Torre v. Casio, Inc. ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
12-21-1994
Torre v. Casio, Inc.
Precedential or Non-Precedential:
Docket 94-7242
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 94-5143
___________
GABRIEL TORRE
Appellant,
vs.
CASIO, INC.
Appellee.
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 92-cv-01536)
___________
ARGUED SEPTEMBER 14, 1994
BEFORE: STAPLETON, LEWIS and ALARCON,* Circuit Judges.
(Filed December 21, 1994)
___________
*
Honorable Arthur A. Alarcon, United States Circuit Judge for
the Ninth Circuit Court of Appeals, sitting by designation.
Donato J. Battista (ARGUED)
Larry M. Cole
Cole & Cole
90 Court House Place
P.O. Box 8158
Jersey City, NJ 07308
Attorneys for Appellant
Michael G. Shannon (ARGUED)
Phillips, Lytle, Hitchcock, Blaine & Huber
437 Madison Avenue
New York, NY 10022
Attorney for Appellee
___________
OPINION OF THE COURT
___________
LEWIS, Circuit Judge.
In this case, we address the standard that must be
applied at summary judgment to a plaintiff's claims of
discrimination under the Age Discrimination in Employment Act, 29
U.S.C. § 621 et seq. (the "ADEA"). Because we find that the
district court erred in granting summary judgment to the
appellee, Casio, Inc. ("Casio"), we will reverse and remand for
trial.
I.
The dispute in this case involves Casio's transfer and
termination of Gabriel Torre during the period March through
June, 1990. Because this case is before us upon grant of a
summary judgment, we will explore the facts in evidence in some
depth below. The following sketch, however, provides the context
for this dispute.
A.
Torre was just shy of his 52nd birthday when he was
hired by Casio, an electronics company, in January 1983, as a
regional sales manager ("RSM") in Casio's consumer products
division. He left Casio in early 1985, but when he found that
his new job required him to travel more than he desired, he
returned to Casio in August 1985, with full seniority rights.
Shortly after his rehire, Torre was transferred and became RSM in
Casio's audio/visual division ("AVD") for the eastern sales
region, with responsibility for the East Coast of the United
States.
In November 1987, Gary Hand became general manager-AVD
and, shortly thereafter, vice-president-AVD. In both positions
he was Torre's direct supervisor, and he remained so until April
1989. At that point Barry Collins became national sales manager-
AVD, a position subordinate to Hand; as such, Collins became the
immediate supervisor of Torre and two other RSMs in the
audio/visual division, Mark Horowitz (age 40 in 1989) and Al
Olsberg (age 37 in 1989).
Torre alleges that Hand caused him numerous problems
and contends that Hand was driven by a desire to replace Torre
with a younger manager. Torre contends that Hand's alleged
animus, evidence of which we will discuss below, ultimately led
Casio on April 1, 1990, to transfer Torre, as a "subterfuge," to
the dead-end position of "product marketing manager," from which
he could be fired at a more propitious -- and seemingly innocent
-- moment. That time allegedly came on May 6, 1990, when Casio
notified Torre that he would be terminated as part of a reduction
in force.
Casio suggests a different story. Casio contends that
its senior management, including the company's president, John
McDonald, and executive vice-president for planning, Eisei
Nakagaki, came to believe that Torre should be fired after his
name repeatedly showed up on management's "problem" list. In
particular, management had come to believe that Torre was lazy
and unwilling to undertake the travel necessary to service his
region. Nakagaki twice instructed Collins to fire Torre, but
Casio contends that, rather than doing as he was told, Collins
spoke to Connie Herrel, the company's administrative
vice-president, whose duties included, among other things, human
resources and legal affairs. Collins told Herrel that Torre
would sue for age discrimination if he was terminated, and Herrel
said that she would take care of the problem.
Casio further contends that, in order to save Torre
from termination and avoid litigation expenses, Herrel designed
the new product marketing manager position by taking advantage of
certain personnel vacancies and combining responsibilities to
create a new position which would permit Torre to stay on and
continue to have significant duties. The new position, Casio
argues, satisfied both Casio and Torre: it took Torre out of
sales, where his performance had been criticized, and put him in
a position that took advantage of his experience, paid him the
same amount of money, and required less travel.
Casio notes that it was experiencing economic problems
in 1989 and that the business downturn continued through 1990.
As a result, the company was forced to reduce its labor force and
terminate certain West Coast operations. In the midst of this
economic squeeze, Casio contends, one of its competitors, Zenith
Corporation, filed charges with the United States Department of
Commerce alleging that Casio had violated anti-dumping
regulations. The Commerce Department decided to initiate formal
administrative review of the charges in mid-April 1990.
According to Casio, the Commerce Department
investigation threw the company into turmoil, forcing it to
reduce expenses and build reserves. Thus, Casio contends, senior
management -- specifically McDonald, Nakagaki, and Peter Owada,
Casio's executive vice-president for finance -- met to carry out
a directive from Casio's parent company in Japan to pare all
unnecessary expenses. Part of that exercise included reviewing
the Casio organizational chart with only one criterion in mind:
can Casio live without this person? Casio contends that Torre
failed that test, and was terminated as a result.
The district court found that, during the period
January through June 1990, Casio discharged 26 employees as part
of a reduction in force. Of those discharged, 19 were under the
age of 40. Only Torre, at 59, was over 50. Between April 1990
and October 1991, the total number of Casio employees declined
from 258 to 209.
Since Torre's termination, Casio notes, no one has
filled the position of product marketing manager-AVD. Also, from
the time Torre was transferred to the product marketing manager
position through 1992, never again had more than two RSMs in the
audio-visual division.
B.
After his termination, Torre brought a claim of age
discrimination before the Equal Employment Opportunity Commission
("EEOC"), but the EEOC rejected the claim after Casio explained
that it had terminated Torre due to continued poor market
conditions. Thus, Torre brought this suit, alleging age
discrimination in violation of the ADEA as well as state common
law wrongful discharge. Casio moved for summary judgment, and
the district court granted the motion on a number of grounds:
(1) there was no direct evidence that discrimination had
motivated either the transfer or the termination; (2) Torre had
failed to present a prima facie case under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), because he failed to
demonstrate that he had been replaced; and (3) Casio had
introduced evidence that its reasons for transferring and
terminating Torre were legitimate and nondiscriminatory, and
Torre had failed to introduce any evidence that the reasons
proffered were pretextual and that the real reason for the
transfer and termination were discriminatory.1 Torre appeals.
The district court had jurisdiction over this case under 29
U.S.C. § 623(a) and 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.
II.
A.
Section 623(a)(1) of Title 29 of the United States Code
provides that "[i]t shall be unlawful for an employer . . . to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age." 29 U.S.C. § 623(a)(1). A
plaintiff may demonstrate age discrimination under this portion
of the ADEA by either direct or indirect evidence. "`Direct
evidence of discrimination would be evidence which, if believed,
would prove the existence of the fact [in issue] without
inference or presumption.'" Earley v. Champion Int'l Corp., 907
F.2d 1077, 1081 (11th Cir. 1990), quoting and adding emphasis to
Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir. 1989).2
1
. The district court did not specifically address Torre's
state law claims in its opinion, but its order dismissed Torre's
complaint in its entirety.
2
. An example of evidence that would be considered "direct" is
found in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111
(1985). In TWA, former airline captains showed that an airline's
policy allowed those disqualified from continuing as a captain
for any reason other than age to transfer automatically to the
position of flight engineer, but required age-disqualified
However, evidence is not direct where the trier of fact must
infer the discrimination on the basis of age from an employer's
remarks. Perry v. Prudential-Bache Securities, Inc., 738 F.
Supp. 843, 851 (D. N.J. 1989), aff'd without opinion, 904 F.2d
696 (3d Cir.), cert. denied, 498 U.S. 958 (1990).3
Torre does not contend that he has presented a direct
evidence case of age discrimination.4 Rather, he urges his claim
under the shifting-burden analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Appellant's Br. at 20. (As we noted
in McKenna v. Pacific Rail Service, 32 F.3d 820 (3d Cir. 1994),
although McDonnell Douglas was itself a race discrimination suit
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, its shifting-burden analysis is applicable to age
discrimination claims, as well. McKenna, 32 F.3d at 825 n.3.)
(..continued)
captains to bid for engineer vacancies or retire if no vacancies
occurred prior to their 60th birthdays. Id. at 121. This scheme
directly demonstrated TWA's disparate treatment on the basis of
age.
3
. When direct evidence is offered to prove that an employer
discriminated, the shifting-burden analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) (see text immediately
following this note), is inapplicable and the case proceeds as an
ordinary civil suit. TWA, 469 U.S. at 121; Gavalik v.
Continental Can Co., 812 F.2d 834, 853 (3d Cir. 1987).
4
. Because Torre had not clearly stated his position at
summary judgment, the district court first evaluated Torre's
claim as a direct evidence case and properly concluded that there
was no direct evidence that discriminatory motives caused Casio
to transfer or fire Torre. Torre's counsel at oral argument
effectively conceded that Torre has no direct evidence, but
argued that certain episodes described in the record create a
reasonable inference of discriminatory animus. We address those
episodes infra p. 20.
"Under the familiar McDonnell Douglas shifting-burden analysis
applicable to federal employment discrimination cases involving
indirect proof of discrimination, the plaintiff bears the burden
of proving a relatively simple prima facie case, which the
employer must rebut by articulating a legitimate, non-
discriminatory reason for its actions." McKenna, 32 F.3d at 825.
Once the employer provides one or more justifications for its
decision, the presumption of age discrimination created by the
plaintiff's prima facie case is dispelled, and the plaintiff must
demonstrate that the employer's proffered reasons are pretextual.
As we recently noted in Fuentes v. Perskie, 32 F.3d 759
(3d Cir. 1994), "[a]t trial, the plaintiff [in a discrimination
case] must convince the factfinder `both that the [employer's
proffered] reason was false, and that discrimination was the real
reason'" for the decision about which the plaintiff complains.
Id. at 763, quoting St. Mary's Honor Ctr. v. Hicks, 113 S. Ct.
2742, 2752 (1993). However, to survive summary judgment, a
plaintiff need not go so far. At that preliminary stage, a
plaintiff may prevail "by either (i) discrediting the
[employer's] proffered reasons, either circumstantially or
directly, or (ii) adducing evidence, whether circumstantial or
direct, that discrimination was more likely than not a motivating
or determinative cause of the adverse employment action."
Fuentes, 32 F.2d at 764.
B.
Two issues are presented on this appeal, both of which
flow naturally from the shifting-burden analysis: (1) did the
existence of genuine issues of material fact preclude summary
judgment on Torre's claim that he made out a prima facie case of
discrimination by indirect evidence? (2) if Torre made out a
prima facie case, did he also demonstrate that there were genuine
issues of material fact in dispute concerning whether Casio's
proffered reasons for transferring and then terminating Torre
were pretextual or whether age discrimination actually motivated
those decisions?5 We explore these questions below.
On appeal from a summary judgment, we address the case
as if we were the district court -- that is, we exercise plenary
review of both facts and law. Additionally, in evaluating a
motion for summary judgment, we must look at the record in the
light most favorable to the nonmovant, giving that party the
5
. Casio had also contended that summary judgment should be
affirmed on the alternative ground that Torre had breached his
employment agreement because he was moonlighting while employed
by Casio. Casio argued that it would have fired Torre had it
known of his second job, and urged us to apply the "after-
acquired evidence" rule pioneered by certain of our sister
circuits to bar Torre's recovery here. See Summers v. State Farm
Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); McKennon v.
Nashville Banner Publishing Co., 9 F.3d 539 (6th Cir. 1993),
cert. granted, 114 S. Ct. 2099 (1994). However, Casio conceded
at oral argument that its claim was barred by Mardell v.
Harleyville Life Ins. Co., 31 F.3d 1221 (3d Cir. 1994), in which
we found that although after-acquired evidence might have some
relevance at the remedy stage, it cannot be used to insulate an
employer from liability.
benefit of all reasonable inferences derived from the evidence.
Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir. 1987).
1.
In evaluating Torre's prima facie case, the district
court purported to follow our statement in Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992), that
[i]n the absence of direct evidence, a
plaintiff may establish a prima facie case by
demonstrating by a preponderance of the
evidence that he or she (1) belongs to a
protected class, i.e. is at least 40 years of
age; (2) was qualified for the position;
(3) was dismissed despite being qualified;
and (4) ultimately was replaced by a person
sufficiently younger to permit an inference
of age discrimination.
The court noted that Casio did not contest the first three prongs
of Gray, but explained that Torre "ha[d] stipulated that he was
not replaced as RSM-AVD after he was transferred and that Casio
continued to operate with only two RSM's and that he was not
replaced as Product Marketing Manager-AVD after he was
terminated, and ha[d] conceded that that position was eliminated
in the reduction in force." Op. at 12-13 (footnote omitted).
Thus, the court concluded, "[i]n a nutshell, plaintiff has not
established a prima facie case of discrimination, and that
failure should be game, set, and match insofar as Casio's motion
for summary judgment is concerned." Id. at 13.
We disagree with the district court's analysis. As we
explained in Massarsky v. General Motors Corp., 706 F.2d 111 (3d
Cir. 1983), "the nature of the required showing" to establish a
prima facie case of disparate treatment by indirect evidence
"depends on the circumstances of the case." Massarsky, 706 F.2d
at 118 n.13, citing McDonnell Douglas, 411 U.S. at 802 n.13, and
Teamsters v. United States, 431 U.S. 324, 358 (1977). While we
noted in Gray that an ADEA plaintiff may establish his or her
prima facie case by meeting the four criteria announced there, we
did not conclude that those elements were inflexible. Indeed,
Gray grounded its choice of those elements upon Billet v. CIGNA
Corp., 940 F.2d 812, 816 n.3 (3d Cir. 1991), Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1214 (3d Cir. 1988), and Chipollini
v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987) (in
banc). While Chipollini stated that a plaintiff may prove his or
case by demonstrating the four elements listed in Gray, both
Billet and Healy specifically noted that the fourth element must
be relaxed in certain circumstances, as when there is a reduction
in force. See Billet, 940 F.2d at 816 n.3; Healy, 860 F.2d at
1214 n.1.6
Here, reformulation of the fourth element of Gray was
appropriate. At the time Torre was transferred and then
discharged, the two other RSM-AVD's, Olsberg and Horowitz -- aged
38 and 41, respectively -- were retained in their positions.7
6
. We are not troubled by our statement in Siegel v. Alpha
Wine Corp., 894 F.2d 50, 55 (3d Cir. 1990), that a plaintiff
"must" prove the four elements later discussed in Gray. This
statement did not purport to create an inflexible rule. First,
our later opinion in Gray undercuts such a reading, since it
speaks in the more flexible and permissive "may" rather than the
mandatory "must." Additionally, reading Siegel to create a rigid
prima facie burden would be inconsistent with Supreme Court
authority requiring a contextual approach.
7
. The district court wondered whether Torre could complain
about his transfer as an adverse job action at all, since "1)
When subsequent events made it economically impossible to hire a
new RSM, Olsberg subsumed Torre's responsibilities. J.A. 297.8
Additionally, when Torre was terminated in the reduction in
(..continued)
plaintiff's resume describes the position to which he was
transferred as `National Product and Marketing Manager',
seemingly more encompassing than the position of RSM; 2)
plaintiff experienced no reduction in pay; and 3) plaintiff was
no longer required to travel." Op. at 12. It is clear, however,
that a transfer, even without loss of pay or benefits, may, in
some circumstances, constitute an adverse job action. Collins v.
Illinois, 830 F.2d 692, 702-04 & 702 n.7 (7th Cir. 1987)
(collecting cases). Torre has created a material fact issue
concerning whether he was transferred from his RSM position to a
dead-end job that had effectively been eliminated before he was
transferred to it. See infra pp. 22-23. Furthermore, Torre has
also created a material fact issue concerning whether his
transfer and termination were part and parcel of the same
allegedly discriminatory scheme. See infra p. 18-20.
8
. Casio acknowledges that it began trying to fill Torre's RSM
position and in fact advertised the opening. Casio ceased such
efforts only when it became economically unsound to hire a
replacement. Other circuits have routinely found such action to
be sufficient to complete a prima facie case. E.g., Lipsett v.
University of Puerto Rico, 864 F.2d 881, 899 (1st Cir. 1988)
(fourth element of prima facie case satisfied by showing "that
the employer sought someone to perform the same work after [the
plaintiff] left"); Meiri v. Dacon, 759 F.2d 989, 996 (2d Cir.
1985) (provided the employer sought a replacement for the
discharged employee, "[t]he fact that [an employee's former]
position was ultimately eliminated is of little relevance and
should not sound a death knell to [a plaintiff's discrimination]
claim"); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th
Cir. 1987) (fourth prong of prima facie case satisfied if
employee proves that "employer subsequently replaced [the
employee] or sought a replacement"). Given the facts discussed
in the text, we need not decide whether mere advertisement for a
replacement is sufficient to complete a prima facie case.
However, assuming (without deciding) that Torre was transferred
and terminated because of age discrimination, it is difficult to
believe that Congress would have intended to allow Casio to
dismiss Torre for discriminatory reasons as long as subsequent
events made it uneconomical to hire someone to fill the spot.
force, other, similarly-situated but younger employees were
retained by Casio.9
Thus, younger people were not transferred when Torre
was transferred, and younger people subsumed his duties.
Furthermore, younger people were retained when Torre was
terminated. These facts suffice to complete Torre's prima facie
case: given Casio's concession concerning the other three Gray
elements, if Torre's proof stopped with the facts above, he would
carry his initial burden of "offering evidence that an employment
decision was based on a discriminatory criterion illegal under
the Act." Teamsters, 431 U.S. at 358. The inference of age
discrimination may not be overpowering, but we cannot say that,
as a matter of law, it is insufficient.
2.
Having found that Torre stated a prima facie case of
age discrimination, we must turn to whether he also demonstrated
that there were one or more material issues of fact in dispute
concerning whether Casio's proffered reasons for transferring and
terminating him were pretextual or whether discrimination
actually motivated those decisions. Although the district court
had found that Torre failed to present a prima facie case, it too
reached the second stage of the shifting-burden analysis and
concluded that Torre had failed to rebut Casio's legitimate
9
. Specifically, when Olsberg stated his intention to resign
on May 22, 1990, Casio chose to replace him with Richard Luberto,
age 28. On or about June 8, 1990, Horowitz resigned, and was
replaced by William Clark, age 41. Luberto was subsequently
discharged in December 1990. J.A. 23-24, 120-21.
business justifications. We attribute the district court's
holding, in part, to the fact that it ruled in this case prior to
our decision in Fuentes. Thus, the district court applied the
wrong legal standard: it held that "[i]n the context of a motion
for summary judgment, plaintiff must produce sufficient evidence
from which a rational factfinder could conclude that Casio's
reasons are unworthy of credence and that the real motivation
behind the transfer and/or termination was discrimination based
on plaintiff's age." Op. at 14-15. As we noted earlier, under
Fuentes, that is not so. Instead, at summary judgment a
plaintiff need only present evidence from which a reasonable
factfinder could conclude either that the defendant's proffered
justifications are not worthy of credence or that the real reason
for the decision was discrimination. Fuentes, 32 F.3d at 764.
Although the district court's failure to anticipate our
decision in Fuentes influenced its analysis, the district court
also resolved a host of material fact issues in concluding that
Torre had failed to rebut Casio's proffered explanations for the
transfer and termination. The district court essentially
accepted Casio's explanations in their entirety and failed to
address a significant amount of the evidence presented by Torre.
We now turn to Casio's justifications and conclude that Torre has
raised material fact issues that required denial of summary
judgment.
As we noted earlier (supra pp. 4-5), Casio offers
innocent explanations for its decisions. According to Casio,
John McDonald and Eisei Nakagaki wanted Torre fired because his
name kept showing up on management's problem list. On two
occasions, Nakagaki instructed Collins to fire Torre. Rather
than doing so, however, Collins went to Herrel and told her that
Torre would sue if he was fired. To save Torre his job and avoid
legal costs associated with a suit, Herrel created a new position
of product marketing manager and had Torre transferred to that
position. The transfer, according to Casio, was not an adverse
job action, but rather a way to satisfy all of the parties:
Casio would not have Torre in a front-line sales position, where
his performance had been criticized, but would still be able to
benefit from his substantial experience in sales. Meanwhile,
Torre would be paid essentially the same, would have substantial
new duties, and would not have to travel. (The RSM position was
a salary-plus-commission job, while the product marketing manager
position was a straight salaried position, but Torre does not
contest that his expected salary remained the same after he was
transferred.)
Unfortunately, according to Casio, the company's
financial picture worsened rapidly during the period surrounding
Torre's transfer, in part because Zenith filed anti-dumping
charges with the Commerce Department and the government decided
to investigate. In an effort to cut costs, Casio claims its
senior management, including McDonald and Nakagaki, instituted an
age-neutral reduction in force. Torre, along with many other,
younger employees, fell victim to unfortunate business necessity.
Finally, Casio stresses, there is no allegation that McDonald and
Nakagaki, the prime movers who caused the transfer and ultimately
made the decision to terminate, harbored any discriminatory
animus towards Torre.
We agree with the district court that there is
substantial support in the record for each step in Casio's
explanation of the transfer and termination decisions. There is
unrefuted evidence that McDonald and Nakagaki were dissatisfied
with Torre's performance and wanted him fired,10 and there is
testimony and documentary evidence supporting the other
10
. Torre stated that he did not receive any complaints about
his job performance while he was RSM-AVD and stated that he had
the highest sales in audio and second highest in video among all
regions during the period he was RSM-AVD. Torre also submitted
an affidavit from Collins stating that Torre "performed his
duties in an exceptional manner." J.A. 376. However, Casio
submitted with its summary judgment motion a number of memoranda
that had been sent to Torre, each of which criticized one or more
aspects of his performance. Id. at 254, 261, 263. Furthermore,
McDonald stated in his affidavit that Torre's name came up often
in management's review of problem areas. McDonald also stated
that management "came to feel that [Torre] was lazy and not
trying," that he was reluctant to travel, and that he did not
spend sufficient time with his customers and representatives.
Id. at 98. McDonald also said that "[f]ollowing a number of
meetings and having heard repeated problems with the performance
of plaintiff's region and plaintiff's performance, especially in
the area of not getting out to visit the accounts, Mr. Nakagaki,
Mr. Owada and I agreed that plaintiff should be removed from his
position." Id. at 100.
On more than one occasion prior to March, 1990, Nakagaki
told Collins to fire Torre because of his job performance. J.A.
273. In fact, in response to a Casio interrogatory, Torre
conceded that "sometime during the fall of 1989 Eisei Nakagaki
told Barry Collins that Gabe Torre should be fired because he is
not working and does not need the money. Nakagaki further
explained that anyone who played tennis as well as Gabe Torre
could not be devoting his time to his job." Id. at 275.
Additionally, according to Collins, Nakagaki criticized Torre's
performance before Collins on many occasions. E.g., id. at
271-72.
contentions, as well. Indeed, Casio's explanation for the
transfer and termination may ultimately prevail.
That, however, is not the point. Rather, looking at
the facts in the light most favorable to Torre and drawing all
reasonable inferences in his favor, the evidence at summary
judgment demonstrated that he could persuade a reasonable jury
that Casio's proffered reasons for the transfer and termination
were not worthy of credence.
First, Torre notes that there was deposition testimony
from which a jury could reasonably conclude that Hand was one of
the decisionmakers involved in the decisions to transfer and
terminate. John McDonald stated in his affidavit that Hand "did
not make the decision to transfer plaintiff and he did not make
the decision as to which employees would be included in the
reduction in force." J.A. 127. However, Collins testified that
when he met with Hand to discuss Torre's transfer, Hand "sat down
and told me what he was doing with [Torre]." J.A. 252 (emphasis
added). Collins said that Hand "was going to move -- I can't
tell you exactly what he said. He was going to move Gabe inside
and to take over the marketing duties. I don't remember his
exact words." Id. Collins then stated that Hand "said that he
wanted to put [Torre] in a box," and "went on to say that he
wanted to put [Torre] under a microscope, [to] wrap him so tight
that he would have to screw up." Id.
Collins followed these statements by saying that he
"also knew that [the] decision [to transfer Torre] came [from]
above [Hand]." J.A. 252. When pressed on this point, however,
he stated that
[a]ny time you move personnel inside of
Casio, there is a consensus of opinion. It
is not one individual's decision, unless that
individual may be John McDonald, Mr.
Nakagaki. Ms. Herrel certainly has that
ability. A few people have that ability, but
it had to be a consensus of opinion to make a
move like that. Gary is certainly not going
to consult down, he is going to consult up.
Id.
Collins' testimony, if credited, would undercut Casio's
explanation that McDonald and Nakagaki were the sole instigators
of Torre's transfer. A reasonable jury could conclude instead
that Collins' testimony established that Hand was the mastermind
because he said as much to Collins.11 Additionally, although
Collins testified that he knew that the ultimate decision came
from above Hand, his clarification of this comment indicates that
he did not, in fact, know that Hand did not make the decision,
and in any event Collins' testimony would be consistent with the
inference that Hand was the driving force behind the decision,
"consulting up" with McDonald and Nakagaki.12
11
. Hand's deposition testimony was ambiguous on this point:
he stated that the transfer decision "was discussed with and was
advised to me what the company wanted, that thought, and asked my
idea of what I thought about moving [Torre] to that position. I
thought it was a great idea." J.A. 307. Hand also acknowledged
that it was "possible" that he had been involved in discussions
leading to Torre's transfer. Id. at 592.
12
. Indeed, Herrel testified that when she spoke with McDonald
about the transfer, she told him that both Nakagaki and Hand
wanted to terminate Torre. J.A. 612. This testimony is
inconsistent with McDonald's testimony that Hand was not involved
in the process.
Collins' testimony also contradicts Casio's contention
that, in the words of McDonald, "[a]s of April 1, 1990," when
Torre was transferred, "Casio had absolutely no intention of
discharging plaintiff." J.A. 110. According to what Hand told
Collins, Torre's transfer was designed to be the first stage of
his ultimate discharge.
Hand's involvement is material because a jury could
reasonably conclude that he indeed harbored age-related animus
towards Torre. Torre presented evidence that, when Hand first
became Torre's supervisor in 1987, he sought to replace Torre
with a younger manager. According to letters and an affidavit of
a recruiter, Jerry Joseph, offered by Torre at summary judgment,
Hand told Joseph that one candidate suggested by Joseph was
unacceptable because he was too old, and that he did not want to
fill Torre's position with anyone who was over age 35.
J.A. 662-71.
In September of 1989,13 Torre received a message on his
answering machine to the effect that Hand needed a report from
Torre by the next day. During the course of the message, Hand
stated, "did you forget or are you getting too old, you senile
bastard?" J.A. 374.14
13
. The parties disagree about when -- and indeed whether --
this event occurred. The affidavits and deposition testimony
offer conflicting reports. Thus, for purposes of summary
judgment, we resolve this issue in Torre's favor.
14
. Hand did not recall having made the comment. J.A. 413.
Certainly, these pieces of evidence do not establish
that age discrimination motivated the decision to transfer or
terminate Torre. However, if credited by a jury, these episodes
could reasonably lead it to infer that Hand exhibited animus
towards Torre because of his age and that he wanted to replace
him with a younger manager. There is also evidence from which a
jury could reasonably conclude that Casio was aware of Hand's
predilection for younger managers.15
Aside from presenting evidence that Hand was a
decisionmaker in the transfer and termination, Torre also
identified other potential inconsistencies in Casio's explanation
about the transfer. First, Torre contends that Casio has
presented an incoherent picture of who was involved in creating
and defining the product marketing manager position to which he
was transferred. Herrel testified that she was responsible for
coming up with the new position and defining its duties, and
testified that she did so in late March 1990. J.A. 613. Yet
Torre notes that Hand signed a personnel requisition form on
March 15, 1990, requesting Torre to be transferred to the
position of "product manager." J.A. 593, 607, 655. Furthermore,
sometime in March, Hand notified Torre that he would be
transferred (J.A. 20) and, in early April, Hand sent Torre a
memorandum outlining his duties as product marketing manager (id.
15
. Specifically, Herrel testified at her deposition that she
was assigned the task of responding to the letters from Jerry
Joseph in 1988 which mentioned Hand's statements about wanting
younger candidates for Torre's position. J.A. 615-16.
at 310-11). Thus, a jury could reasonably conclude that Hand
played a significant role in developing Torre's new post. It
could also conclude that Herrel's testimony attempted to minimize
Hand's role in the transfer.
Torre also submitted evidence questioning whether the
"product marketing manager" position was, in fact, a new position
at all. In essence, Torre's theory is that he was transferred to
a position that had been eliminated in January 1990. Torre notes
that, in January 1990, Casio had terminated Roy Goldschmidt from
his position as product manager for AVD. At that time, Hand had
explained to Goldschmidt that his position was being eliminated
because projections indicated that there would not be enough
sales volume to support the position. J.A. 19. Yet when Hand
signed the personnel requisition for Torre's new position, he
called that position "product manager" -- the same name as the
position eliminated two months earlier. Id. at 593, 607, 655.
Torre also notes that administrative documents at Casio continued
to refer to his new position as "product manager" up through his
termination (id. at 649, 653), and that even documents created
after his termination referred to the position as "product
manager" (id. at 620-22).
Torre also questions whether his new duties were
anything more than Goldschmidt's old duties. Torre submitted an
affidavit from Goldschmidt himself, who said that he performed
all but one of the twelve duties outlined for Torre by Hand in
his April 6, 1990 memorandum describing Torre's new position.
J.A. 699-702. Torre also notes that Casio provided conflicting
explanations of whose jobs were being combined into the position
created for Torre, and what the job requirements were. Casio
told the EEOC that the new job combined Goldschmidt's duties with
those of Maryann Giannitto, a marketing services employee who had
been transferred in March 1990. J.A. 609-10. Herrel, however,
testified at her deposition that she combined Goldschmidt's
duties with the duties of marketing services employee Laurie Van
Lenten, who had resigned in January 1990. Id. at 614.16
Turning to the decision to terminate, Torre points out
that Casio's explanation for the cause of its reduction in force
varied over time. In a letter to the EEOC defending against
Torre's charges, Casio stated that Torre's termination was part
of an "across the board reduction in force" caused by "a
continued poor market." J.A. 660. Before the district court
(and again on appeal), however, Casio relied instead on
McDonald's affidavit, in which he stated that Torre's termination
was caused by the Commerce Department's decision to initiate the
anti-dumping investigation. See Appellee's Br. at 8 (citing J.A.
115).
3.
We do not find that the facts just discussed
necessarily demonstrate that Casio's explanation for its transfer
and termination of Torre are unworthy of credence. However,
Torre has provided sufficient evidence upon which a reasonable
16
. Both of these explanations are inconsistent with Casio's
explanation in its brief on appeal, in which it contends that the
position combined all three posts. Appellee's Br. at 6.
jury could conclude that, instead of trying to save Torre, Casio
was setting him up for termination when it transferred him to a
job that had already been eliminated once because it was
surplusage. A jury could reasonably conclude that Casio's
subsequent explanations for its behavior were an effort to
explain away Hand's role in the decision to transfer. From the
evidence presented at summary judgment, it would not be
unreasonable for the jury to conclude that Torre was not
transferred in order to save him a job, as Casio contends, but
rather to warehouse him. If the jury does not believe Casio's
business justifications, it will be left with Torre's prima facie
case and, perhaps, the conclusion that Hand harbored age-related
animus that manifested itself in the decision to transfer Torre
to a dead-end position from which he was terminated shortly
thereafter.
Ultimately, of course, Torre has to prove that, more
likely than not, Casio terminated him because of his age. The
case likely will turn on the substance and credibility of the
trial testimony of McDonald, Herrel, Hand, and Collins. Because
we cannot predict the outcome of that testimony at trial, and
because we recognize that juries are particularly suited to make
such credibility determinations, we believe that summary judgment
was inappropriate in this case.
III.
For the foregoing reasons, we will reverse the district
court's grant of summary judgment and remand for further
proceedings.