Armbruster v. UNISYS Corp. , 32 F.3d 768 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
8-1-1994
Armbruster, et al. v. UNISYS Corp.
Precedential or Non-Precedential:
Docket 91-0594
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 93-1333
___________
JOHN P. ARMBRUSTER; SHIRISH K. DIVEHCA; JAMES G.
DODSON; JON E. KINARD; WILLIAM MILLER; WILLIAM N.
MORITZ; JOHN PATTON; JEROME ROBIN; EDWARD L.
SHOWALTER; THOMAS C. STEVENS; JAMES TURNER;
MICHAEL J. YAGLEY; WILLIAM P. YANAN
v.
UNISYS CORPORATION
(D.C. Civil Action No. 91-05948)
___________
BASIL IWASHYNA
v.
UNISYS CORPORATION
(D.C. Civil Action No. 92-01402)
JOHN P. ARMBRUSTER; SHIRISH K. DIVECHA; JAMES G.
DODSON; JON E. KINARD; WILLIAM MILLER; WILLIAM N.
MORITZ; JOHN PATTON; JEROME ROBIN; EDWARD L.
SHOWALTER; THOMAS C. STEVENS; JAMES TURNER;
MICHAEL J. YAGLEY; WILLIAM P. YANAN; BASIL
IWASHYNA,
Appellants
___________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
___________
1
____________
Argued: October 7, 1993
PRESENT: HUTCHINSON, COWEN and NYGAARD, Circuit Judges
(Filed August 1, 1994)
____________
Walter H. Flamm, Jr., Esquire (Argued)
Frank P. Spada, Jr., Esquire
Michael J. Torchia, Esquire
Clark, Ladner, Fortenbaugh & Young
21st Floor
One Commerce Square
2005 Market Street
Philadelphia, PA 19103
Attorneys for Appellants
Michael J. Ossip, Esquire (Argued)
Joseph J. Costello, Esquire
Stacy K. Weinberg, Esquire
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
and
Joseph A. Teklits, Esquire
Unisys Corporation
Township Line and Union Meeting Roads
P.O. Box 500, M.S. C2N214
Blue Bell, PA 19424
Attorneys for Appellee
Steven S. Zaleznick, Esquire
Cathy Ventrell-Monsees, Esquire
Thomas W. Osborne, Esquire
American Association of Retired Persons
601 E Street, N.W.
Washington, DC 20049
Attorneys for Amicus Curiae American Association
of Retired Persons
____________
2
____________
OPINION OF THE COURT
____________
HUTCHINSON, Circuit Judge.
I. Introduction
Appellants, John P. Armbruster et al. (Armbruster
Group),0 seek reversal of an order granting summary judgment in
favor of appellee, Unisys Corporation (Unisys), on their claim of
age discrimination under the Age Discrimination in Employment Act
(ADEA), 29 U.S.C.A. §§ 621-634 (West 1985 & Supp. 1994).0 The
Armbruster Group consists of fourteen Unisys employees who were
terminated in February 1991 in the course of a reduction-in-force
(RIF) at Unisys. The Armbruster Group claims Unisys targeted
them for termination because of their age and sought to mask its
illegal discrimination by selecting them for a new work group the
company created for older persons it intended to terminate.
Unisys then fired them almost immediately after the formation of
the new group, ostensibly because the group had no work.
0
The fourteen appellants making up the Armbruster Group are John
Armbruster, Shirish K. Divecha, James G. Dodson, Jon E. Kinard,
William D. Miller, William N. Moritz, John Patton, Jerome I.
Robin, Edward L. Showalter, Thomas C. Stevens, James Turner,
Michael J. Yagley, William P. Yanan and Basil Iwashyna.
0
The district court also entered summary judgment in favor of
Unisys on the Armbruster Group's claim that Unisys terminated
them to limit their pension benefits in violation of section 510
of the Employee Retirement Income Security Act (ERISA), 29
U.S.C.A. § 1140 (West 1985). The Armbruster Group does not raise
this issue in its brief on appeal and therefore we will not
consider it.
3
On appeal the Armbruster Group contends they produced
evidence sufficient to show what is commonly referred to as a
"mixed motives" age discrimination case by introducing overt
evidence of discriminatory animus of the kind Justice O'Connor
described in her concurrence in Price Waterhouse v. Hopkins, 109
S. Ct. 1775 (1989).0 They also contend that the district court
should not have granted summary judgment because it failed to
view the evidence of pretext in the light most favorable to them,
made its own credibility determinations, ignored evidential facts
as well as reasonable inferences arising from them and
0
The Armbruster Group also argues section 107(a) of the Civil
Rights Act of 1991 (1991 Act), codified at 42 U.S.C.A.
§ 2000e-2(m) (West Supp. 1994), applies retroactively to entitle
them to a liability finding once they prove age was a "motivating
factor" in the employment decisions surrounding their transfer
into and termination from the new work group.
The parties failed to brief the question whether section
107(a) applies to ADEA as well as Title VII actions. Even if it
applied to ADEA, we believe section 107(a) would not govern pre-
enactment conduct. In Landgraf v. USI Film Products, 62 U.S.L.W.
4255 (U.S. 1994) and Rivers v. Roadway Express, Inc., 62 U.S.L.W.
4271 (U.S. 1994), the United States Supreme Court held sections
102 and 101, respectively, are not retroactive. Section 102
imposes additional liability for compensatory and punitive
damages when a violation of Title VII has been shown. The Court
looked to the text of the amendments and the legislative history
and concluded there was no expression of Congressional intent to
apply section 101 or section 102 retroactively. Therefore, they
could not receive retroactive application because they altered
the extent of a party's liability. Landgraf, 62 U.S.L.W. at
4266-67. To prevail, the Armbruster Group would have to persuade
us that section 107(a) did not alter the standard of causation
and the extent of liability by removing an employer's complete
Price Waterhouse defense that it would have taken the same
employment action based on a nondiscriminatory consideration. See
H.R. Rep. No. 102-40(I), 102d Cong., 1st Sess. 45, 48-49,
reprinted in 1991 U.S.C.C.A.N. 583, 586-87 (legislative history
of 1991 Act); see also infra n.14. We will not decide that issue
absent full briefing.
4
incorrectly excluded as hearsay an alleged discriminatory
statement made by a Unisys manager.
We hold that the district court correctly concluded the
Armbruster Group's evidence of discrimination does not make out a
Price Waterhouse case. We also hold, however, that the district
court erred in granting summary judgment against the Armbruster
Group because the circumstantial evidence present on this record,
viewed in the light most favorable to the Armbruster Group,
leaves a genuine issue of material fact as to whether Unisys's
proffered explanation for its termination of the members of the
group was a pretext for discrimination.0
II. Factual History
Unisys was created in late 1986 after the merger of the
Sperry and Burroughs Corporations. It then employed more than
120,000 people. During 1989, 1990 and 1991, Unisys encountered
severe financial difficulties and, in those years, suffered
losses of about $746 million, $551 million and $1 billion
dollars. By November 1, 1992, Unisys's workforce had been
reduced by half to about 60,000. The members of the Armbruster
0
On appeal, the Armbruster Group also contends, for the first
time, that Unisys's criteria for selection of the new work group
had a disparate impact on members of the protected class and
Unisys failed to introduce any evidence of business necessity
that could justify this discriminatory act. Whether a disparate
impact theory of liability is even available under ADEA has yet
to be addressed by the Supreme Court. See Hazen, 113 S. Ct. at
1706. In any event, because the district court has not yet
addressed this issue, we think it would be inappropriate for us
to consider it. See Frank v. Colt Indus., Inc., 910 F.2d 90, 100
(3d Cir. 1990).
5
Group had worked for either Sperry or Burroughs before the merger
and, at the time of their termination, averaged almost twenty-
five years of service.
The specific facts material to this case began to
unfold in the summer of 1990. Gerald Gagliardi (Gagliardi), a
Unisys Vice President, then headed an organization within Unisys
that was known as Customer Technical Services (CTS). Unisys
organized CTS in 1989 so that Unisys employees, rather than non-
Unisys third party vendors, could provide post-sale service and
support to customers. Its goal was to unify four different
divisions within Unisys and eliminate a $150 million loss that
Gagliardi believed was caused by a loose practice of hiring third
party vendors to perform project management and evaluate and bid
large software projects. Until CTS was formed, each of Unisys's
four divisions performed these functions separately.
Gagliardi began to organize a group within CTS to
provide project management for all four Unisys divisions. It
came to be known as the CTS Project Management Organization
(CTS/PMO). Gagliardi did not have a formal business plan for
this project but believed, from his own observations, that a
demand for project management existed in all four Unisys
divisions. Gagliardi first commandeered twelve men managed by
Robert Johnson (Johnson) from an existing project management
organization within Unisys's Systems Management Group (SMG),
placing Johnson in charge.
In early November of 1990, four or five more people
were transferred into the CTS/PMO at Gagliardi's direction. At
6
his deposition, Johnson testified that Gagliardi personally
identified the transferees for him and did not give him an
opportunity to reject them. Johnson testified he immediately
became concerned because there was not enough project management
work for his twelve man SMG group, let alone the added
transferees.
Gagliardi, however, continued to believe even more
project managers would be needed to do the anticipated surge of
work for the new CTS/PMO organization and so he asked David
Wedean (Wedean), Vice President of Applications Development and
Central Support Services at both Unisys's Atlanta, Georgia and
Radnor, Pennsylvania offices, to select persons within Unisys who
would be capable of performing project management work. Wedean
contacted Atlanta site manager Michael Sacco (Sacco) and Radnor
site manager Margaret Ryan (Ryan) and asked them to identify PMO
candidates using three criteria: (1) persons who had actual
project management experience or otherwise showed the skills and
experience needed to perform the work; (2) persons underutilized
in their present positions; and (3) persons whose transfer would
be least disruptive to their present organization.
The parties disagree on who actually selected the
employees to be transferred into the CTS/PMO, and there is scant
evidence in the record on this issue. Some deposition testimony,
however, does support the Armbruster Group's contention that
Gagliardi was involved in the selection of who was to be
transferred into the CTS/PMO. See Joint Appendix (Jt. App.) at
A-19, A-759-60. It is clear that Sacco and Ryan met with Wedean,
7
Johnson and Frank Haslam (Haslam), Director of Human Resources
for CTS, in November 1990 to review a list of transferees that
had been prepared. According to Johnson, the decision on who was
going to be transferred into the CTS/PMO had already been made;
he reviewed the list only "[t]o just understand who the people
were . . . [i]dentify the people, verify where they were coming
from, and who should announce to them initially that this was
taking place; that kind of thing." Jt. App. at A-762. Johnson
testified he did not request additional people for his group, had
nothing to do with the selection of CTS/PMO candidates and simply
acquiesced in Gagliardi's desire to place additional persons in
the CTS/PMO. Wedean also testified that, as they reviewed the
list with Johnson, Johnson relied on Ryan's and Sacco's opinions
because Johnson did not know any of the individuals.
By late November 1990, approximately forty Unisys
employees were transferred into the CTS/PMO group based in Blue
Bell, Pennsylvania.0 Many of them met with Johnson that very
afternoon after their supervisors had told them about the
transfer. During this introductory meeting, Johnson explained
the nature and goals of the CTS/PMO. According to one Armbruster
Group member, Johnson stated Unisys was "pulling senior people
together to do it." Jt. App. at A-171.
Another smaller group of thirty-five individuals was
brought into an Atlanta based CTS/PMO to make up the CTS/PMO's
0
It is not clear from the record whether all of the 40 Unisys
employees came from Unisys's Radnor office or whether some were
from other Unisys offices, such as Atlanta.
8
full complement. Armbruster Group member James Turner (Turner),
who was the Director of the General Accounting Applications
Business Unit in Atlanta before he was transferred into the Blue
Bell CTS/PMO, testified that the Atlanta transferees were not
told of the transfer until the day it occurred and that Wedean
instructed Sacco and others to have the Atlanta transferees move
their belongings out of their offices and to deactivate their
badges immediately because Wedean was concerned that the
transferees might damage the office if they had access to it over
the weekend.0
The CTS/PMO began functioning officially on December 1,
1990. Johnson did not give the transferees any assignments from
then until their termination nearly three months later, even
though they repeatedly requested work. Although the transferees
had nothing to do, Johnson discouraged them from completing
projects they had worked on with their former organizations
because those projects were "not . . . project management kind[s]
of task[s]." Jt. App. at A-773. Johnson admitted it was his
responsibility, along with his field personnel, to find work for
the transferees. He did not remember any new personnel receiving
any assignments.
As the transferees were arriving at the Blue Bell
facility only three offices were available and they were assigned
0
All 35 Atlanta CTS/PMO transferees were terminated on
February 26, 1991. Three brought suit against Unisys alleging
age discrimination under ADEA and the district court granted
summary judgment against them. See Meeker v. Unisys Corp., Civ.
No. 1:92-CV-246-ODE (N.D. Ga. May 11, 1993), appeal dismissed,
No. 93-8777 (11th Cir. Feb. 23, 1994).
9
on a first-come, first-served basis. All but the first three
transferees were assigned to cubicles. Johnson's office and his
SMG group were separated from the transferees by a partition.
Most of the transferees were not provided with computers and they
were not allowed to bring computers with them from their old
Unisys offices. "Manager Phones" (telephones with speakers) were
taken away and replaced with regular phones. The transferees
received only one and a half days of general CTS training, but
they were allowed to attend in-house courses and training upon
their own initiative when any were available. They never
received business cards, although Johnson testified he intended
to provide them.
Shortly after the official start of CTS/PMO operations
in early December 1990, Gagliardi was promoted and transferred to
another Unisys organization. On January 1, 1991, James Lee
Hillberg (Hillberg) replaced Gagliardi as Vice President and
General Manager of CTS. Hillberg's job was to make CTS
profitable as quickly as possible. When Hillberg met with
Johnson, he learned that the productivity of Johnson's original
twelve man SMG group was very low and that the transferees had no
work at all. Hillberg instructed Johnson to prepare a forecast
of Unisys's needs for project management work by region. On
January 7, 1991, Johnson sent a memorandum to all regional CTS
Vice Presidents requesting a forecast of project manager work for
1991. The responses showed a level of demand that was less than
anticipated and Hillberg decided on an immediate reduction-in-
force (RIF) because the number of employees in the CTS/PMO
10
greatly exceeded the number needed to perform the work
anticipated. Hillberg testified, however, "[t]here was never any
discussion of totally eliminating [the SMG] group." Jt. App. at
A-825.
Hillberg directed Johnson and Haslam to select criteria
appropriate for identifying individuals for the RIF. Johnson
produced a Staff Adjustment Analysis (Analysis) listing each of
the RIF candidates, their job title, social security number, date
of hire, age, race and sex, among other things. Attached to the
Analysis was a chart entitled "Skills/Experience Matrix" which
listed each RIF candidate's current project assignment, project
management experience, related experience and other related
background.
In his Analysis, Johnson concluded the forecasted
workload required only fifteen project managers and identified
the fifteen most qualified for retention. Those slated for
retention included all of the SMG group and three transferees.
After reviewing Johnson's Analysis, Hillberg decided to keep only
twelve project managers and asked Johnson to eliminate three more
persons from the retention list. From the group of fifteen,
Johnson selected the four with the least project management
experience and retained the oldest, age 54. Hillberg, Haslam and
a Unisys attorney reviewed and approved Johnson's proposed
terminations. Ultimately all but one of the CTS/PMO transferees
were terminated and all of Johnson's SMG group were retained.
Only two of those retained were less than 40 years of age.
11
On February 26, 1991, Johnson met with the Blue Bell
project managers selected for the RIF and announced their
immediate termination. The human resources department circulated
their resumes within Unisys and found positions for some, but not
all. Among those terminated were the employees in the Armbruster
Group. After the RIF, Johnson's SMG group continued to do
complex project management work. More routine project management
work was handled by CTS's regional field organizations. No
additional personnel were hired or transferred into the
centralized CTS/PMO after the terminations in February 1991.
Armbruster Group member Yanan was out on disability
leave when he was officially transferred into the CTS/PMO and
when the other transferees were later terminated. When he
returned to work in March of 1991 he reported to Johnson in Blue
Bell. Three days later, Weimer, the human resource
representative assigned to the Blue Bell CTS/PMO, terminated him.
During conversations with Weimer, Yanan says Weimer and he
discussed the reasons for the transferees' terminations and
Weimer told Yanan the transferees "should have seen the writing
on the wall" because they were not told anything for three
months. Jt. App. at A-655. Weimer also is said to have stated
sarcastically, "Gagliardi wouldn't do that, would he?" in
response to Yanan's questioning whether age was the reason for
the terminations. Jt. App. at A-662.
III. Procedural History
12
The Armbruster Group filed suit against Unisys in the
district court on September 20, 1991, alleging: (1) their
selection for and layoff from the CTS/PMO violated ADEA; and (2)
Unisys terminated them to prevent or limit their pension benefits
in violation of ERISA.0 The district court granted Unisys's
motion for summary judgment.
In its opinion the district court first concluded that
the Armbruster Group's evidence failed to make out a Price
Waterhouse case. In so concluding, the court considered several
pieces of evidence which the Armbruster Group contended showed an
overt discriminatory animus. It first considered age-related
comments allegedly made by Robert Markell (Markell), a Unisys
Vice President who resigned in August of 1990, and a 1988 comment
by Doyle Perry (Perry), President of Unisys's Public Sector
Division. Markell's statements were allegedly made at an
April 19, 1990 meeting to discuss labor costs at Unisys's Radnor
offices. Armbruster Group members Armbruster and Iwashnya, who
were in attendance, claim Markell stated Unisys could not "afford
to keep people over 50 and 50," meaning those over 50 years of
age who were earning over $50,000.00 annually. Armbruster v.
Unisys Corp., Civ. A. Nos. 91-5948, 92-1402, 1993 WL 93975, at *8
(E.D. Pa. March 24, 1993). The district court decided this
statement was inadmissible double hearsay under Federal Rules of
Evidence 801(d)(2)(D) and 805 because the Armbruster Group could
not identify the individual members of upper management for whom
0
Basil Iwashyna filed a similar complaint against Unisys on
March 6, 1992. The district court consolidated the actions.
13
Markell was speaking and so qualify the statement as an admission
by a party opponent. Markell did not know whether the persons
who made the statement had anything to do with CTS/PMO employment
decisions. Markell left Unisys four months before creation of
the CTS/PMO and there was no evidence to show that Markell
himself was involved in any of the CTS/PMO decisionmaking.
The court also considered a series of Unisys documents
that the Armbruster Group offered as overt evidence of
discriminatory animus. The Armbruster Group contended a
memorandum (Haslam memorandum) dated September 30, 1990, from
Haslam to Gagliardi and Donlon, Vice President of Human
Resources, about transferring some persons into CTS or
terminating them in a RIF demonstrated age was a substantial
factor in Unisys's decision to transfer them into and then
terminate them from the CTS/PMO because the memorandum showed the
ages of Armbruster Group members Kinard and Yanan. The
Armbruster Group also contended other Unisys personnel documents
containing age information, some concerning the CTS/PMO transfer
and RIF and others applying to Unisys employees generally, were
overt evidence of discriminatory animus in the selection,
transfer and RIF of individuals in the CTS/PMO.
The district court concluded these memoranda were not
enough to show a Price Waterhouse case because references to age
in a document concerning a personnel decision are not in and of
themselves overt evidence of discriminatory animus based on age.
The court noted that the Armbruster Group failed to introduce any
evidence to support an inference that the age notations on the
14
documents showed Unisys had a mind to discriminate on the basis
of age. In fact, Unisys introduced evidence tending to show it
routinely includes such age and ethnic information to prevent
discrimination. The Armbruster Group did not cite any legal
authority in support of its theory that the mere appearance of
age and date of birth information in a record concerning an
employment decision permits an inference of intentional
discrimination under Price Waterhouse. Thus, the district court
decided it should, as a matter of policy, reject the Armbruster
Group's Price Waterhouse theory to avoid a perverse effect on a
business's attempt to prevent discrimination through inclusion of
information about its employees' age and race in its personnel
records.
The court next considered whether the Armbruster
Group's evidence established a pretext case. Utilizing the
burden-shifting analysis set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981), the court assumed and
Unisys stipulated that the Armbruster Group's evidence showed a
prima facie case.0 The court then concluded Unisys's evidence
established legitimate, nondiscriminatory reasons for creating
the CTS/PMO and later terminating the transferees, including the
Armbruster Group. Accordingly, it examined the evidence the
0
Because 10 of the 12 persons ultimately retained in the CTS/PMO
were over 40 years old, the court noted some uncertainty on
whether the Armbruster Group met the fourth element of the
McDonnell Douglas/Burdine prima facie case, i.e., that plaintiffs
were replaced by unprotected, younger individuals.
15
Armbruster Group offered to show that Unisys's explanation was
pretextual. That evidence included the absence of any business
plan to support a need for the CTS/PMO. In this connection, the
Armbruster Group argued it was highly unlikely that a
sophisticated corporation like Unisys would take action to form
the CTS/PMO without a business plan showing a need at the same
time that it was drastically downsizing operations. The district
court decided the evidence indisputably refuted the Armbruster
Group's theory that Unisys created the CTS/PMO for the sole
purpose of terminating the transferees. It said:
[this] strains credulity. Acceptance of
plaintiffs' theory would effectively mean
that [Unisys] received the willing
cooperation of perhaps dozens of Unisys
officials, to the point of having officers
take promotional steps, such as asking CTS
management around the country to identify
opportunities for the new group, in laying
off an additional thirty-five (35) employees.
Since defendant had terminated thousands of
employees in the wake of an unfortunate
financial crisis, a reasonable jury would
engage in impermissible speculation by
inferring, as plaintiffs urge, that [Unisys]
would expend the money, time, and effort
needed to create and later dissolve a new
organization merely to fire additional
personnel.
Armbruster, 1993 WL 93975, at *13.
The court also considered a number of comments
allegedly made by Unisys supervisors, including Wedean's
statement that the Atlanta CTS/PMO transferees should be moved
out of their offices quickly, Well's statement that he had been
told to select his "senior people" for the CTS/PMO and human
16
resource staff member Weimer's remarks that the transferees
"should have seen the writing on the wall" and his allegedly
sarcastic statement "Gagliardi wouldn't do that, would he?" The
court concluded these statements, if made, were legally
insufficient to allow an inference of pretext because they were
merely stray remarks.
The court also rejected the Armbruster Group's theory
that seniority, grade level and high salary were code words for
age at Unisys and that Unisys's mention of them in documents
concerning the CTS/PMO personnel decisions was evidence of
pretext. First, the court observed that the three criteria used
in selecting candidates for the CTS/PMO did not include salary or
grade level. Second, it concluded that this theory was
decisively contradicted by other evidence, including evidence
that the oldest Armbruster Group member, Moritz, was earning the
lowest salary of all the plaintiffs when he was terminated, while
one of the youngest Armbruster Group members, Turner, was earning
the highest salary. The court also considered a memorandum from
Donlon (Donlon memorandum), the Vice President of the Human
Resources Department, suggesting subsequent RIFs would focus on
high level, highly paid management employees "who have little or
no impact on customer satisfaction or revenue attainment." Id.The court rejected the Donlon memorandum as evidence of pretext
because it did not specifically mention age or the CTS/PMO.
Finally, the Armbruster Group argued Unisys could not
rely upon the cost savings resulting from termination of high
salaried employees as a nondiscriminatory justification for
17
terminating employees in the protected age group. The court
determined the evidence did not support the Armbruster Group's
argument that Unisys was motivated by their high salaries because
the average salary of those retained was $3,200.00 higher than
the average salary of those terminated. In any event, the court
reasoned that ADEA does not prohibit an employer in financial
difficulties from considering costs in making personnel
decisions.0
The district court therefore concluded the Armbruster
Group failed to show a genuine disputed issue of material fact as
to pretext because the evidence did not show that the reason
Unisys gave for terminating members of the Armbruster Group was a
pretext for discrimination. Accordingly, it granted summary
judgment to Unisys on the Armbruster Group's ADEA claim. The
district court also granted summary judgment to Unisys on the
Armbruster Group's ERISA claim. The Armbruster Group timely
appealed the order granting summary judgment, but it does not
pursue the ERISA claim on this appeal. See supra n.2.
IV. Standard of Review
When reviewing an order granting summary judgment we
exercise plenary review and apply the same test the district
0
The American Association of Retired Persons (AARP) filed a brief
amicus curiae protesting the district court's "unfortunate use of
. . . language" which AARP believes "create[ed] the false
impression that under the ADEA cost-savings somehow justifies
otherwise unlawful age discrimination." Brief for Amicus at 4.
This statement is dicta in the district court's opinion and,
because we will reverse the district court for other reasons, we
do not address this question.
18
court should have applied. Under Federal Rule of Civil Procedure
56(c) that test is whether there is a genuine issue of material
fact and, if not, whether the moving party is entitled to
judgment as a matter of law. Gray v. York Newspapers, Inc., 957
F.2d 1070, 1078 (3d Cir. 1992). In so deciding, a court must
view the facts in the light most favorable to the nonmoving party
and draw all inferences in that party's favor. Id. There must,
however, be sufficient evidence for a jury to return a verdict in
favor of the nonmoving party; if the evidence is merely colorable
or not significantly probative, summary judgment should be
granted. Id. "A disputed fact is 'material' if it would affect
the outcome of the suit as determined by the substantive law."
Id. (citing Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248
(1986)).
19
V. "Mixed Motives" Analysis
We first consider whether the Armbruster Group's
evidence presented a so-called "mixed motives" age discrimination
case.0 The proof needed to establish a typical Price Waterhouse
framework for a claim alleging discriminatory discharge has
differed substantially from the framework in presenting a pretext
case. In a typical ADEA pretext case, the plaintiff can raise an
inference of age discrimination by showing (1) he is within the
protected age class, i.e. over forty; (2) he was qualified for
the position at issue; (3) he was dismissed despite being
qualified; and (4) he was replaced by a person sufficiently
younger to permit an inference of age discrimination. Burdine,
450 U.S. at 253; McDonnell Douglas, 411 U.S. at 802; Gray, 957
F.2d at 1078. In RIF cases, this framework is inadequate with
respect to the last factor. To establish a prima facie case
under the McDonnell-Douglas/Burdine pretext framework in a RIF
case, the plaintiff must show he was in the protected class, he
was qualified, he was laid off and other unprotected workers were
retained. Seman v. Coplay Cement Co., No. 93-3544, 1994 WL
244883, at *3 (3d Cir. June 8, 1994); Billet v. Cigna Corp., 940
F.2d 812, 816 n.3 (3d Cir. 1991); see also White v. Westinghouse
Elec. Co., 862 F.2d 56, 60 (3d Cir. 1988) (same), abrogated on
other grounds, Hazen Paper Co. v. Biggins, 113 S. Ct. 17010
Where appropriate, the analysis used in describing the
evidentiary burdens in Title VII cases is also used in ADEA
cases. See, e.g., Seman v. Coplay Cement Co., No. 93-3544, at
n.7 (3d Cir. June __, 1994); Duffy v. Wheeling Pittsburgh Steel
Corp., 738 F.2d 1393, 1396 (3d Cir.), cert. denied, 469 U.S. 1087(1984).
20
(1993).0 Once a plaintiff with a claim for illegal
discrimination produces evidence showing these four facts, he has
made out a prima facie case under the pretext framework and the
defendant then has to proffer a legitimate nondiscriminatory
reason for the adverse employment decision. Burdine, 450 U.S. at
253; Gray, 957 F.2d at 1078. If the defendant presents evidence
of a legitimate nondiscriminatory reason for the adverse
employment decision, the presumption of discrimination drops from
the case and the plaintiff must offer evidence tending to show
the defendant's explanation is a pretext for discrimination.
Burdine, 450 U.S. at 254-55, 257; Gray, 957 F.2d at 1078. In an
ADEA case within the pretext framework, the plaintiff has
retained the burden of persuading the factfinder that age
actually played a role in the adverse employment decision and had
a determinative influence on the outcome.0 Hazen, 113 S. Ct. at
0
In Mitchell v. Data General Corp., 12 F.3d 1310, 1315 (4th Cir.
1993), the United States Court of Appeals for the Fourth Circuit
recently held that a plaintiff in a RIF case seeking to establish
a prima facie case has to show (1) he was protected by the ADEA;
(2) he was selected for discharge from a larger group of
candidates; (3) his work performance was comparable to the lowest
level of those retained; and (4) the RIF produced a work force
containing some unprotected individuals whose work performance
was lower than the plaintiff's. The court reasoned such a prima
facie requirement would zero in on age discrimination where the
selection of persons to be terminated is said to be based on
relative performance. Id.0
Unisys argues Griffiths v. Cigna Corp., 988 F.2d 457, 472 (3d
Cir. 1993) (emphasis added) requires a plaintiff in a pretext
case to show "the discriminatory motive was the sole cause of the
employment action." In Miller v. Cigna Corp., No. 93-1773, 1994
WL 283269 (3d Cir. June 28, 1994), in distinguishing Griffiths
and in commenting on its statement that illegal discrimination
must be the "sole cause" of an employer's decision in a pretext
case, we held, in light of St. Mary's, that in a pretext case
"the plaintiff's burden is to show that the prohibited
21
1706; see St. Mary's, 113 S. Ct. at 2748 (plaintiff retains
burden of showing discrimination was true reason for employment
decision).
By contrast, in the Price Waterhouse framework in a
case unaffected by the Civil Rights Act of 1991, the evidence the
plaintiff produces is so revealing of discriminatory animus that
it is not necessary to rely on any presumption from the prima
facie case to shift the burden of production. Both the burden of
production and the risk of non-persuasion are shifted to the
defendant who, because of the inference the overt evidence
showing the employee's bias permits, must persuade the factfinder
that even if discrimination was a motivating factor in the
adverse employment decision, it would have made the same
employment decision regardless of its discriminatory animus.
Price Waterhouse, 490 U.S. at 244-46; Griffiths v. Cigna Corp.,
988 F.2d 457, 469-70 & n.12 (3d Cir. 1993).
The evidence required to establish a Price Waterhouse
case was termed "direct" evidence by Justice O'Connor in her
concurrence with the Price Waterhouse plurality where she said:
[S]tray remarks in the workplace, while
perhaps probative of sexual harassment,
cannot justify requiring the employer to
prove that its hiring or promotion decisions
were based on legitimate criteria. Nor can
statements by nondecisionmakers, or
statements by decisionmakers unrelated to the
decisional process itself, suffice to satisfy
the plaintiff's burden in this regard. . . .
What is required is . . . direct evidence
consideration played a role in the decisionmaking process and
that it was a determinative factor in the outcome of that
process." Id. at *12 (footnote omitted).
22
that decisionmakers placed substantial
negative reliance on an illegitimate
criterion in reaching their decision.
Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring)
(citation omitted). We have said that the evidence required to
come within the Price Waterhouse framework must directly reflect
a discriminatory or retaliatory animus on the part of a person
involved in the decisionmaking process. Griffiths, 988 F.2d at
470; see Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 181-
82 (2d Cir. 1992) (ADEA case suggesting word "direct" may not be
a precisely accurate modifier, but plainly differentiating the
evidence the Price Waterhouse framework requires from the kind of
circumstantial evidence needed to make out a McDonnell-
Douglas/Burdine prima facie case). Once the plaintiff has
produced evidence that satisfies Price Waterhouse, as we have
stated, the burden of production and the risk of non-persuasion
shift to the defendant to introduce evidence showing the
defendant would have made the same adverse employment decision
regardless of the discrimination. Griffiths, 988 F.2d at 469-
70.0
In this case the district court considered whether the
remarks shown on this record were "direct" evidence of
intentional discrimination. It focused on Markell's "fifty and
0
Under section 107(a) of the 1991 Act, the defendant may no
longer be able to completely escape liability, as he could under
Price Waterhouse, by showing he would have made the same decision
regardless of consideration of the discriminatory factor, but he
can limit the plaintiff's remedies if he makes such a showing.
See 42 U.S.C.A. § 2000e-5(g)(2) (West Supp. 1994); see also supra
n.3.
23
fifty" comment and the documents containing information about the
age and date of birth of the persons selected for transfer. It
held that this evidence failed to show discriminatory animus
within the Price Waterhouse framework. We agree with the
district court that this evidence does not satisfy Price
Waterhouse, whether we label it as direct evidence or overt
evidence of discriminatory animus.
The district court first considered the "fifty and
fifty" statement Markell is alleged to have made during an
April 19, 1990, Unisys meeting to discuss labor costs that had
been scheduled several months before Gagliardi began creating the
CTS/PMO.0 Markell resigned from Unisys in August of 1990, at
least three months before the CTS/PMO transfers took place. He
testified he had no connection with employment decisions
regarding the CTS/PMO. Although Markell worked for Gagliardi and
was a decisionmaker with respect to the hiring and firing of
Unisys employees and he and Gagliardi had "lots" of contact
regarding downsizing at Unisys, Jt. App. at A-695, there is no
evidence connecting the "fifty and fifty" statement to Gagliardi
or any other CTS/PMO decisionmaker. Indeed, Markell testified he
could not remember Gagliardi making any age-related comments,
although he recalled that Gagliardi frequently commented on
employee positions in the Unisys corporate hierarchy, often in
derogatory terms. Markell's alleged statement is not
0
During his deposition Markell did not recall this meeting nor
did he recall making specific statements about people over the
age of 50 making over $50,000 in salary, but he admitted he may
have made general statements about levels and salaries.
24
attributable to a decisionmaker connected with the CTS/PMO
employment decisions and is too remote in time from the creation
of the CTS/PMO to constitute overt evidence sufficient to show
Unisys had a discriminatory animus towards older employees.0 See
Price Waterhouse, 490 U.S. at 277 (O'Connor, J., concurring); cf.
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 545,
523 (3d Cir. 1992) (law firm partner's discriminatory comment to
associate five years before partnership decision at issue too
temporally remote and isolated to be considered evidence of
discrimination in pretext case), cert. denied, 114 S. Ct. 88(1993). "Stray remarks by non-decisionmakers or by
decisionmakers unrelated to the decision process are rarely given
great weight, particularly if they were made temporally remote
from the date of decision." Ezold, 983 F.2d at 545. Thus, the
district court correctly determined Markell's statement did not
constitute overt evidence of discriminatory animus.0
0
In its district court brief opposing Unisys's motion for summary
judgment, the Armbruster Group also relied on an alleged
statement Perry, President of Unisys's Public Division Sector,
made in late 1988 during a meeting to discuss whether to create a
customer satisfaction director in each region of the Public
Sector group. Perry allegedly stated at the meeting "I'm going
to establish the position, but I don't want any over 50 burnouts
promoted." Armbruster, 1993 WL 93975, at *9. This alleged
statement was made more than two years before the creation of the
CTS/PMO, and there is no evidence linking it to Unisys's
employment decisions about the CTS/PMO. In any event, the
Armbruster Group has not pursued this argument on appeal.
0
The district court also correctly concluded this particular
statement was inadmissible hearsay under Federal Rule of Evidence
801(d)(2)(D) and 805. Markell never identified who gave him the
impression Unisys did not want to keep employees "over 50 and
50." Markell also testified that Gagliardi, to whom the
Armbruster Group tries to attribute Markell's statement, never
made any statements concerning employees' ages. Therefore,
25
The Armbruster Group's argument that several Unisys
documents containing age notations, birth dates and/or dates of
hire constitute evidence of discriminatory animus sufficient to
trigger Price Waterhouse also fails. First they refer to the
memorandum dated September 30, 1990 from Haslam, chief Human
Resources representative for the CTS/PMO, to Gagliardi and
Donlon, Vice President of Human Resources, with a copy to Weimer.
The Haslam memorandum discusses the need either to transfer or
RIF thirteen individuals, including Armbruster Group members
Yanan and Kinard. Only five of the thirteen listed individuals,
including Yanan and Kinard, have age and date of hire notations
handwritten next to their names. At the bottom of the memorandum
Haslam's summary notes state, "need final disposition on [Yanan
and Kinard] . . . [Gagliardi] will assist in [Yanan] . . . these
loose ends need to be resolved to finalize the CSD-CTS action."
Jt. App. at A-19. None of the remaining individuals, all of whom
were to be retained, had age or date of hire information written
next to their names.
Markell's statement is inadmissible double hearsay under Federal
Rule of Evidence 805. See Carden v. Westinghouse Elec. Corp.,
850 F.2d 996, 1002 (3d Cir. 1988). Big Apple BMW, Inc. v. BMW of
North America, Inc., 974 F.2d 1358, 1373 (3d Cir. 1992), cert.
denied, 113 S. Ct. 1262 (1993) is distinguishable. In Big Apple
BMW, the source of the discriminatory comment was identifiable
and therefore admissible as an admission under Federal Rule of
Evidence 801(d)(2)(D). Roebuck v. Drexel Univ., 852 F.2d 715 (3d
Cir. 1988), another case relied on by the Armbruster Group, is
also distinguishable because the discriminatory statements there
came from the president of the university who had a "significant
influence on the attitudes and procedures of the tenure
decisionmakers." Id. at 733. There is no evidence in the record
showing that Markell was in a similar position here.
26
Another document dated November 9, 1990, is a printed
list entitled "Project Manager List - Atlanta." Jt. App. at A-
21. The list includes the names of nineteen individuals and the
dates of birth, ages, sex, EEO classifications and performance
evaluations for all of them. A handwritten version of this list,
created on November 6, 1990, by N. Kenneth Clark, Human Resources
Manager in Atlanta, contains the same information for all but
three individuals not included on the typed list.
The Armbruster Group argues that these documents
containing age notations are overt evidence of discriminatory
animus that satisfies Price Waterhouse and defeats a summary
judgment motion. Unisys, however, has produced uncontradicted
evidence that its employees routinely prepared documents listing
employees' ages, dates of hire, race and sex in addition to other
employment information and it insists that its employees include
this information to prevent discrimination, especially during
RIFs. Unisys also argues that the Haslam memorandum and Kinard's
own deposition testimony reveal Kinard and Yanan were scheduled
for a RIF termination in October of 1990 but were "saved" from
the October RIF through Haslam's efforts and transferred into the
CTS/PMO instead. The Armbruster Group concedes that companies
may avoid discrimination by having their legal and human resource
staff use routine employment documents containing age information
but argues that in this case Unisys managers clearly used age
information to make transfer and termination decisions.
The district court rejected the Armbruster Group's
interpretation of the documents and instead accepted Unisys's
27
interpretation, which it supported with independent evidence,
primarily in the form of testimony by its own employees. We must
consider whether these documents, standing alone, are overt
evidence of age discriminatory animus at Unisys in relation to
the CTS/PMO.
The three cases the district court relied on to support
its conclusion that mere maintenance of age information for
employees is not enough to create an inference of intentional
discrimination are not much help in this analysis. In them, the
documents containing age notations did not relate to a RIF but
instead involved a calculation of the terminated employee's
severance pay or retirement benefits package. A termination
resulting from an age correlated factor is not a termination
because of age. See Hazen, 113 S. Ct. at 1707 (overruling White
v. Westinghouse Elec. Co., 862 F.2d 56 (3d Cir. 1988) on this
point).
In Wilson v. Firestone Tire & Rubber Co., 932 F.2d 510(6th Cir. 1991), the employer decided to eliminate an employee's
position in the course of a RIF. Id. at 512. The employer gave
the employee four choices, one of which was taking an early
retirement package. Id. at 513. The memorandum at issue was
developed by the employee's supervisor before the employee's
termination in order to compute what kind of severance package
the employer could offer the employee if he took the early
retirement package. Id. at 514. The court found no indication
in the memorandum that the employee's years of service, which
were noted in the memorandum as part of the computation regarding
28
severance pay, played any part in his inclusion in the RIF. Id.The court also held personnel documents showing employees'
birthdates and years of service were not overt evidence of
discriminatory animus, stating "the mere maintenance of such
information, absent direct evidence that it was used in making
adverse employment decisions, cannot create even a circumstantial
inference of discrimination." Id. Likewise, in Perry v.
Prudential-Bache Securities, Inc., 738 F. Supp. 843 (D.N.J.
1989), aff'd without opinion, 904 F.2d 696 (3d Cir.), cert.
denied, 111 S. Ct. 386 (1990), the court decided the age
notations in the document at issue were included to determine how
the employee's pension would be funded and were not evidence of
age discrimination. Id. at 853. Bowman v. Firestone Tire &
Rubber Co., 724 F. Supp. 493 (N.D. Ohio 1989), did not involve a
RIF. The documents at issue, "Age Data Forms" containing name,
address, date of birth, occupation and pay information, were
required to be maintained by the federal Equal Employment
Opportunity Commission and were used daily in management
decisions. Id. at 506.
Here, though the documents the Armbruster Group rely on
pertain to the individuals Unisys was transferring into the
CTS/PMO, we believe that they do not provide overt evidence of
discriminatory animus because none of them directly and
unequivocally indicate Unisys had a bias against older employees
from which a factfinder could directly infer that age was a
motivating factor in deciding who would be transferred into and
then terminated from the CTS/PMO. Indeed, it is not even
29
clearly shown that all of the documents are related to the
CTS/PMO transfers.
In addition, we agree with the district court that
"[h]aving accurate information pertaining to the age of employees
affected by a workforce restructuring readily available is
essential to allow employers properly to review their employment
decisions to comply with state and federal law." Armbruster,
1993 WL 93975, at *11 (citing Earley v. Champion Int'l Corp., 907
F.2d 1077, 1082 (11th Cir. 1990) ("Evaluations of the age of the
work force as part of a restructuring and reduction-in-force plan
are indicative of thorough business planning and are not direct
evidence of discriminatory intent."). Rarely will standard
employment documents, without more, constitute direct evidence of
intentional discrimination. See E.E.O.C. v. MCI Int'l, Inc., 829
F. Supp. 1438, 1447 (D.N.J. 1993) ("Documents which list
employees' ages, even documents which relate to a [RIF], are not
per se direct evidence of discrimination and may, indeed, be
innocuous. A document prepared . . . expressly for the purpose
of determining [RIF candidates] with consideration given to the
employees' proximity to retirement, however, is not so innocuous
. . . .") (citations omitted).
We will therefore affirm that part of the district
court's order granting summary judgment in favor of Unisys on the
Armbruster Group's claim that the evidence in this record
presents a Price Waterhouse case.0 Nevertheless, we think the
0
We do not mean to suggest that an employee must elect to proceed
on either a pretext or a Price Waterhouse theory at trial.
30
documents presented in this case contain age notations that may
be related to the adverse employment decision; therefore they may
be introduced as evidence of pretext, so long as they are
otherwise admissible. See Wilson, 932 F.2d at 514; see also In
re Interco Inc., 152 B.R. 273, 285 (E.D. Mo. 1993) (statistical
evidence coupled with handwritten document containing notations
about age of employees who were to be part of RIF sufficed to
establish prima facie pretext case of age discrimination).0
VI. Pretext Analysis
In Hazen, a case decided after Price Waterhouse,
Justice O'Connor, writing for a unanimous Court, stated an ADEA
Rather, we think that an employee may present his case under both
theories and the district court must then decide whether one or
both theories properly apply at some point in the proceedings
prior to instructing the jury. See, e.g., Price Waterhouse, 490
U.S. at 247 n.12; id. at 278 (O'Connor, J., concurring);
Griffiths, 988 F.2d at 472; see also Ostrowski, 968 F.2d at 185.
While the evidence here presented to us at the summary judgment
stage does not trigger the Price Waterhouse framework, the
evidence presented during trial may.
0
We note the district court in the Atlanta CTS/PMO litigation was
"unpersuaded that the fact that age was included on lists of
employee information is relevant circumstantial or direct
evidence of discrimination." Meeker, No. 1:92-cv-246-ODE, slip
op. at 21 n.12. It is not clear, however, that the Meeker court
had before it the same documentary evidence we have because that
court identifies the documentary evidence only as the Staff
Adjustment Analysis and "two other lists of employees [which]
include age or date of birth in addition to other information."
Id. at 14. The Meeker employees relied primarily on Markell's
testimony along with statistical evidence tending to show a
correlation between age and the likelihood of transfer into the
Atlanta CTS/PMO. Id. at 12, 14. The Meeker employees also
conceded that they had no overt evidence of discriminatory animus
that could trigger the Price Waterhouse framework. Id. at 11.
The Meeker court ultimately concluded plaintiffs established a
prima facie case of age discrimination but failed to present
sufficient evidence of pretext and thus granted summary judgment
to Unisys. Id. at 26.
31
disparate treatment claim "cannot succeed unless the employee's
protected trait actually played a role and had a determinative
influence on the outcome." Hazen, 113 S. Ct. at 1706. The type
of evidence required in a pretext case is not overt or
"[e]xplicit evidence of discrimination--i.e., the 'smoking gun,'"
as it is in a Price Waterhouse case. Ezold, 983 F.2d at 523; see
also Griffiths, 988 F.2d at 470. Rather, what is required has
been termed "circumstantial" evidence by the courts, or
"'competent evidence that the presumptively valid reason[] for
[the alleged unlawful employment action] [was] in fact a coverup
for a . . . discriminatory decision.'" Id. (quoting McDonnell
Douglas, 411 U.S. at 805). Thus, we turn to the question whether
the Armbruster Group has pointed to specific evidence that shows
there is a genuine issue of material fact on pretext.
In order to survive a summary judgment motion once the
defendant has produced evidence of a legitimate,
nondiscriminatory reason for an employment decision, a plaintiff
who claims invidious discrimination but lacks overt evidence of
discriminatory animus must point to evidence tending to show the
defendant's explanation is pretextual since the inference arising
from a prima facie case no longer exists. St. Mary's, 113 S. Ct.
at 2749.0 "A plaintiff can establish pretext in one of two ways:
0
The Supreme Court's opinion in St. Mary's has caused courts and
commentators to raise anew the question whether summary judgment
may be granted against a plaintiff who has established a prima
facie pretext case. See St. Mary's, 113 S. Ct. at 2747-49.
The two courts that our research shows have decided this
issue reached opposite conclusions. Moisi v. College of Sequoias
Community College Dist., 25 Cal. Rptr.2d 165, 172 (Cal. Ct. App.
32
'either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer's proffered reason is unworthy of
credence.'" Ezold, 983 F.2d at 523 (quoting Burdine, 450 U.S. at
256). The evidence of sham or pretext that Burdine requires the
plaintiff to produce does not have to show directly or overtly
that a discriminatory animus caused the adverse employment
decision, but the plaintiff must point to some evidence from
which pretext could be inferred. As the Supreme Court stated in
St. Mary's, "[t]he factfinder's disbelief of [the defendant's
5th Dist. 1993) decided that St. Mary's precludes summary
judgment in pretext cases because of the statement that the
credibility assessment of the employer's proffered reasons is for
the trier of fact. Bolton v. Scrivner, Inc., 836 F. Supp. 783(W.D. Okla. 1993) rejects this reading of St. Mary's. It states
St. Mary's language implies only that a factfinder's refusal to
believe a defendant's proffer, combined with a prima facie case,
permits an inference of discrimination. The plaintiff still
bears the burden of producing evidence to show a controversy over
the truth of defendant's explanation. Id. at 791-92.
The Bolton court decided that St. Mary's does not preclude
summary judgment for a defendant because it does not affect a
plaintiff's obligation to produce specific evidence in support of
the ultimate finding of illegal discrimination once the defendant
has offered a legitimate explanation for the allegedly
discriminatory act. The Bolton court also reasoned that there is
nothing in St. Mary's which specifically states the use of
summary judgment in discrimination cases is disfavored and that
giving St. Mary's such an interpretation would allow a plaintiff
to get his case to the factfinder without producing any evidence
of discrimination beyond what is necessary to establish a generic
prima facie case. Id. at 792. The Bolton court explained: "Such
a standard as the court adopts in Moisi would be much lower than
the one used for civil plaintiffs in other areas of the law and
would be unsupported by case law from either the Supreme Court or
the federal courts of appeal." Id. at 791-92. We too decline to
read St. Mary's as precluding summary judgment in all
discrimination cases in which the plaintiff has made out a prima
facie case.
33
explanation] may, together with the elements of the prima facie
case, suffice to show intentional discrimination" because it
allows the trier of fact to infer the ultimate fact of
intentional discrimination. St. Mary's, 113 S. Ct. at 2749.
After St. Mary's it seems clear, however, that the trier of fact
cannot find for the plaintiff merely because it disbelieves the
defendant's proffered explanation; it must also be persuaded that
the employment decision was the result of the bias that can be
inferred from the falsity of the defendant's explanation. Id.;
see Seman, 1994 WL 244883, at *10 n.13. Therefore, we believe an
ultimate finding of illegal discrimination in a pretext case
requires evidence showing a prima facie case and evidence showing
pretext. Each is necessary, and a plaintiff's proof is
insufficient unless both are shown.
Considering the evidence in this record, we believe the
Armbruster Group has met its summary judgment burden of pointing
to admissible evidence which tends to show pretext. That
evidence includes the alleged comments made by Wedean, Wells and
Weimer, along with the specific documents containing age
notations concerning transfers into and terminations from the
CTS/PMO group. Taken together, we think this is competent
evidence creating a genuine issue of material fact as to whether
the Armbruster Group's transfers into and terminations from the
CTS/PMO were age-related. Wedean, Wells and Weimer were all
either decisionmakers or personnel immediately involved in the
transfers into and/or terminations from the CTS/PMO. Their
alleged comments were made contemporaneously with the transfer
34
into the CTS/PMO or within a few weeks after the RIF took effect.
While we do not think that these comments are enough to show an
overtly discriminatory mind set at Unisys, they cannot be
disposed of as "stray remarks" on a pretext theory, and we think
that the district court erred in applying Price Waterhouse's
requirement of overt or direct evidence of discriminatory animus
to the Armbruster Group's pretext case.0
If the evidence is viewed in the light most favorable
to the Armbruster Group, as it should have been on summary
judgment, it supports their claim of age discrimination because
the evidence of remarks and age notations with specific reference
to the age of persons selected for transfer tends to show
Unisys's reasons for terminating the CTS/PMO transferees were
pretextual, i.e. more likely motivated by illegal discrimination,
when they are considered along with the Armbruster Group's other
evidence of discrimination. This other evidence includes, but is
not limited to, evidence that Unisys had no business plan for the
formation of the CTS/PMO and the manner in which the CTS/PMO was
formed and operated. Taken with the admissible comments
concerning age that were made by persons intimately involved in
the transfers, we think there is a genuine issue of material fact
as to whether the Armbruster Group's members were transferred or
0
We think these statements by Wedean, Wells and Weimer are
admissions that fall under Federal Rule of Evidence 801(d)(2)'s
exception to the hearsay rule. They are not double hearsay like
Markell's recital of what Gagliardi said. See Carden, 850 F.2d
at 1002; see also supra n.17.
35
terminated because of their age.0 Therefore, we will reverse the
district court's order granting summary judgment to Unisys and
remand for further proceedings.0
0
The district court found the Armbruster Group's theory of the
case "strains credulity." Armbruster, 1993 WL 93975, at *13. It
thought it unlikely that Unisys would go to such trouble to
terminate approximately 35 employees while it was in the midst of
terminating thousands. Because plaintiffs have pointed to
evidence which supports their theory and is not inherently
incredible, it is not our place, nor the district court's, to
make such a credibility determination on a motion for summary
judgment. "When deciding a motion for summary judgment . . . a
court's role remains circumscribed in that it is inappropriate
for a court to resolve factual disputes and to make credibility
determinations." Big Apple, 974 F.2d at 1363. The Court's role
is to decide whether the plaintiff has set forth specific facts
showing a genuine issue of material fact for trial. Id. We
think the Armbruster Group has produced evidence of pretext
sufficient to do so at the present stage of these proceedings.
We also note that the district court did not consider the
allegedly discriminatory statements, the Haslam memorandum or the
other CTS/PMO documents containing age references in determining
whether the Armbruster Group presented evidence sufficient to
withstand a motion for summary judgment in a pretext case. So
long as these pieces of evidence are otherwise admissible, they
should be considered as part of the Armbruster Group's pretext
case at trial.
Likewise, the Armbruster Group's evidence may be relevant to
show Unisys's explanation for their selection for and termination
from the CTS/PMO was pretextual. Further development of this
record, however, may show that the references to employees "over
50 and 50" indicates no more than Unisys's desire to reduce its
pension costs. See, e.g., Hazen, 113 S. Ct. at 1707 (holding
employer does not violate ADEA by firing employee before his
pension based on years of service vested, but leaving open
possibility that employer who targets employees with particular
status on assumption that these employees are likely to be older
thereby engages in age discrimination).
0
Because the district court, despite misgivings, permitted the
parties to proceed on a stipulation that plaintiffs have shown a
prima facie case and the existence of a prima facie case is also
assumed in their appellate briefing, we have considered only the
question whether the Armbruster Group has introduced evidence
showing Unisys's proffered explanation for the termination of its
36
The Armbruster Group also contends that Unisys
discriminated against them when it selected them for transfer
into and termination from the CTS/PMO group. In its opinion, the
district court addressed only the Armbruster Group's termination
from the CTS/PMO. On remand we think the district court may also
need to consider the evidence in this record concerning the
Armbruster Group's selection for transfer into the CTS/PMO. It
may also be of some significance that the SMG group apparently
remained separate from the CTS/PMO transferees at all times.
VII. Conclusion
We will affirm in part the order of the district court
granting summary judgment as to the Armbruster Group's ERISA
claim, vacate the order granting summary judgment on the
Armbruster Group's ADEA claim and remand for further proceedings
consistent with this opinion.
members was either likely motivated by discrimination or unworthy
of belief and that discrimination was the true reason for such
action. We do not reach the issue of whether the Armbruster
Group established a proper prima facie case. But see Maxfield v.
Sinclair, 766 F.2d 788, 792-93 (3d Cir. 1985), cert. denied, 474
U.S. 1057 (1986).
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