Sutera v. Schering Corp.

Decision Date28 December 1995
Docket NumberNo. 377,D,377
Citation73 F.3d 13
Parties69 Fair Empl.Prac.Cas. (BNA) 1020 Anthony SUTERA, Plaintiff-Appellant, v. SCHERING CORPORATION, Defendant-Appellee. ocket 95-7336.
CourtU.S. Court of Appeals — Second Circuit

Kevin D. Moloney, White Plains, New York (Benjamin R. Anker, White Plains, New York, on the brief), for plaintiff-appellant.

Thomas D. Ruane, New York City (Leslie A. Lajewski, Robinson, St. John & Wayne, New York City, on the brief), for defendant-appellee.

Before: NEWMAN, Chief Judge, LUMBARD and CABRANES, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

We consider whether, in the circumstances presented, it was appropriate to enter summary judgment for defendant on plaintiff's claims of age discrimination. Plaintiff Anthony J. Sutera brought this action against his former employer, defendant Schering Corporation ("Schering"), alleging termination of his employment in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1988) ("ADEA"), and the New York Human Rights Law, N.Y. EXEC. LAW Sec. 290 et seq. 1 The United States District Court for the Southern District of New York (Charles L. Brieant, Judge) granted summary judgment in favor of defendant and dismissed plaintiff's claims on the ground that Schering had asserted an adequate basis for Sutera's discharge.

On appeal, Sutera contends that summary judgment was inappropriate because (1) he established a prima facie case of unlawful age discrimination, and (2) there exist genuine issues of material fact as to whether defendant's articulated reason for discharging plaintiff was a pretext for discrimination. We agree and therefore vacate the judgment and remand the cause for further proceedings.


The following facts are not disputed by the parties. Sutera was hired by Schering in 1961 and worked as a sales representative for Schering for more than thirty years. His duties included marketing Schering's pharmaceutical products by visiting physicians and providing them with information and product samples.

Since the passage of the Prescription Drug Marketing Act of 1987, 21 U.S.C. Sec. 301 et seq., the provision of samples to physicians has been strictly regulated by the federal government. The statute requires pharmaceutical companies to keep precise records of the distribution of pharmaceutical products. See 21 U.S.C. Sec. 353(d)(2)(B). Under Schering's compliance policy, orders from physicians for Schering samples are submitted to Schering on so-called Focus Cards. Schering requires that a physician sign the Focus Cards and that the sales representative mail to Schering on a daily basis the signed Cards he has collected. When Sutera visited a physician's office he would either witness the physician signing the Focus Cards or give the Cards to a member of the physician's staff to bring it to the physician for signature.

The events leading to Sutera's termination began on June 16, 1992, when Sutera was making calls to customers with his immediate supervisor, Annabelle Suarez. After Sutera and Suarez made several calls, Suarez discovered signed, unsubmitted Focus Cards--dated weeks or months before--in the back of Sutera's car. Suarez immediately questioned Sutera about the Cards. Sutera explained that on occasion a physician would sign in the wrong signature box or Sutera would misplace a signed original. Sutera would request that the physician sign an additional Card, submit this second Card to Schering, and retain the original. Following her discovery of the unsubmitted Focus Cards, Suarez compared the physician signatures on the unsubmitted cards to the signatures on Sutera's submitted cards and found discrepancies. Suarez obtained written statements from three physicians who asserted that the signatures appearing on the Focus Cards found in Sutera's car were not their own.

Sutera was fired on July 31, 1992. He was informed that he was being discharged because of the irregularities in physician signatures on Focus Cards. After he was fired, Sutera obtained a statement from one of the three doctors from whom Suarez had previously obtained a written statement to the effect that a disputed signature might actually be genuine.

At the time of his discharge, Sutera was sixty-six years old. He was making a base salary of $47,300, plus commissions and a share in a profit sharing plan. In addition, he was entitled to six weeks of yearly vacation, ninety days per year in sick time, and other benefits. Newly hired sales representatives begin their employment at approximately half of Sutera's base salary, do not make commissions, do not participate in profit sharing, and are entitled only to two weeks of yearly vacation and minimal sick leave. Sutera was replaced by a younger individual at a lower base salary.

Sutera filed this action on August 23, 1994. At a status conference on November 11, 1994, the parties agreed to a discovery schedule, under which interrogatories and requests for production of documents were to be served by December 31, 1994, and responses were to be served by January 30, 1995. Discovery was to be completed by May 30, 1995.

On December 27, 1994, before any discovery had taken place, Schering moved for summary judgment. Although the district court did not enter an order barring discovery while the motion was under consideration, the parties effectively abandoned their discovery schedule during the pendency of the motion for summary judgment. On March 7, 1995, the district court entered a Memorandum and Order granting Schering's motion and dismissing Sutera's complaint in its entirety. This appeal followed.

A. Standard of Review

We review the district court's grant of summary judgment de novo. Gallien v. Connecticut Gen. Life Ins. Co., 49 F.3d 878, 881 (2d Cir.1995). Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509, 91 L.Ed.2d 202 (1986). In deciding a motion for summary judgment, "the court cannot try issues of fact but can only determine whether there are issues of fact to be tried." Katz v. Goodyear Tire and Rubber Co., 737 F.2d 238, 244 (2d Cir.1984) (internal quotation marks omitted). The district court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party and grant summary judgment only if no reasonable trier of fact could find in favor of the nonmoving party. Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir.1991).

B. Employment Discrimination and Burden-Shifting Analysis

The ADEA makes it "unlawful for an employer ... to discharge any individual ... because of such individual's age." 29 U.S.C. Sec. 623(a)(1); see Johnson v. New York, 49 F.3d 75, 78 (2d Cir.1995). Where a plaintiff alleges discharge from employment in violation of the ADEA, the three-step burden-shifting test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), a decision under Title VII of the Civil Rights Act of 1964, supplies the appropriate analytical framework. See Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.1994). 2 First, the plaintiff must present a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. If the plaintiff does so, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Id.; Gallo, 22 F.3d at 1224. The burden at this phase is one of production rather than persuasion. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 257, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). If the defendant carries this burden of production, the plaintiff must show that the defendant's articulated reason for its decision is in fact a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, ----, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993).

We find that plaintiff has met his burden of establishing a prima facie case of age discrimination and that defendant has articulated a nondiscriminatory reason for its decision. The question presented is whether the district court properly entered summary judgment in these circumstances. Once the plaintiff presented a prima facie case, the district court could only have entered summary judgment in defendant's favor if it determined that no rational trier of fact could find the articulated basis for the plaintiff's discharge to be a pretext for discrimination. Such a conclusion was not proper on the record before the district court.

1. Step 1: Plaintiff's Burden to Establish the Prima Facie Case

To make a prima facie showing of wrongful discharge under the ADEA, a plaintiff must demonstrate: "(1) that he was within the protected age group, (2) that he was qualified for the position, (3) that he was discharged, and (4) that the discharge occurred under circumstances giving rise to an inference of age discrimination." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 204 (2d Cir.1995) (internal quotation marks omitted). "[T]he showing the plaintiff must make as to the elements of the prima facie case in order to defeat a motion for summary judgment is de minimis." Id. (internal quotation marks omitted).

In the present case, Sutera opposed Schering's motion for summary judgment by submitting to the district court sworn statements sufficient to make the requisite prima facie showing. The ADEA protects persons forty to seventy years of age. 29 U.S.C. Sec. 631(a). At the time Sutera was fired, he was sixty-six years old. Sutera was qualified for his position. He had thirty-one years of experience as a sales...

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