White v. Westinghouse Elec. Co.

• Decision Date: 05 January 1989
• Docket Number: No. 88-3157,88-3157
• Citation: 862 F.2d 56
• Parties: 48 Fair Empl.Prac.Cas. 597, 48 Empl. Prac. Dec. P 38,505 James R. WHITE, Appellant, v. WESTINGHOUSE ELECTRIC COMPANY, Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 56

862 F.2d 56

48 Fair Empl.Prac.Cas. 597,

48 Empl. Prac. Dec. P 38,505

James R. WHITE, Appellant, v. WESTINGHOUSE ELECTRIC COMPANY, Appellee.

No. 88-3157.

United States Court of Appeals Third Circuit.

Argued July 27, 1988.

Decided Nov. 25, 1988.

Rehearing and Rehearing In Banc Denied Jan. 5, 1989.

James R. Duffy (argued), Duffy, Israel and Specter, Pittsburgh, Pa., for appellant.

John J. Myers, (argued), Eckert, Seamans, Cherin and Mellott, Pittsburgh, Pa., for appellee.

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

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

James White appeals a district court order granting his former employer, Westinghouse Electric Company (Westinghouse), summary judgment in his age discrimination action. ¹ Because evidence of the timing of White's discharge is sufficient to raise a genuine issue of material fact, we will reverse and remand this case for further proceedings.

I.

James White began working for Westinghouse in 1956 as a traffic clerk. While with Westinghouse, he occupied various positions. He became Manager of Transportation, Power Systems Projects, in 1973 and Manager of Transportation, Nuclear International Product, in 1980. In 1982, Westinghouse consolidated White's transportation manager position with another held by Jeffrey Neubert. Westinghouse assigned the resulting single position to the younger Neubert and gave White the newly created position of Senior Engineer, Transportation, Nuclear Project. In this capacity, he was assigned to resolve difficulties on several Westinghouse projects in Spain and reported to Neubert.

In September 1985, White was relieved of all international project assignments. According to a memo dated September 5, 1985, signed by both White and Neubert, "[White's] job performance was not satisfactory." Appendix (App.) at 33. Neubert gave White a special assignment which he made deliberately vague "to allow [White] the opportunity to show ... the level of initiative that he could demonstrate." Id.

On November 5, 1985, Neubert notified White that he would be discharged effective January 31, 1986, because of a reduction in force. Westinghouse had an over-all reduction goal of 5-10%. In order to meet it in the Nuclear Operations Division's Transportation Department, one of the department's ten members had to be discharged. ² According to Neubert and Merle Marsh, Neubert's superior, White was selected for discharge for two reasons. His performance rating had been the lowest in the department in each of the two previous years ³ and his position on special assignment was the most expendable because its elimination would not affect other ongoing projects. Of the nine employees retained in the Transportation Department, two were older (58 and 52) and two just one year younger than White, who was 51 years old. White was not replaced, nor were his duties assigned to anyone else.

At the effective date of his discharge, White had worked for Westinghouse for 29 3/4 years. If he had achieved 30 years of service, he would have received higher benefits whether he sought early retirement or full retirement at age 65. ⁴ In addition, he could have sought early retirement at age 58 rather than 60. White alleges that his numerous requests to extend his termination date to allow completion of 30 years of service were either ignored or denied. App. at 57.

II.

When reviewing a district court's decision on a motion for summary judgment, we apply the same standard as the district court. Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir.1988). Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. We view the evidence in the light most favorable to the non-moving party. Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). Doing so, we accept the non-movant's allegations as true and resolve any conflicts in his favor. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). However, summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2553, 91 L.Ed.2d265 (1986).

To apply this standard we must identify the essential elements which White, as plaintiff, must prove in his action under the Age Discrimination in Employment Act. ⁵ In an ADEA action, the plaintiff bears the ultimate burden of persuasion on the issue of discriminatory intent. To meet it, he must persuade the factfinder that age was a determinative factor in the defendant employer's decision to discharge him. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 592, 83 L.Ed.2d 702 (1984).

A plaintiff may prove his case by direct or circumstantial evidence. Maxfield v. Sinclair Int'l, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). "When direct evidence is available, problems of proof are no different than in other civil cases." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.) (in banc), cert. dismissed, --- U.S. ----, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Because direct evidence of discriminatory intent is often unavailable, however, the Supreme Court has fashioned "a method of proof that relies on presumptions and shifting burdens of production." Dillon v. Coles, 746 F.2d 998, 1003 (3d Cir.1984). First set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), this three-prong allocation of production burdens was recently described by the Supreme Court as follows:

First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, non-discriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) (citations omitted). While the burden of production shifts because of the particular problems associated with proving discriminatory intent by indirect evidence, the ultimate burden of persuasion "remains at all times with the plaintiff." Id. at 253, 101 S.Ct. at 1093; see also Chipollini, 814 F.2d at 897; Massarsky v. General Motors Corp., 706 F.2d 111, 118 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983).

The particulars of the showing required to establish a prima facie case depend on the factual circumstances. McDonnell Douglas, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. In a reduction in force when a complaining employee is not replaced, he, as "a plaintiff alleging a discriminatory layoff need show only that he is a member of the protected class and 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, 706 F.2d at 118 (footnote omitted); see also Berndt v. Kaiser Aluminum & Chem. Sales Inc., 789 F.2d 253, 256-57 (3d Cir.1986). A prima facie case creates a presumption of discrimination and the burden of production shifts to the defendant to explain the plaintiff's discharge in light of some legitimate, non-discriminatory reason. If the defendant produces evidence which raises a genuine issue of fact, the presumption disappears and the burden of production shifts back to the plaintiff to show that the defendant's stated reasons were mere pretext or not worthy of credence. At this point, the plaintiff's burden of production merges with his ultimate burden of persuasion. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Duffy, 738 F.2d at 1396.

A plaintiff is not required to meet his burden of production by direct evidence alone. Instead, with respect to both his burden to establish a prima facie case of discrimination and his burden to show that the defendant's explanation for the discharge was mere pretext, "a plaintiff can prevail by means of indirect proof." Chipollini, 814 F.2d at 898.

III.

A.

In the case before us, the district court found that White successfully made out a prima facie case for discriminatory discharge in a reduction in force case under Massarsky and Berndt, supra. We agree. White is in the class of persons protected by the ADEA. 29 U.S.C.A. Sec. 631(a) (West 1985 & Supp. (1988). Westinghouse does not assert that he was not qualified for his job. Westinghouse retained three members of the Transportation Department under 40 years of age, and therefore not in the protected class. This establishes a prima facie case and shifts to Westinghouse the burden of producing some legitimate, non-discriminatory reason for discharging White. ⁶

The district court found, and we agree, that Westinghouse met its burden of production. It offered two reasons for White's discharge: White's poor performance ratings and the expendability of his position on special assignment. This is enough to dispel the presumption of discrimination created by White's prima facie case. The burden of production shifts to White, requiring him to produce evidence from which a factfinder could infer that Westinghouse's explanation was mere pretext.

White points to two kinds of evidence to show that...