

Once the plaintiff has made a prima facie case, the burden shifts to the defendant to "rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. The Court emphasized that this burden was merely one of "production" because "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Id. at 253, 101 S.Ct. at 1093.

Here, Diamond Shamrock introduced evidence of two age-neutral bases for its decision to fire Manzer: (1) Manzer was argumentative and confrontational with superiors and co-workers, and (2) Manzer's work product was, on occasion, inaccurate. More to the point, counsel for Diamond Shamrock stated that Manzer was fired because he was "obnoxious and unreliable." These nondiscriminatory explanations for Diamond Shamrock's actions "destroy[ ] the legally mandatory inference of discrimination arising from the plaintiff's initial evidence." Id. at 255 n. 10, 101 S.Ct. at 1095 n. 10.

3. Plaintiff's rebuttal

In Burdine, the Supreme Court noted that the employer's explanations serve to "frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext." Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1095 (emphasis added). Pretext may be shown "either directly by persuading the [trier of fact] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256, 101 S.Ct. at 1095.

Prior to 1993, a majority of courts held that a plaintiff was required to make both the "direct" and the "indirect" showings discussed in Burdine. Thus, these courts required that "an ADEA plaintiff must do more than simply refute or cast doubt on the company's rationale for the adverse action. The plaintiff must also show a discriminatory animus based on age." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.1990) (emphasis added). These courts have been dubbed "pretext plus" circuits. See Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994) (compiling cases).

A minority of courts, dubbed "pretext only" circuits, reached a dramatically different conclusion. These held that, not only did the plaintiff's prima facie evidence still provide a basis for inferring discrimination, such an inference was required once plaintiff showed that the employer's explanation was not credible. Thus, a finding that the employer's explanation was not credible was held to be "equivalent to a finding that the employer intentionally discriminated." Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984).

The Sixth Circuit sided distinctly with the "pretext plus" circuits. In Gagne, this court stated:

To meet [her rebuttal] standard, [plaintiff] was required to produce direct, indirect or circumstantial evidence that her age was a factor in the decision to terminate her and that "but for" this factor she would not have been terminated.

Gagne, 881 F.2d at 314. This court went on to say that, " '[i]ndeed, the inference of discrimination created by the prima facie case is dispelled once the employer's reason is stated, until and unless the latter is shown to be a pretext.' " Id. (quoting Menard v. First Security Serv. Corp., 848 F.2d 281, 287 (1st Cir.1988) (emphasis added).

Recently, the Supreme Court rejected the "pretext only" position and held that a mere finding that the reasons given by the employer "were not the real reasons" for firing plaintiff did not compel judgment for the plaintiff. St....