Simpson v. Kay Jewelers, Div. of Sterling, Inc., 97-3224

• Decision Date: 22 January 1998
• Docket Number: No. 97-3224,97-3224
• Citation: 142 F.3d 639
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1083, 73 Empl. Prac. Dec. P 45,315 Sandra L. SIMPSON Appellant, v. KAY JEWELERS, DIVISION OF STERLING, INC. . Submitted Under Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 639

142 F.3d 639

76 Fair Empl.Prac.Cas. (BNA) 1083,

73 Empl. Prac. Dec. P 45,315

Sandra L. SIMPSON Appellant, v. KAY JEWELERS, DIVISION OF STERLING, INC.

No. 97-3224.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a)

Jan. 22, 1998.

Decided April 24, 1998.

Kenneth A. Wise, Harrisburg, PA, for Appellant Sandra L. Simpson.

Martin J. Saunders, Jackson, Lewis, Schnitzler & Krupman, Pittsburgh, PA, for Appellee Kay Jewelers.

Before: BECKER, ^* STAPLETON, Circuit Judges, and POLLAK, District Judge. ^**

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

This is an appeal by Sandra Simpson from the grant of summary judgment for defendant Kay Jewelers in a suit alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C.A. §§ 621-34 (1985 & Supp.1997), and the Pennsylvania Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, §§ 951-63 (1991 & Supp.1997). ¹ Simpson contends that evidence of the more favorable treatment of one allegedly similarly situated younger employee is sufficient to permit the inference that the employer's proffered reason for her demotion is a pretext for discrimination. We reject this contention and hold that a plaintiff does not create an issue of fact merely by selectively choosing a single comparator who was allegedly treated more favorably, while ignoring a significant group of comparators who were treated equally to her.

Simpson also contends that pretext can be inferred from alleged inconsistencies between Kay Jewelers' proffered reasons and its actions. We also reject this contention and, following Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509 (3d Cir.1993) (pretext turns on the qualifications and criteria identified by the employer, not the categories the plaintiff considers important), conclude that Simpson has not presented evidence sufficient to infer that Kay Jewelers' proffered explanations were a pretext for discrimination. We therefore affirm.

I.

Plaintiff, Sandra Simpson, was an employee of Kay Jewelers in the DuBois Mall in Clearfield County, Pennsylvania. Kay Jewelers was a chain of retail jewelry stores, which was purchased by Sterling, Inc. in 1990. Simpson was originally hired as a bookkeeper in May, 1973, and promoted to assistant manager in 1976. She was promoted to store manager in 1979, a position she held until her demotion in 1994.

From 1991 to 1994, Simpson's forte was her individual jewelry sales. The overall store sales, however, were considered deficient. Kay Jewelers set sales quotas for each of its stores, taking into account such factors as economic conditions, mall conditions, and competition. From September 1991 to March 1994, Simpson's store satisfied its monthly store sales quota eight out of thirty-one months. During the fourteen months immediately prior to her demotion, it met quota three times. The district manager repeatedly indicated on Simpson's evaluations that she needed to improve her quota performance and increase store sales. ² The 1991, 1992, and 1994 evaluations identified increased sales as "major developmental needs." The 1993 evaluation stated that Simpson needed to "work to get 6/6 [quotas]" and "improve [store sales] to min of 103% [of planned sales]." The district manager repeatedly identified increased staff training, role playing, and staff motivation as necessary to improve overall sales. The "action plan for development" in each evaluation from 1991 through 1994 listed the need for daily staff training and role playing. At least twice, the district manager told Simpson she would be demoted if she did not meet the store sales quotas.

In March 1993, after Simpson failed to meet sales quotas in any of the preceding six months, the district manager created a Get It Done list ("GID"), which identified problem areas and defined "action plans" to correct the problems. In the GID, the district manager stated that Simpson's performance in areas other than store sales were basically up to standard, but that sales, the most important area, was lacking. The district manager concluded that "lack of training, direction, staffing, store moral[e], and aggressive sales efforts" were the "key reason[s] for the substandard sales production." Furthermore, the district manager recommended that if "compliance is not obtain[ed] and results achieved that [Kay Jewelers] should consider a management change (demotion, not termination)." Id.

As part of the GID, Simpson was instructed to maintain a sixty-day log of daily training sessions to be held with each employee. Simpson testified at her deposition that daily training was held, but not with each employee each day. She also testified that some, but "not a lot" of role playing was conducted. One of Simpson's employees testified that she never received training through role playing. Another employee testified that role playing was not conducted on a daily basis. The store met its sales quotas for both months during the sixty-day period. However, from the end of the GID period through March 1994, the store sales quotas were met only once out of the ten months. In March 1994, the district manager recommended that Simpson be demoted because of her unacceptable store sales and continuous failure to train and motivate staff to meet sales quotas. The recommendation was approved by two Vice Presidents, and Simpson was demoted to sales associate at the age of 57. Simpson was replaced by Becky Bush, a 42 year old woman.

Simpson filed a claim with the Equal Employment Opportunity Commission ("EEOC") in May 1994, alleging age discrimination. The EEOC determined there was no reasonable cause to believe that there was unlawful discrimination. Simpson then filed suit in the district court for the Western District of Pennsylvania alleging discrimination in violation of the ADEA and PHRA. After discovery, Kay Jewelers moved for summary judgment. The magistrate judge concluded that Simpson had failed to make out a case of pretext, and recommended that summary judgment be entered for Kay Jewelers. The district judge adopted the magistrate judge's report and granted Kay Jewelers' motion for summary judgment. This timely appeal followed.

The district court exercised jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291 and our review of the district court's grant of summary judgment is plenary. Ersek v. Township of Springfield, 102 F.3d 79, 83 (3d Cir.1996). ³

II.

Simpson advances a pretext claim which is perforce analyzed under the three steps of the McDonnell Douglas line of cases, 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 (1981); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), that we have applied to ADEA cases, see e.g., Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.1995). ⁴ We set forth the familiar McDonnell Douglas framework in the margin. ⁵ We will not discuss steps one and two of the framework because although the parties contest the district court findings that Simpson established a prima facie case of discrimination and that Kay Jewelers proffered a legitimate nondiscriminatory reason for the demotion, we assume arguendo that these steps have been satisfied and proceed to step three of the analysis. ⁶

To survive summary judgment when the employer has articulated a legitimate nondiscriminatory reason for its action, the plaintiff must

point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). To discredit the employer's articulated reason, the plaintiff need not produce evidence that necessarily leads to the conclusion that the employer acted for discriminatory reasons, Sempier, 45 F.3d at 732, nor produce additional evidence beyond her prima facie case, Fuentes, 32 F.3d at 764. The plaintiff must, however, point to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons [such] that a reasonable factfinder could rationally find them 'unworthy of credence' " and hence infer that the proffered nondiscriminatory reason "did not actually motivate" the employer's action. Id. at 764-65 (quoting Ezold, 983 F.2d at 531).

To show that discrimination was more likely than not a cause for the employer's action, the plaintiff must point to evidence with sufficient probative force that a factfinder could conclude by a preponderance of the evidence that age was a motivating or determinative factor in the employment decision. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1111 (3d Cir.1997). For example, the plaintiff may show that the employer has previously discriminated against her, that the employer has discriminated against other persons within the plaintiff's protected class or within another protected class, or that the employer has treated more favorably similarly situated persons not within the protected class. Fuentes, 32 F.3d at 765.

Kay Jewelers asserts that Simpson was demoted because she repeatedly failed to attain the store sales quotas and failed to adequately train and motivate her staff to meet quotas. Simpson does not dispute her failure to attain the store sales quotas or to adequately train her staff, but does make numerous arguments in an attempt to both discredit these reasons and show that discrimination was more likely than not the motivating cause of her demotion. Simpson primarily relies on the fact that Dolly Field, a younger manager, was not demoted or fired. ⁷ Simpson argues...