Kautz v. Met Pro Corp ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-17-2005
Kautz v. Met Pro Corp
Precedential or Non-Precedential: Precedential
Docket No. 04-2400
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2400
RICHARD J. KAUTZ
Appellant
v.
MET-PRO CORPORATION
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-8610)
District Judge: The Honorable Bruce W. Kauffman
Argued: May 10, 2005
Before: SLOVITER, FISHER and ALDISERT, Circuit Judges
(Filed: June 17, 2005)
Neil J. Hamburg (Argued)
Michael E. Sacks
Hamburg & Golden, P. C.
1601 Market St., Suite 3310
1
Philadelphia, PA 19103-1443
Attorneys for Appellant
Elizabeth A. Malloy (Argued)
George A. Voegele, Jr.
Klett Rooney Lieber & Scorling, P. C.
Two Logan Square, l2th Floor
Philadelphia, PA 19103-2756
Attorney for Appellee
OPINION OF THE COURT
ALDISERT, Circuit Judge.
This appeal by Richard J. Kautz from the District Court’s
order granting Met-Pro Corporation’s motion for summary
judgment in an age discrimination case requires us to decide
whether Kautz met his burden of proving that his employer’s
reasons for laying him off, in a reduction in force situation, were
pretextual.
Kautz presents no direct evidence of age discrimination. His
claim must, therefore, be analyzed under the burden shifting
framework provided by McDonnell Douglas Co. v. Green, 411
U.S. 792 (1973). In Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir.
2000), we explained this burden shifting framework in the context
of an Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621-634 (2000), claim:
2
A plaintiff must first produce evidence sufficient to
convince a reasonable factfinder as to all of the
elements of a prima facie case of discrimination. If
a plaintiff establishes a prima facie case, “‘[t]he
burden of production (but not the burden of
persuasion) shifts to the defendant, who must then
offer evidence that is sufficient, if believed, to
support a finding that the defendant had a legitimate,
nondiscriminatory reason for the [adverse
employment decision].’” An employer need not
prove, however, that the proffered reasons actually
motivated the [employment] decision. If a defendant
satisfies this burden, a plaintiff may then survive
summary judgment by submitting evidence 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.
Id. at 105 (citations omitted).
The District Court held that Kautz established a prima facie
case of discrimination under the ADEA and the Pennsylvania
Human Relations Act (“PHRA”), 43 P. S. §§ 951-963 (1991). The
Court determined that Met-Pro met its burden of going forward
with the evidence by establishing legitimate nondiscriminatory
reasons for his termination and that Kautz failed to establish that
Met-Pro’s reasons were pretexual. We will affirm.
I.
This dispute arose when Met-Pro laid Kautz off from his
position as a regional
3
sales manager (“RSM”) during a reduction in force which cut back
the number of RSMs from six to five. Kautz was laid off by
Met-Pro on February 20, 2002 after he had worked for the
company as an RSM since 1987. He had just turned 64.
Met-Pro manufactures and sells industrial pumps. In
October 2001, Met-Pro consolidated two of its divisions: Fybroc
and Dean Pump. Kautz had previously been one of four RSMs for
Dean Pump. With the consolidation, he became one of the six
RSMs in charge of Fybroc and Dean Pump and his account
responsibilities were revised, as were those of the other RSMs. He
was assigned to the Southwest Region. Attrition, rather than
layoffs, provided the vehicle for this consolidation.
In August 2001, Kautz was told that he would have to
transfer from Houston, Texas to Telford, Pennsylvania to work in
an office in Met-Pro’s Fybroc plant located there. At this time, the
five other RSMs all worked from factory locations and Kautz was
the only RSM who worked from his home. Met-Pro agreed to pay
Kautz’s relocation expenses. Kautz gave his assent to the transfer
but did not actually begin work from the new location until January
5, 2002. In February 2002, Met-Pro decided to reduce the number
of RSMs from six to five because further consolidation of the sales
force was necessary.
Met-Pro asserts that it decided to lay off Kautz after two
statistical comparisons of the RSMs and then, after narrowing the
field of possible candidates to two, a comparison of the candidates
personnel files. Kautz asserts that these reasons were pretextual.
We examine each of Met-Pro’s proffered reasons in detail below
and, therefore, will not recount them here.
When laid off, Kautz signed an agreement for a severance
package which allowed him to receive 13 weeks of severance pay.
The agreement provided that Met-Pro had no obligation to
re-employ him. Subsequent to Kautz being laid off, two other
RSMs (ages 30 and 43) were fired for cause and replaced by David
Hakim, age 33, and Christopher Cousart, age 47. Kautz was not
notified about these job openings or considered for either position.
When these openings became available he was, and still is,
working for Kirkwood Company, one of Met-Pro’s distributors.
His salary at this new position is significantly less than the salary
4
he earned at Met-Pro. Met-Pro continues to employ only five
RSMs.
II.
Subject matter jurisdiction over Kautz’s claims under the
ADEA arises pursuant to 28 U.S.C. § 1331. We exercise pendent
jurisdiction over Kautz’s claims arising under the PHRA pursuant
to 28 U.S.C. § 1367.1 We have jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291.
The standard of review applicable to the District Court’s
order granting summary judgment is plenary. Carrasca v. Pomeroy,
313 F.3d 828, 832-833 (3d Cir. 2002). We must apply the same test
employed by the District Court under Federal Rule of Civil
Procedure 56(c). Id. Accordingly, the District Court’s grant of
summary judgment was proper only if it appears “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.” Rule 56(c), Federal
Rules of Civil Procedure. Kautz, as the non-moving party, is
entitled to every favorable inference that can be drawn from the
record. Carrasca, 313 F.3d at 833.
III.
The District Court’s conclusion that Kautz has “made out a
prima facie case,” Kautz v. Met-Pro Corp., No. Civ. A.
02-CV-8610, 2004 WL 1102773, at *3 (E.D. Pa., May 17, 2004),
is not disputed by Met-Pro on appeal. The sole issue of contention
in this appeal, therefore, is whether Kautz has succeeded in
creating an issue of fact as to whether Met-Pro’s proffered non-
discriminatory reasons for eliminating Kautz’s position are a
pretext.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000), the Court held that proof of pretext does not have to
include evidence of discrimination, but rather “[i]n appropriate
1
The same legal standard applies to both the ADEA and the
PHRA and therefore it is proper to address them collectively. See
Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 509
n. 2 (2004).
5
circumstances, the trier of fact can reasonably infer from the falsity
of the explanation that the employer is dissembling to cover up a
discriminatory purpose.” 530 U.S. at 147.
Although Reeves makes clear that we may not require
affirmative evidence of discrimination in addition to proof of
pretext, it does not change our standard for proving pretext which
“places a difficult burden on the plaintiff.” Fuentes v. Perskie, 32
F.3d 759, 765 (3d Cir. 1994). In order to avoid summary judgment,
Fuentes requires a plaintiff to put forward “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of
credence.” Id. (internal quotation and citation omitted; emphasis in
the original).
Fuentes further explains that “to avoid summary judgment,
the plaintiff’s evidence rebutting the employer’s proffered
legitimate reasons must allow a factfinder reasonably to infer that
each of the employer’s proffered non-discriminatory reasons . . .
was either a post hoc fabrication or otherwise did not actually
motivate the employment action.” Id. at 764 (emphasis in the
original); see also Logue v. Int’l Rehab. Assocs., Inc., 837 F.2d
150, 155 (3d Cir. 1988) (holding that “the district court erred in
failing to consider all of [the employer’s] proffered evidence of
legitimate business reasons for [the plaintiff’s] termination”). In a
footnote, Fuentes allowed for the possibility that in a case where a
“defendant proffers a bagful of legitimate reasons,” casting
“substantial doubt on a fair number of them . . . may impede the
employer’s credibility seriously enough so that a factfinder may
rationally disbelieve the remaining proffered reasons.” Id. at 764
n. 7; see also Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d
1061, 1074-1075 (3d Cir. 1996) (en banc) (determining that where
a plaintiff: (1) completely undermined the employer’s main
complaint by proving that she was on jury duty on several days
when she was alleged to have given out free drinks; (2) called into
question the credibility of central employer witnesses; and (3)
presented affirmative evidence of retaliatory bias against her, there
had been a showing of pretext and there was, in that situation of
overwhelming evidence, no need to discuss whether pretext had
been shown for each allegation that the employee was tardy or in
6
violation of the grooming policy).
Fuentes instructs that pretext is not shown by evidence that
“the employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.” Id. at 765.
We have applied the principles explained in Fuentes to
require plaintiffs to present evidence contradicting the core facts
put forward by the employer as the legitimate reason for its
decision. See Stanziale, 200 F.3d at 106 (upholding summary
judgment where the plaintiff attempted to show pretext by
disputing the importance of the difference in educational
qualifications between himself and the person hired rather than
challenging the disparity itself or proving that the qualifications at
issue bore no actual relationship to the employment being sought);
Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1110 (3d Cir.
1997) (en banc) (determining that summary judgment was
appropriate notwithstanding the plaintiff’s contention that his
failure to meet or approach his goal of raising $1.5 billion in
financing was due to factors beyond his control, stating that “the
relevant question is not whether Keller could have done better;
instead, the relevant question is whether the evidence shows that it
was so clear that Keller could not have done better that ORIX
Credit Alliance could not have believed otherwise”).
An employer may not use evaluating criteria which lacks
any relationship at all to the performance of the employee being
evaluated because to do so would be inconsistent with and
contradictory to the employer’s stated purpose. See Fuentes, 32
F.3d at 765. Absent this type of violation of the Fuentes standard,
we will not second guess the method an employer uses to evaluate
its employees. See Simpson v. Kay Jewelers, Div. of Sterling, Inc.,
142 F.3d 639, 647 (3d Cir. 1998) (“Whether sales quotas or
evaluation scores are a more appropriate measure of a manager’s
performance is not for the court (or factfinder) to decide.”); Keller,
130 F.3d at 1109 (“The question is not whether the employer made
the best or even a sound business decision; it is whether the real
reason is discrimination.”); Healy v. New York Life Ins. Co., 860
F.2d 1209, 1216 (3d Cir. 1988) (“[O]ur inquiry must concern
7
pretext, and is not an independent assessment of how we might
evaluate and treat a loyal employee.”); Logue, 837 F.2d at 155 n.
5 (“[O]ur task is not to assess the overall fairness of [the] . . .
employer’s actions.”).
IV.
Determining pretext is a fact-based inquiry. See Simpson,
142 F.3d at 646. We must, therefore, look carefully at each of Met-
Pro’s proffered reasons as well as Kautz’s claim of pretext
regarding each of these reasons. See Ezold v. Wolf, Block, Schorr
and Solis-Cohen, 983 F.2d 509, 524-525 (3d Cir. 1992)
(concluding that a district court is obligated to focus on the
employer’s articulated reasons and citing Logue in support of this
conclusion).
Met-Pro offered two groups of reasons for its decision to
eliminate Kautz’s RSM position after it had decided to downsize
from six to five sales regions. First, Met-Pro analyzed two different
sales statistics and on the basis of that analysis determined that
Kautz and one other RSM were the lowest performers.
Second, upon reviewing the files of Kautz and the other
RSM selected for further review, Met-Pro determined that there
was a record of several specific instances of inadequate
performance by Kautz: (1) a June 18, 2001 memo from Edward
Murphy, Kautz’s immediate supervisor, related to poor
performance on a specific project; (2) a December 12, 2001 memo
from Murphy faulting Kautz for the loss of a $38,000 job due to his
“serious failure in judgment;” (3) a February 13, 2002 memo by
James Board, vice president and general manager of the Fybroc and
Dean Pump divisions, that memorialized a complaint by Gary
Cauble, president of one of Met-Pro’s distributors, that, after
receiving adequate advanced notice of a job, Kautz had failed to
inform the distributor of Met-Pro’s desire to bid on it until the
morning the bid was due, which was too late; (4) a January 16,
2002 memo from Board asserting that, at a year-end review
meeting, Kautz “offered that Dean Pump had lost a $40,000
quote;” and (5) January 18, 2002 memos from both Board and
Murphy criticizing Kautz for his inability to present any details
about what was going on in his territory during a weekly
production meeting. There was no record of comparable
8
derelictions from the other RSM whose record was considered.2
2
We also note that Kautz makes much of his transfer from
Texas to Pennsylvania and that he was not hired back subsequently
when two other RSMs were terminated, creating open positions.
Neither of these circumstances is relevant because they do not
rebut any of Met-Pro’s proffered reasons and therefore do not help
to show that those reasons are pretextual. Kautz wants us to believe
that Met-Pro decided to make him transfer to the other side of the
country for the sole reason of getting him to quit just a month and
a half before they moved to plan B and laid him off.
In considering plaintiff’s rebuttal after the employer has
come forward with nondiscriminatory reasons, we are obliged to
consider whether the employer’s proffered reasons are pretextual
and not alternative theories advanced by the plaintiff. See
Stanziale, 200 F.3d at 105 (explaining that in order to survive
summary judgment a plaintiff must either show that the employer’s
proffered reasons are a pretext or give affirmative evidence of
discrimination); Ezold, 983 F.2d at 524-525 (concluding that a
district court is obligated to focus on the employer’s articulated
reasons and citing Logue in support of this conclusion). Even if we
could consider the plaintiff’s own theories about how the decision
to terminate him occurred, we would conclude that they are not
supported by the record.
Kautz was notified that he was being transferred about six
months before he was laid off, he finally moved to Pennsylvania
and began working from the new location about one and a half
months prior. Before the transfer he was the only RSM working
from home, something that was inconsistent with company policy
for new RSMs.
Kautz also makes much of a supposed inconsistency in the
record about whether Bill Kacin, the 69-year-old CEO of Met-Pro,
was involved in the decision to transfer Kautz. There is no
inconsistency. In his deposition, Board notes that Kacin was
involved. In his declaration, DeHont notes that Kacin was
involved. In his deposition testimony, DeHont does not mention
Kacin’s involvement but he was not asked whether Kacin was
involved, the question he was responding to was whether he,
DeHont, was involved.
9
We first address the two sets of statistics offered by the
employer as evidence of substantial non-discriminatory reasons for
selecting Kautz as the RSM to be let go.
V.
A.
The first statistic relied on in Met-Pro’s decision presents
the greatest problem. The statistic measured number of sales by
region and the southwest region, Kautz’s territory, was the lowest.
Kautz does not dispute that this statistic was used or the accuracy
of the numbers. He does argue that the statistic was not actually
relevant to a comparison of individual RSM performance.
Importantly, he supports this argument with the statement of
DeHont who, in deposition testimony, admitted that the RSMs
“didn’t have control over these numbers.” DeHont did not admit
that these numbers were irrelevant but he did concede that the other
statistical method used was “the more relevant one.”
In Board’s deposition testimony, he admitted that this
statistic showed “territory snapshots . . . not snapshots of individual
performance.” He went on, however, to explain that even though
territories had been swapped and things had been shifted around,
he, knowing where everybody was and where they had been, was
able to evaluate individual performance based on this statistic.
Even in view of Board’s attempt to explain the relevance of this
statistic, we determine that Kautz has put forward evidence which
creates a dispute of fact on this issue. DeHont’s testimony that the
RSMs “didn’t have control over these numbers” would give a jury
a reasonable basis for concluding that the statistical method used
Finally, that Kautz was not rehired is not indicative of
discrimination. He signed an explicit agreement stating that Met-
Pro had no obligation to rehire him and he did not apply for the
vacant positions that he supposedly should have been rehired for.
That Met-Pro has in the past contacted and rehired someone whom
they had laid off does not make their failure to do so in this case
discriminatory. Further, Met-Pro was aware that Kautz was
working for one of its distributors at the time the RSM positions
opened up.
10
was not at all relevant to Met-Pro’s purported purpose: individual
evaluation of RSM performance.
Here, the Fuentes standard has been satisfied by Kautz
because it is implausible, inconsistent, incoherent and contradictory
for an employer to use a method of evaluation that has nothing to
do with individual performance in order to measure individual
performance. 32 F.3d at 765.
B.
The second statistical method requires a closer analysis.
This statistical method compares two years of what are described
as booking numbers, raw sales numbers computed at the time of
sale that are not adjusted to later variances or profit margins, and
then set forth the percentages between the two years. The figures
compare booking numbers in fiscal 2002 with fiscal 2001 for
each RSM.3
Bookings for fiscal year 2002 were measured as a
percentage of the RSM’s bookings for 2001, the previous fiscal
year. Of the six RSMs, Kautz had a percentage of 84.73%, the
second lowest. This means that in the fiscal year of 2002 he
booked only 84.73% of what he had booked in the previous
fiscal year. John Chenault was the lowest, with 76.9%. Here
again, Kautz does not dispute that this statistic was used nor does
he dispute the accuracy of the numbers, but asserts that the
methodology itself was pretextual.
1.
Kautz makes much of the circumstance that the number was
handwritten on the bottom of the page. He also asserts that this
ratio does not appear on any of Met-Pro’s computer runs and that
a comparison of two years of production by percentage had never
been used before to evaluate RSM performance.
With each of these assertions Kautz fails to create a question
of fact on the issue of pretext. The handwritten notation at the
bottom of each RSM’s bookings chart simply tabulates the booking
3
At oral argument Met-Pro’s counsel explained that the
employers fiscal year ends January 30.
11
numbers from a portion of the year—from October through
January—and recalculates the ratio already set forth in the
computer printout. Kautz actually fares better when the full fiscal
year is taken into account. He goes from 80.88% in the computer
generated partial year comparison to 84.73% in the full year
comparison. At the same time, the percentages of some of the other
RSMs are reduced by the added handwritten notation.
Kautz does not explain what he means by his contention that
this percentage does not appear on any of Met-Pro’s computer runs.
If his assertion is that this number only appears as a handwritten
notation, it is demonstrably false. The computer printout for each
RSM, marked exhibit 4, calculates “% versus Prior Year” for both
shipments and bookings. In any event, Kautz provides no citation
to the record for his claim that this statistic is something not
normally calculated.
Similarly, Kautz provides no supporting evidence for his
claim that this statistical method had never been used before to
evaluate the performance of RSMs. Even if there was some
evidentiary support for the allegation, a naked assertion that a
method of evaluation is new would not, by itself, support a finding
that it is implausible, inconsistent, incoherent or contradictory. See
Fuentes, 32 F.3d at 765.
2.
Kautz relies heavily on the contention that Met-Pro should
have looked at total bookings rather than the comparison between
the two fiscal years. He asserts, correctly, that he was the second
highest in total bookings for the 2001 and 2002 fiscal years. This
argument fails because it is axiomatic that the mere fact that a
different, perhaps better, method of evaluation could have been
used is not evidence of pretext unless the method that was used is
so deficient as to transgress the Fuentes standard. See Simpson,
142 F.3d at 647; Keller, 130 F.3d at 1109; Heally, 860 F.2d at
1216; Logue, 837 F.2d at 155 n. 5.
Moreover, Kautz has not shown Met-Pro’s focus on
comparative rather than total booking numbers to be implausible,
inconsistent, incoherent or contradictory. See Fuentes, 32 F.3d at
765. Kautz’s superiors at Met-Pro gave reasonable business-
12
oriented reasons why they felt that total booking numbers were not
the best basis for comparison. Kautz has not rebutted the logic of
these explanations and has not even offered a sound basis for his
own conclusion that total booking numbers are a better method of
evaluation. He failed to rebut the basic premise that total bookings
is a faulty indicia of performance, because the employer’s
marketing regions are not fungible in the sense that each region has
the same sales potential. Specific unrebutted evidence was
presented by Met-Pro that the marketing potential varied from
region to region.
Even if Kautz had succeeded in showing that total bookings
would provide a better basis for comparing the RSMs, that would
not be enough. Evidence that the method of evaluation an employer
used was not the best method does not amount to evidence that the
method was so implausible, inconsistent, incoherent or
contradictory that it must be a pretext for something else. See
Simpson, 142 F.3d at 647; Keller, 130 F.3d at 1109; Fuentes, 32
F.3d at 765; Heally, 860 F.2d at 1216; Logue, 837 F.2d at 155 n. 5.
VI.
We now turn to the contention that the two-year percentage
methodology was skewed deliberately and intentionally to
discriminate against Kautz because of his age. The argument seems
to be that people who have been on the job for a long time will be
more likely to have reached their full sales potential and have fairly
stable sales numbers. These veterans will be more affected by a
down turn in the market, like the one that apparently happened in
the industrial pump industry post 9/11/2001, than newer RSMs who
are more likely to improve from year to year, and therefore
compensate for the market downturn with improved performance.
This argument is riddled with assumptions and lacking
evidentiary support in the record. The argument assumes that more
experienced RSMs will have higher total bookings and that older
RSMs are the most experienced. Next, the argument assumes that
it takes a long period of time for an RSM to reach his or her sales
potential, as measured by total bookings, and that continued
improvement is not a viable or expected goal.
By its very nature a sound legal argument must contain a
13
conclusion supported by evidentiary premises. It is a formal
inference in which the conclusion is arrived at and affirmed on the
basis of one or more propositions, which are accepted as the
starting point of the process. Its key is the reasonable probability
that the conclusion flows from evidentiary datum because of past
experience in human affairs. The passage cannot be made by mere
speculation, intuition or guessing.
The record shows that Kautz had been an RSM since 1987;
we are not told how long the other RSM’s held their positions, and
it is quite possible that some have been working for Met-Pro as
long or longer.
Kautz relies on the the testimony of David Gutt, one of the
RSMs fired for cause after Kautz had been laid off. Gutt identified
himself as inexperienced, and said that Gene Silvers, another RSM,
did not have the same experience as Kautz. He identified Kautz,
John Chenault and Lloyd Hill as “veteran sales guys.”
This information does not support the argument that using
a bookings comparison rather than total bookings is deliberately
skewed to prejudice older workers. Gene Silvers, an inexperienced
RSM and 31 years-old, had the fourth best bookings comparison
percentage. Ronald Aceto, whose length of experience is not
revealed on our reading of the record and was 42 years-old, had the
second best bookings comparison percentage. This example casts
doubt on the premise that longevity as an RSM inevitably produces
a higher and more static production level.
The explanation offered by both Board and DeHont for the
use of the comparison percentages rather than some other
measurement is important. These corporate officers explained that
bookings expectations depend on the market conditions and other
factors in the area. One RSM might have higher raw booking
numbers than another but not be performing as well because of the
greater potential of his territory. Board explained that booking 2
million in a territory that would typically generate 4 million would
be poor performance compared to booking 1.5 million in a territory
that would typically generate 1.25 million. DeHont made a very
similar statement in his testimony using different numbers.
Board specifically stated: “You have to compare [booking
14
numbers] to historical data coming out of that same region to judge
whether the performance is better or worse than you would expect
based on historical data and based on current economical [sic]
conditions.” Morever, Board testified that bookings numbers from
the previous year are a key factor in setting the budget for a
particular region.
Kautz’s contention that the discrimination-free test for
productivity of RSMs is simply to tabulate total bookings by region
is demonstrably faulty because market demand varies by region.
Instead, Met-Pro decided that, in a falling market that required a
reduction in force, the better method was a comparison of bookings
in 2002 to bookings in 2001. This, Met-Pro reasoned, would
eliminate market demand differences that existed region by region,
and instead show a more neutral and more accurate picture of sales
production of the six RSMs.
Kautz offered no evidence that this method discriminated
against him because of his age. The idea that Met-Pro
discriminated against veteran sales managers because older men
reach a plateau in sales production is totally devoid of proof. The
record contains no empirical data of the existence of this plateau,
no evidence of reports or studies supporting this theory, no expert
witnesses. It is a thesis totally devoid of data to substantiate it.
To avoid summary judgment, the teachings of Fuentes
require a plaintiff to put forward “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of
credence.” 32 F.3d at 765 (internal quotation and citation omitted;
emphasis in the original). Kautz failed to meet this burden.
VII.
To the extent that Kautz relies on the teachings of Showalter
v. University of Pittsburgh Medical Center, 190 F.3d 231 (3d Cir.
1999), and Potence v. Hazleton Area School District, 357 F.3d 366(3d Cir. 2004), we conclude that the facts in those cases are
fundamentally dissimilar to the facts before us and, therefore, do
not serve as proper analogues.
In Showalter, the employer determined that it would lay off
15
the security guard with the least seniority in a downsizing situation.
190 F.3d at 237. The plaintiff proffered evidence that the employer
was presented with three different methods of determining
seniority–seniority in the job, department or hospital. Id. at 233.
Plaintiff also offered substantial proof that before the employer
decided which method to use, it knew which employee would be
affected by each test. Id. at 237-238 (“A reasonable factfinder
could conclude that [the employer] had the discretion to choose any
of the three forms of seniority; that he knew in advance the result
that each choice would produce; and that he selected department
seniority because he knew it would result in the layoff of the oldest
employee, Showalter.”). The employer countered that “as far as he
knew, this form of seniority was always used in a RIF.” Id. at 237.
We reversed the District Court’s grant of summary judgment
because “[b]ased on this evidence, a reasonable factfinder could
find” that the decision maker’s explanation “was pretextual.” Id.In the case at bar, there is no evidence that Board and
DeHont, the corporate officers who made the decision to lay off
Kautz, considered different methods of statistical analysis for
evaluating the RSMs knowing in advance which RSMs would
benefit under each method. Showalter depended for its holding on
the employer’s advanced knowledge that the method selected
would result in the termination of the oldest employee. Id. In
Potence, a major issue was whether the employer’s requirement of
refrigerant certification was a pretext. 357 F.3d at 370. The
plaintiff had proffered evidence that refrigerant certification was
not listed in an advertisement for the position which listed two
other certification requirements, plaintiff had been given several
different explanations of why he was not hired, the refrigerant
exam was given to him at the end of the hiring process after other
candidates had already been interviewed and several ageist remarks
had been made by a person involved in the hiring process. Id. at
370-371. This evidence created a question about the plausibility,
consistency and coherence of the refrigerant certification
requirement. As we have explained, Kautz has not succeeded in
creating a similar question concerning Met-Pro’s use of the
bookings comparison percentage.
Accordingly, the facts in these two cases indicated a
discriminatory animus not present in the case at bar.
16
VIII.
We turn now to Met-Pro’s second set of proffered
nondiscriminatory reasons for its selection of Kautz as the RSM to
lay off in the reduction in force circumstances. This involved the
comparison between the personnel files of Kautz and John
Chenault, the RSM who scored last in the statistic comparing
bookings in 2001 and 2002. It is important to note that Chenault’s
file undisputedly contained no complaints.
Kautz complains about the timing of the complaints against
him because all the complaints specifically pointed to by Met-Pro
occurred in the eight months which immediately preceded his
termination. Questioning the timing of these complaints, without
more, cannot suffice to establish pretext.4 Kautz must dispute the
factual basis of each negative document in his file offered by Met-
Pro as a basis for his termination.
Kautz also asserted that these documents were fabricated
long after the events took place. But this assertion is unsupported
by the record. Kautz’s claim that he had periodically reviewed his
file and never found any negative information about his
performance fails to create an issue of fact as to fabrication of
documents because he never claimed to have reviewed his file after
the incidents which were the subject of more recent negative
performance reviews.
In a final attempt to make a global showing of pretext for all
the negative documents in his file, Kautz points to his record of
basically positive performance reviews over the course of his time
at Met-Pro. The attempt to use past positive performance reviews
to show that more recent criticism was pretextual fails as a matter
of law. See Ezold, 983 F.2d at 528 (“Pretext is not established by
virtue of the fact that an employee has received some favorable
comments in some categories or has, in the past, received some
good evaluations.”).
4
We note, as did the District Court, that there is some
evidence of negative performance reviews in addition to the recent
criticism. Kautz’s file contained a 1991 memo criticizing his lack
of attention to detail and an evaluation in the same year making
similar criticism. Kautz, 2004 WL 1102773, at *6 n. 5.
17
A.
Turning to a specific examination of the adverse documents,
we first consider the June 18, 2001 memo from Edward Murphy,
whom we previously identified as Kautz’s immediate supervisor.
This memo faulted Kautz for depending entirely on information he
was getting from his distributor and not establishing his own line
of communication. This practice resulted in the loss of ability to
bid successfully on a specific job because of inability to “receive
any competitive pricing feedback.” Kautz also, according to the
memo, had similar performance problems in a subsequent project.
Kautz claims this memo is a pretext because it is
inconsistent with another memo sent from Murphy to Board on the
same day. Review of the memo from Murphy to Board reveals no
inconsistency. Murphy’s memo to Board does not directly blame
Kautz but it lists many of the same problems for which Murphy
faulted Kautz in the other memo: “not being aware of what the
competition was;” “lack of direct contact;” “allowing a distributor
to quote a job of this size.” No reasonable factfinder could
conclude that the second memo is inconsistent with the first and
that therefore the first was a pretext. Kautz has not pointed us to
any other dispute of the facts contained in this memo.
B.
The second document in the file is a December 12, 2001
memo from Murphy. This memo faulted Kautz for the loss of a
$38,000 job due to his “serious failure in judgment” regarding
pricing needs of the customer and failure to be informed as to the
status of the job. Kautz makes no effort to show that this memo is
a pretext. Nor was it rebutted before the District Court. Kautz, 2004
WL 1102773, at *7 (“Plaintiff does not address Murphy’s criticism
of his performance in December of 2001.”).
C.
The third item in the file is a memo by Board memorializing
the complaint of Gary Cauble, president of one of Met-Pro’s largest
18
distributors.5 Cauble also gave deposition testimony concerning
this complaint. The complaint was that after receiving plenty of
advanced notice of a job, Kautz had failed to inform the distributor
of Met-Pro’s desire to bid on it until the morning the bid was due,
which was too late. Kautz attempts to show that Cauble’s testimony
was not believable and was therefore a pretext. He points to
Cauble’s company’s financial interest in keeping Met-Pro happy
and the fact that during Kautz’s tenure with Met-Pro, Allesco’s
(Cauble’s distribution company) bookings consistently rose. Kautz
does not specifically assert that Cauble was lying about Kautz’s
performance, though he does say that based on the foregoing “a
jury could easily disregard all of Mr. Cauble’s testimony as not
worthy of belief.” (Br. at 27.) Kautz asks us to assume that
Cauble’s testimony is false because he is an interested party
without coming forth with specific evidence contradicting the
testimony.
Kautz points also to the testimony of David Kirkwood,
another distributor who was satisfied with his performance. Quite
obviously, the fact that one distributor is pleased does not in any
way create a question of fact about the opinion of a different
distributor related to specific instances of deficient performance.
To create a question of fact, Kautz must assert that there is no
factual basis for Cauble’s specific complaints and then present
some evidence supporting this claim. He has not done this.
D.
The fourth document in the file is the January 16, 2002
memo from Board asserting that, at a year-end review meeting,
Kautz “offered that Dean Pump had lost a $40,000 quote.” Kautz
did not know any of the pertinent information about this loss: “who
the job was lost to;” “what level the Dean distributor had quoted
5
There is some confusion about the date here. In his
deposition, Cauble states that the conversation was February 2000.
This date is picked up and used by the District Court. However, in
his memo, Board puts the date at 2002. Because Kautz is the
nonmoving party and the later date is more favorable to Kautz’s
theory of the case, we credit Board’s contemporaneous memo over
Cauble’s deposition.
19
the job at;” etc. He was told that this was an unacceptable lack of
awareness of his territory. In order to show pretext, Kautz claims
no memory of Board’s criticism at the meeting or the bid itself.
Lack of memory is not a denial of the truth of the memo and
therefore does not show pretext; a specific denial of the truth or
relevance of the employer’s proffered reason is required.
E.
The fifth document is a January 18, 2002 memo from Board
that criticizes Kautz for his inability to present any details about
what was going on in his territory at a weekly production meeting.
A similar memo with identical date and criticism is in the file from
Murphy. Kautz does not deny that these criticisms were made. He
also fails to assert that he was well prepared for this meeting.
Rather, he claims that he was not able to be as well prepared as the
other RSMs because he, unlike them, did not have a computer
sitting in front of him. An explanation of the reason he was less
prepared than he should have been for the meeting does not suffice
as a showing of pretext.
*****
In summary, the only proffered nondiscriminatory reason
offered by Met-Pro which Kautz has succeeded in materially
disputing is the sales by region statistic because of DeHont’s
admission that the RSMs “didn’t have control over these numbers.”
Our Court has held that the plaintiff must demonstrate that
each of the employers proffered nondiscriminatory reasons are
pretextual. Fuentes, 32 F.3d at 764. We have also said that this can
be done by showing that some of the employers proffered reasons
are a pretext in such a way that the employer’s credibility is
seriously undermined, therefore throwing all the proffered reasons
into doubt. Id. at 764 n. 7. We conclude that an issue of fact as to
the genuineness of one of the two statistical methods used by Met-
Pro to narrow the field, when the other method is not suspect, does
not create such an issue concerning Met-Pro’s credibility as to cast
all its proffered reasons into doubt.
Accordingly, the judgment of the District Court will be
affirmed.
20
SLOVITER, Circuit Judge, dissenting.
I respectfully disagree with the majority’s disposition of this
case because I believe that the reason advanced by Met-Pro
Corporation for Richard J. Kautz’s termination could be found by
a trier of fact to be pretextual.
Of course, an employer is, and should be, free to evaluate an
employee’s performance according to its business judgment. But
when it uses a method of evaluation that it is inherently
unreasonable, the factfinder may infer that the decision was based
on some other consideration. In Aka v. Washington Hosp. Ctr.,
156 F.3d 1284 (D.C. Cir. 1998) (en banc), the United States Court
of Appeals for the District of Columbia Circuit held that: “[i]f a
factfinder can conclude that a reasonable employer would have
found the plaintiff to be significantly better qualified for the job,
but this employer did not, the factfinder can legitimately infer that
the employer consciously selected a less-qualified candidate –
something that employers do not usually do, unless some other
strong consideration, such as discrimination, enters into the
picture.” 156 F.3d at 1294. The United States Court of Appeals
for the Second Circuit has reached a similar conclusion,
recognizing that “facts may exist from which a reasonable jury
could conclude that the employer’s ‘business decision’ was so
lacking in merit as to call into question its genuineness.” Dister v.
Cont’l Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988); see also
Ryther v. KARE 11, 108 F.3d 832, 840 (8th Cir. 1997) (holding
that factfinder was allowed to consider whether the basis
purportedly relied upon by defendant in its decision to fire plaintiff
was “actually a sound – as opposed to pretextual – basis upon
which to make employment decisions”); Loeb v. Textron, Inc., 600
F.2d 1003, 1012 n.6 (1st Cir. 1979) (“The reasonableness of the
employer’s reasons may of course be probative of whether they are
pretexts. The more idiosyncratic or questionable the employer’s
reason, the easier it will be to expose it as a pretext. . . .”).
Kautz argued that the statistical formula on which Met-Pro
21
relied was tilted to the disadvantage of the older worker, such as
Kautz. Rather than rely on the sales statistics, the traditional
evaluator used by Met-Pro, which showed that Kautz’s bookings
for fiscal year 2001 and fiscal year 2002 were the second highest
of the six regional sales managers, Met-Pro chose to rely on a
statistical formula that calculated the percentage of fiscal year 2002
bookings to the 2001 bookings. Under this formula, the total
amount that an employee sold was not considered; rather, the
determinative figure was the difference between an employee’s
sales in fiscal year 2001 and fiscal year 2002. Notably, the three
top earners of 2001 had the three worst percentages under the
formula adopted. Met-Pro’s formula confers the worst scores to
the best salespersons and the best scores to the less successful
salespersons. Under this formula, it is much more likely that the
youngest sellers will have the highest percentages while the older,
more experienced, employees will have the lowest, when 2002
sales are viewed as a percentage of those employees’ 2001 sales.
When use of this formula is considered in light of the bad economy
which Met-Pro acknowledges was experienced in 2002, the
employees most likely to have the highest percentages are those
who were the least able to take advantage of the prosperous
economic conditions of 2001. Not surprisingly, two of the three
top earners for 2001 were also the oldest employees. This formula
therefore is geared to the disadvantage of Met-Pro’s older
employees, such as Kautz.
A factfinder could reasonably determine that the use of this
method, rather than the sales as such, was so unreasonable that it
was a pretext for age discrimination. Because that flawed formula
was the basis of Kautz’s termination, I would reverse the grant of
summary judgment.