Sempier v. Johnson & Higgins ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
1-6-1995
Sempier v Johnson & Higgins
Precedential or Non-Precedential:
Docket 94-5208
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
----------
No. 94-5208
----------
BURT N. SEMPIER
Appellant
v.
JOHNSON & HIGGINS
----------
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 92-01708)
----------
Argued Friday, September 23, 1994
BEFORE: BECKER, COWEN and GARTH Circuit Judges
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(Opinion filed January 6, 1995)
----------
Charles F. Waskevich, Jr. (Argued)
Riker, Danzig, Scherer, Hyland
& Perretti
One Speedwell Avenue
Headquarters Plaza
Morristown, New Jersey 07962-1981
Attorney for Appellant
John F. Cannon
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Francis X. Dee (Argued)
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, New Jersey 07102
Attorney for Appellee
----------
OPINION OF THE COURT
----------
GARTH, Circuit Judge:
On March 9, 1994, the district court granted summary
judgment in favor of Johnson & Higgins ("J & H"), the employer of
appellant Burt Sempier. Sempier now appeals the district court's
grant of summary judgment on his Age Discrimination in Employment
Act (ADEA) claim, 29 U.S.C. § 263 (1988),1 and the discretionary
dismissal of his pendent state law claims. He also raises as
error the district court's substitution of a "Bill of
Particulars" in place of his interrogatories.
1
. 29 U.S.C. § 623(a) in relevant part provides:
It shall be unlawful for an employer--
(1) 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;
(2) to limit, segregate, or classify his employees
in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual's age . . . .
We have jurisdiction pursuant to 28 U.S.C. § 1291 to
review the March 9, 1994 final order of the district court.
Because the record reflects a genuine issue of material fact
regarding whether J & H's asserted nondiscriminatory reasons for
discharging Sempier are pretextual, we will reverse the summary
judgment entered in favor of J & H. We also conclude that the
district court abused its discretion in substituting its own
"Bill of Particulars" for Sempier's interrogatories.
I
Sempier joined appellee J & H, an insurance brokerage
and employee benefits consulting firm, in 1968.2 Sempier worked
as Comptroller until 1971 when he became Treasurer of J & H. In
1984, J & H created a new position of Chief Financial Officer
("CFO"), and the Board of Directors elected Sempier to that post.
The parties dispute whether the J & H directors
criticized Sempier's performance as CFO. Sempier avers that no
one advised him that his performance was less than satisfactory
nor did anyone bring to his attention any deficiencies in his
performance of his functions. App. 300. Robert Hatcher, the
firm's chairman who was Sempier's friend and had been
instrumental in Sempier being elected as CFO, states that he was
generally pleased with Sempier's work. At the same time, he
acknowledges that other directors had criticized Sempier's
2
. J & H is a closely held New Jersey corporation. It operates
as if it were a partnership. All stockholders are members of the
firm. All directors are employees of the firm.
performance. App. 363-65. Other J & H directors state in
affidavits that they believed that Sempier performed below
expectations. App. 727 (affidavit of Eric Johnson); App. 778-79
(affidavit of Kenneth Hecken).
In 1985, one year after Sempier assumed his duties as
CFO, an outside audit of the Finance Department, requested by
J & H director Eric Johnson, criticized the department's
operations. App. 728-29. After further investigation, Johnson
sought to have Sempier replaced. Despite Johnson's criticisms,
J & H unanimously elected Sempier to the Board of Directors in
1986. Hatcher supported Sempier's election to the Board of
Directors because he believed that this move would assist Sempier
in improving the Finance Department's operations. When Sempier
was elected, J & H required that he execute a letter of
resignation that would become effective upon a two-thirds vote of
the Board of Directors.
In May 1987, J & H removed Sempier from his
responsibilities as CFO and made him Chief Administrative Officer
("CAO") in charge of Management Information Systems ("MIS"),
Human Resources, Professional Development, and Real Estate and
Facilities. Sempier was unanimously reelected to the Board in
1989. Both sides dispute how Sempier performed as CAO.
Due to the increasing importance of MIS services and
the department's unsatisfactory record, J & H decided to elevate
the MIS department's status by hiring a Chief Information Officer
("CIO"), thereby removing MIS from Sempier's supervision.
Notwithstanding some lobbying by Hatcher, the firm denied Sempier
the CIO position. In December 1989, J & H hired Alan Page, who
is fourteen years younger than Sempier, as CIO. The directors
elected Page to the board in 1990.
Three months later, J & H hired Thomas Carpenter, who
is four years younger than Sempier, to assume responsibility for
Human Resources and Professional Development, starting in May
1990. Carpenter's arrival left Sempier with significantly
reduced responsibilities.
In May 1989, before either Page or Carpenter had been
hired, J & H had instituted an early retirement program to retire
"redundant" and "poorly performing" employees who were 55 years
of age or older. App. 636-37. The firm intended to use the
program either to "pull" employees into retirement through
incentives or to "push" them into retirement through involuntary
"terminations" which were to be characterized as downsizing.
App. 637 (Exhibit 8).
In April 1990, Hatcher, who was still the Chairman of
J & H, advised Sempier to retire early with certain enhancements
to his existing retirement package. Hatcher stated that Sempier
had "lost credibility" with unnamed senior managers. App. 301.
Sempier refused to retire. Hatcher responded, using strong and
unequivocal language, that Sempier had no choice but to retire or
to be forced out. App. 302.
Between April 1990 and April 1991, J & H engaged in
extended, and occasionally bitter, negotiations with Sempier
seeking to obtain his retirement or resignation. In January
1991, David Olsen succeeded Hatcher as Chairman of J & H. When,
in the spring of 1991, Sempier told Olsen that he had hired a
lawyer, Olsen told Sempier that he could no longer return to
J & H and should vacate his office. App. 81. At the same time,
Olsen wrote the firm's general counsel that "[i]t's obviously
time for hardball." App. 80. After Sempier consistently refused
to retire, the Board made effective Sempier's previously executed
resignation in June 1991.
Sempier filed an age discrimination claim with the
Equal Employment Opportunity Commission, received a right to sue
letter, and instituted an ADEA suit in the District of New Jersey
with pendent state law claims for breach of contract as well as
violations of the New Jersey Law Against Discrimination and the
New Jersey Business Corporations Act. J & H answered that
Sempier had been discharged for poor performance.
At the outset of the litigation, Sempier served two
sets of interrogatories and a series of document requests on
J & H. When J & H refused to respond to a substantial portion of
the discovery requested, Sempier sought an order from the
magistrate judge which would have compelled J & H to respond.
The magistrate judge denied Sempier's motion. On appeal, the
district court judge vacated the order of denial but remanded the
dispute to the magistrate judge without entering an order
compelling discovery. On remand, the magistrate judge relieved
J & H from answering the original two sets of interrogatories and
required that Sempier draft a third set of interrogatories. App.
563-64. After J & H refused to answer almost all of these
interrogatories, Sempier again sought a second order compelling
discovery. The magistrate judge denied Sempier's motion to
compel answers and ordered J & H to provide information
responding to a "Bill of Particulars" drafted by the court. App.
576. On appeal, the district court affirmed the magistrate
judge's order and added one question of its own to the "Bill of
Particulars."
Between November and December 1993, the parties
disputed whether J & H had complied with the court's orders to
answer the court's questions and to provide documents. In
December, Sempier filed additional motions for an order to compel
discovery and for partial summary judgment. J & H replied with
its motion for summary judgment.
The district court granted J & H's summary judgment
motion on the ADEA claim and dismissed the remaining pendent
claims without prejudice. The district court expressed concern
that Sempier had not made out a prima facie case because of an
inability to show that he was a qualified employee or replaced by
a sufficiently younger employee to raise an inference of age
discrimination. Nonetheless, it turned to J & H's asserted
nondiscriminatory reasons for Sempier's discharge and Sempier's
evidence of pretext.
The district court found that J & H had come forward
with two alleged reasons for Sempier's discharge: (1) that
Sempier's reduced responsibilities did not justify his continued
presence on the Board of Directors and (2) that Sempier's poor
performance had justified the reduction in his responsibilities
and eventual discharge. Moreover, the district court held that
Sempier had not produced sufficient evidence to allow a jury to
find that J & H's alleged nondiscriminatory reasons were a
pretext for discrimination. Accordingly, the court entered a
judgment in favor of J & H, denied Sempier's motion for partial
summary judgment, and dismissed Sempier's pendent state law
claims without prejudice.
Sempier filed a timely appeal.
II
A.
When we review a grant of summary judgment, we apply
the same test that the district court should have applied
initially. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896
(3d Cir.) (en banc), cert. dism'd, 483 U.S. 1052 (1987). Summary
judgment is appropriate only when the admissible evidence fails
to demonstrate a dispute of material fact and the moving party is
entitled to judgment as a matter of law. Id.; see Fed. R. Civ.
Proc. 56(c) (1994). When the moving party (here, J & H) does not
bear the burden of persuasion at trial, the moving party may meet
its burden on summary judgment by showing that the nonmoving
party's (here, Sempier's) evidence is insufficient to carry its
burden of persuasion at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986). Thereafter, the nonmoving party creates
a genuine issue of material fact if sufficient evidence is
provided to allow a reasonable jury to find for him at trial.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
In reviewing the record, the court must give the
nonmoving party the benefit of all reasonable inferences. Josey
v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993);
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.
1992); Chipollini, 814 F.2d at 900; see also id. at 901
(discussing the impropriety of credibility determinations on
summary judgment); Josey, 996 F.2d at 639 (same).
B.
Sempier prosecuted his case on the "pretext" theory
announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973) and later clarified in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor
Center v. Hicks, __ U.S. __, 113 S. Ct. 2742 (1993).3
As applied to ADEA cases, the plaintiff establishes a
prima facie case by showing that (1) he is over 40, (2) he is
qualified for the position in question, (3) he suffered an
adverse employment decision, and (4) he was replaced by a
sufficiently younger person to create an inference of age
discrimination. Chipollini, 814 F.2d at 897.4 This showing
3
. Although the pretext framework originated in the context of
Title VII, it has been applied to the ADEA. See, e.g., Geary v.
Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324n.4 (3d Cir. 1993).
4
. Sempier's complaint appears to suggest that J & H violated
the ADEA not only by discharging him as an employee but also by
removing him as a director. For the most part, the record and
the parties' briefs treat these two events as functionally
identical. Whether the ADEA extends to cover Sempier's status as
a director is a function of Sempier's duties and not his title.
See Nationwide Mutual Insurance Co. v. Darden, 112 S. Ct. 1344,
creates a presumption of age discrimination that the employer
must rebut by stating a legitimate nondiscriminatory reason for
the adverse employment decision. Hicks, __ U.S. at __, 113 S.
Ct. at 2747; Chipollini, 814 F.2d at 897. The plaintiff then has
the opportunity to demonstrate that the employer's stated reasons
were not its true reasons but were a pretext for discrimination.
Hicks, __ U.S. at __, 113 S. Ct. at 2747; Chipollini, 814 F.2d at
897. He may do this through direct or circumstantial evidence of
falsity or discrimination. Chauhan v. M. Alfieri Co., Inc., 897
F.2d 123, 128 (3d Cir. 1990); Chipollini, 814 F.2d at 898-99.
Moreover, to defeat a summary judgment motion based on
a defendant's proffer of a nondiscriminatory reason, a plaintiff
who has made a prima facie showing of discrimination need only
point to evidence establishing a reasonable inference that the
employer's proffered explanation is unworthy of credence.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). A plaintiff
is not required to produce evidence which necessarily leads to
the conclusion "that the employer did not act for the
nondiscriminatory reasons." Sorba v. Pennsylvania Drilling Co.,
(..continued)
1348-49 (1992) (considering the definition of employee under
ERISA); Frankel v. Bally, Inc., 987 F.2d 86, 89-91 (2d Cir. 1993)
(considering the test for who is covered under the ADEA); Equal
Employment Opportunity Commission v. Zippo Manufacturing Co., 713
F.2d 32, 36-38 (3d Cir. 1983) (same); Equal Employment
Opportunity Commission v. First Catholic Slovak Ladies
Association, 694 F.2d 1068, 1070 (6th Cir. 1982) (holding that
plaintiff's status as a director did not prevent the application
of the ADEA to plaintiff's position as an employee), cert.
denied, 464 U.S. 819 (1983). To the extent that Sempier on
remand pursues relief related to his status as a director, this
issue should be resolved by trial on the basis of the parties'
proof of his functions at J & H in that capacity.
821 F.2d 200, 205 (3d Cir. 1987), cert. denied, 484 U.S. 1019(1988).
III
Without holding that Sempier failed to establish a
prima facie case, the district court questioned whether Sempier
made out a prima facie case of discrimination. The district
court doubted that Sempier had shown that he was qualified to
work as the Chief Administrative Officer of J & H and doubted
that he was replaced by a sufficiently younger employee to raise
an inference of age discrimination.
We note however that the prima facie case under the
McDonnell Douglas-Burdine pretext framework is not intended to be
onerous. Burdine, 450 U.S. at 253. The prima facie case merely
"raises an inference of discrimination only because we presume
these acts, if otherwise unexplained, are more likely than not
based on the consideration of impermissible factors." Furnco
Construction Co. v. Waters, 438 U.S. 567, 577 (1978).
A.
We determine a plaintiff's qualifications for purposes
of proving a prima facie case by an objective standard. Weldon
v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990); Jalil v. Avdel
Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S.
1023 (1990). "[W]hile objective job qualifications should be
considered in evaluating the plaintiff's prima facie case, the
question of whether an employee possesses a subjective quality,
such as leadership or management skill, is better left to"
consideration of whether the employer's nondiscriminatory reason
for discharge is pretext. Weldon, 896 F.2d at 798. "Thus, to
deny the plaintiff an opportunity to move beyond the initial
stage of establishing a prima facie case because he has failed to
introduce evidence showing he possesses certain subjective
qualities would improperly prevent the court from examining the
criteria to determine whether their use was mere pretext." Id.
at 798-99.
Here, the district court misapplied this rule when it
evaluated Sempier's qualification by reference to J & H's
subjective criticism that Sempier lacked "management oriented"
skills and leadership ability. App. 895. Sempier had the
objective experience and education necessary to qualify as a
viable candidate for the positions he held. He had held
executive level positions at J & H for over twenty years.
Sempier also relied on the affidavit and depositions of
Hatcher, J & H's chairman. Hatcher had testified that he had
been satisfied with Sempier's performance. App. 895. In
response to this record, the district court observed, "[a]lthough
it would be unusual for a corporation to place an unqualified
individual in an executive position, it is not unimaginable."
App. 896-97. In so stating, the district court failed, as
required on summary judgment, to consider the evidence in the
light most favorable to Sempier, the nonmoving party. See Josey
v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993);
Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.
1992); Chipollini, 814 F.2d at 900. Indeed, the district court
apparently inferred that Sempier was unqualified for the position
he held.
Contrary to the inference of the district court, if we
consider the evidence in the light most favorable to Sempier, the
record of his twenty years employment as an executive, his record
as Comptroller and then Treasurer of J & H, his election to the
Board on two occasions, and his appointment as Chief Financial
Officer and then as Chief Administrative Officer leads to the
almost inevitable inference that he was qualified for the
position from which he was discharged. As we have said in a
similar context, "[t]hus, [plaintiff's] satisfactory performance
of duties over a long period of time leading to a promotion
clearly established his qualifications for the job." Jalil, 873
F.2d at 707. Sempier's qualifications therefore satisfy the
second prong of the prima facie case that Sempier was charged
with establishing, thus putting to rest the doubts raised by the
district court.
B.
To complete his prima facie case, Sempier does not need
to produce compelling evidence or conclusive proof that J & H's
adverse employment decision resulted from age discrimination.
Chipollini, 814 F.2d at 900. Rather he may point to a sufficient
age difference between himself and his replacement such that a
fact-finder can reasonably conclude that the employment decision
was made on the basis of age. Maxfield v. Sinclair Intern'l, 766
F.2d 788, 792 (3d Cir.), cert. denied, 474 U.S. 1057 (1985). Nor
is there any particular age difference that must be shown. Id.Different courts have held, for instance, that a five year
difference can be sufficient, Douglas v. Anderson, 656 F.2d 528,
533 (9th Cir. 1981), but that a one year difference cannot.
Gray, 957 F.2d at 1087.
The district court in this case considered only the
four year age difference between Sempier and Carpenter, who had
taken over some of Sempier's responsibilities. However, we are
not limited to considering only Sempier's final replacement.
Four months prior to the date that Carpenter became responsible
for Human Resources and Professional Development at J & H, a
substantial portion of Sempier's other functions were transferred
to Alan Page. Page is well over ten years younger than Sempier.
App. 711. The combined differences in age between Sempier on the
one hand and Page and Carpenter on the other is clearly
sufficient to satisfy the fourth prong of a prima facie case by
raising an inference of age discrimination.5
IV
A.
Having concluded that the record is more than
sufficient to dispel the district court's doubts as to Sempier's
prima facie case, we turn now to consider the evidence of J & H's
alleged reasons for Sempier's discharge. As we earlier stated,
after the plaintiff has established a prima facie case, the
5
. J & H contends that we cannot consider the transfer of
Sempier's duties to Page because it occurred outside of the 300
day period for filing a separate claim of age discrimination.
J & H's Brief at 38; see 29 U.S.C. § 626(d) (providing a 300 day
period in which to file an administrative charge).
The argument is disingenuous. J & H relies on the
incremental removal of Sempier's management responsibility over
Management Information Systems to justify Sempier's dismissal;
however, J & H asks us to limit our consideration of Sempier's
case to the facts that fall within the 300 days immediately prior
to when Sempier filed his administrative charge. Although
Carpenter was the last person to assume any of Sempier's
responsibilities, the process that led to Sempier's eventual
discharge began with the transfer of MIS authority from Sempier
to Page.
The statute of limitations for filing a charge of
discrimination may have barred our consideration of the transfer
of MIS authority to Page if that was Sempier's cause of action,
but it does not prevent us from considering that event in order
to determine whether Sempier has raised an inference of age
discrimination as a part of his prima facie case. See United
Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (barring a
separate claim of discrimination, but permitting use of the prior
events as evidence to prove a case of discrimination based on a
separate claim); Colgan v. Fisher Scientific Co., 935 F.2d 1407,
1420-21 (3d Cir.), cert. denied, 112 S. Ct. 379 (1991).
employer must produce evidence of a nondiscriminatory reason to
rebut the presumption of discrimination created by the prima
facie case. Hicks, __ U.S. at __, 113 S. Ct. at 2747;
Chipollini, 814 F.2d at 897.
Here, J & H has presented two reasons. First, J & H
states that it terminated Sempier because his company duties no
longer justified retaining him in his position. Second, it
contends that Sempier performed those duties poorly. J & H
attempted to establish each of these justifications through
affidavits of J & H executives and directors. As we understand
the record, J & H's nondiscriminatory reasons for Sempier's
discharge come down to this: Sempier performed so poorly that
almost all of his responsibilities at the firm were transferred
to others, leading ultimately to Sempier's discharge.
J & H produced the affidavits of two directors, who had
previously supervised Sempier, reflecting the directors'
discontent with Sempier's work. App. 778-79, 783-84 (affidavit
of Hecken); App. 726-32 (affidavit of Johnson). Additionally,
Hatcher's affidavit averred that many directors did not regard
Sempier highly and that Hatcher had used his influence to have
Sempier elected to the Board against the other directors' wishes.
App. 365, 369-70. To corroborate these assertions, J & H
included a consultant's report that criticized the operations of
the finance department during 1985-1987 when Sempier served as
CFO. App. 738-749. Finally, the company produced documents
disclosing that Sempier received less compensation from the
directors' merit compensation pool than some of the other
directors who held comparable positions.
B.
On the other hand, Sempier claims that these
allegations of poor performance are not worthy of credence and
are no more than a pretext for discrimination. The Supreme
Court, in Saint Mary's Honor Center v. Hicks, __ U.S. __, 113 S.
Ct. 2742 (1993), recently clarified the showing of pretext that a
plaintiff must make to win a discrimination case. Rejection of
the employer's nondiscriminatory explanation does not compel a
verdict in favor of the employee, but it permits the trier of
fact to infer discrimination and find for the plaintiff on the
basis of the allegations of discrimination in his prima facie
case. Hicks, __ U.S. at __, 113 S. Ct. at 2749; Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Seman v. Coplay Cement
Co., 26 F.3d 428, 433 (3d Cir. 1994). "The factfinder's
disbelief of the reasons put forward by the [employer] . . . may,
together with the elements of the [employee's] prima facie case,
suffice to show intentional discrimination." Hicks, __ U.S. at
__; 113 S. Ct. at 2749.
Accordingly, "a plaintiff who has made out a prima
facie case may defeat a motion for summary judgment by either (i)
discrediting the 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.3d at 764 (emphasis in original). If the plaintiff
produces sufficient evidence of pretext, he need not produce
additional evidence of discrimination beyond his prima facie case
to proceed to trial. Id.Pretext is not demonstrated by showing simply that the
employer was mistaken. Ezold v. Wolf, Block, Schorr and Solis-
Cohen, 983 F.2d 509, 531 (3d Cir. 1992), cert. denied, 114 S. Ct.
88 (1993). Instead the record is examined for evidence of
inconsistencies or anomalies that could support an inference that
the employer did not act for its stated reasons. Josey v. John
R. Hollinsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993).
Thus, we turn to the record to determine whether
Sempier has produced sufficient evidence to allow a jury to find
that J & H did not terminate him for poor performance. Sempier
emphasizes three evidentiary threads which create a genuine issue
of material fact. He first points to statements in his own
affidavit, in Hatcher's affidavit, and in Hatcher's deposition
testimony that his performance was satisfactory. App. 321, 325
(Sempier); App. 363-65 (Hatcher); App. 797 (Hatcher). The
district court found that Hatcher's additional statement that
other directors did not agree with Hatcher's favorable assessment
undermined the credibility of Hatcher's assertions of
satisfactory performance. While we may or may not find Sempier's
self evaluation and Hatcher's assessments of Sempier's
performance to be compelling evaluations of Sempier's work, it is
neither our role nor the district court's role on summary
judgment to compare the testimony of various affiants and decide
who is credible. Chipollini, 814 F.2d at 901; Josey, 996 F.2d at
637.
The district court, citing Billet v. CIGNA Corp., 940
F.2d 812 (3d Cir. 1991), also concluded that Sempier's self
evaluation was meaningless because only J & H's evaluation of
Sempier's performance was at issue. Billet states that the
inquiry into pretext centers upon the employer's beliefs and not
the employee's own perceptions. Id. at 825 ("However,
[plaintiff's] view of his performance is not at issue; what
matters is the perception of the decision maker."). Nonetheless,
Billet does not stand for the proposition that the employee's
belief that his performance was satisfactory is never relevant.
Billet concluded that the employee's assertions of his own good
performance were insufficient to prevent summary judgment where
the employer produced performance reviews and other documentary
evidence of misconduct and insubordination that demonstrated poor
performance. Id. at 818-22.
Where, as here, Sempier asserts not only that he
performed well but that he never received any unfavorable
criticism that his performance was poor or inadequate, the jury
could conclude that J & H's failure to fault Sempier's
performance for the twenty years prior to the negotiations
leading to his discharge makes suspect its post hoc assertions of
poor performance. This is especially true when J & H has failed
to produce any other evidence of poor performance or make
specific allegations of Sempier's deficiencies.
Sempier next points to two formal performance
evaluations from 1988 and 1989 in which Hecken, Sempier's
supervisor, wrote that Sempier's performance was satisfactory.
App. 308-19. In considering these evaluations, the district
court stated, solely on the basis of Hecken's affidavit, that
"[t]he evaluations were a first attempt by Defendant to open the
lines of communication between lower level directors and the
senior members of the board to whom they reported. Viewed in
this light, they are of little value in determining Plaintiff's
true level of performance." App. 906. In so stating, the
district court ignored the testimony of Hatcher at his deposition
that any critical comments concerning Sempier's performance
should be recorded in the performance evaluations. App. 799.
Hatcher also said that the compensation committee had previously
used the evaluations in determining directors' compensation.
App. 824-26. On summary judgment, it is not the court's role to
weigh the disputed evidence and decide which is more probative.
Finally, Sempier points to the coercive early
retirement program that J & H instituted shortly before it forced
Sempier's resignation. J & H documents showed that the company
instituted this program to generate a significant number of
retirements largely through monetary incentives. The district
court correctly concluded that the use of an early retirement
program to dismiss redundant or underperforming employees is not
by itself a violation of the ADEA. See Gray v. York Newspapers,
957 F.2d 1070, 1080-81 (3d Cir. 1992); Colgan v. Fisher
Scientific Co., 935 F.2d 1407, 1422 (3d Cir.), cert. denied, 112
S. Ct. 379 (1991). On the other hand, an early retirement
program designed to force employees who reach a senior age to
leave or face significant pressure to resign or retire might
itself create an inference of age discrimination. Gray, 957 U.S.
at 1081 (citing Henn v. National Geographic Soc'y, 819 F.2d 824,
826, 828-29 (7th Cir.), cert. denied, 484 U.S. 964 (1987)). It
is impermissible to force older employees to choose between
retirement or termination in an effort to eliminate older workers
on account of their age.
The record clearly discloses that Hatcher told Sempier
in no uncertain terms that he could either retire, face
continuing pressures to retire, or be terminated.6 The record
also reflects a mandatory policy at J & H that directors must
retire at set intervals corresponding to age. Later, after the
company learned that Sempier had sought legal counsel, Olsen,
J & H's Chairman, told Sempier to pack his office and leave.
While this evidence does not itself establish age discrimination,
a jury might reasonably determine from these events that J & H
offered Sempier early retirement as an effort to remove him
because of his age and not because of poor performance.
In cases such as the present one, the question for the
court is whether the record "could support an inference that the
employer did not act for non-discriminatory reasons, not whether
6
. In the April meeting at which Hatcher recommended early
retirement, Sempier recites that Hatcher told Sempier that
unnamed J & H managers "would let me [Sempier] rot, would cut my
balls off and otherwise make it unpleasant for me to stay." App.
302.
the evidence necessarily leads to that conclusion that the
employer did act for discriminatory reasons." Chipollini, 814
F.2d at 900 (emphasis in original); see also Fuentes, 32 F.3d at
764 (stating that the plaintiff need not show more than that the
employer's articulated reasons were implausible to survive
summary judgment). When the evidence is read in the light most
favorable to Sempier, a jury could reasonably find that J & H did
not terminate him because of poor performance but rather
discharged him because of his age.
V
To recap, once Sempier had made out a prima facie case
of age discrimination, a presumption arose that J & H had
discriminated against him. Burdine, 450 U.S. at 254. J & H
dispelled that presumption by coming forward with a
nondiscriminatory reason for Sempier's discharge, leaving nothing
but the permissible inference of discrimination created by the
prima facie case. Hicks, __ U.S. at __; 113 S. Ct. at 2748-49.
Sempier's attack on J & H's stated reasons for his discharge
leaves us with the paradigmatic case in which each party has
produced testimony and evidence that conflicts on the ultimate
issue -- whether Sempier was discharged for poor performance or
because of his age. The resulting conflict must be resolved by a
jury and cannot be resolved on summary judgment. Thus, the
summary judgment entered in favor of J & H must be reversed.7
7
. Sempier also raises as error the district court's denial of a
partial summary judgment in his favor on the issue of liability.
VI
In addition to challenging the district court's order
which granted summary judgment to J & H, an order which we now
hold must be reversed, Sempier also complains that the district
court abused its discretion in ruling on his discovery efforts.
In so doing, Sempier contends that he was prevented from
marshalling additional evidence establishing that J & H's
proffered reason for his discharge was pretextual.8
We normally do not become involved with "nitty gritty"
rulings on discovery matters. Nor do we generally engage in
exercises to determine whether a party's interrogatories are
relevant or are unduly burdensome. This appeal, however,
requires that we review the actions taken by the magistrate judge
and the district court judge with respect to discovery sought and
answered by the parties. While we will not examine each jot and
(..continued)
Sempier argues that J & H presented no evidence of his poor
performance. As we have discussed in text, the record reflects
that both Sempier and J & H have adduced conflicting evidence
over the reason for his discharge. This resulting conflict could
not be resolved by summary judgment in Sempier's favor.
8
. Sempier strongly disputes J & H's contention that he had
chosen to resist J & H's renewed motion for summary judgment
without completing the depositions that had been scheduled.
Sempier claims that the documents he sought from J & H were
essential in order to conduct his remaining depositions. He
asserts that the district court for that reason alone should have
denied J & H's motion for summary judgment and should have
permitted Sempier to complete his discovery. (Sempier Reply
Brief at p. 23.)
tittle of the discovery process, it is important to our analysis
that some background be furnished.
Sempier's complaint was filed in April 1992. In June
1992, Sempier served his first set of interrogatories and a
request for production of documents. In July 1992, Sempier
served a second set of interrogatories with a second request for
production of documents. Unfortunately, not all of the
interrogatories that were served have found their way into the
record, and thus, into the appendix. We have examined those that
have been reproduced in the appendix, and we find it difficult to
understand how the magistrate judge could have condoned the
answers given by J & H. Moreover, we are perplexed by the
failure of the magistrate judge or the district court judge to
compel responsive answers to the interrogatories -- almost all of
which appear to us to be relevant and directed to the issues of
Sempier's employment, performance and relationship with J & H.
For example, Interrogatory No. 36 sought the name of
each and every person who had supervision and/or control over
Sempier from January 1, 1986 through the termination of Sempier's
employment. It also sought, with respect to each such supervisor
identified, the job title, the department supervised, the duties
and responsibilities of the job, the date on which he or she
assumed the supervisory position, and, if the individual was not
still employed, the date and reason of termination and the last
known address. True, that interrogatory sought as well the date
of hire, date of birth and educational background, but those
three inquiries, if not deemed relevant in the district court's
judgment, could have been excised and the remainder of the
interrogatory answered. Yet J & H objected to the interrogatory
on the grounds that it was "overbroad, unduly burdensome, and
exceeding the scope of permissible discovery." J & H then
referred Sempier to a J & H Position Statement which does not
even appear to be part of the record.
Again, Interrogatory No. 44 asked J & H if it
voluntarily terminated the employment and/or relationship of
Sempier with J & H. J & H's response reads: "Defendant refers
plaintiff to pages 3 through 17 of the J & H Position Statement."
The following interrogatory, Interrogatory No. 45, sought the
dates on which the decision to terminate Sempier was made, and
J & H's response was "See Interrogatory No. 44." Interrogatory
No. 46 sought the factual basis for J & H's decision to terminate
Sempier and/or the relationship of Sempier with J & H. The
answer given by J & H: "Defendant refers plaintiff to the J & H
Position Statement." The other interrogatories which we have
reviewed -- all seemingly relevant -- have been answered in much
the same manner. All of J & H's answers disregard the
requirements of the Federal Rules of Civil Procedure. See Fed.
R. Civ. P. 33(a) (requiring separate and complete answers unless
specific objections are provided); 26(b) (defining the scope of
discovery) (1993 version).9
9
. Lead counsel for J & H is apparently the New York law firm of
Sullivan & Cromwell. Perhaps this accounts for the lack of
familiarity with New Jersey Federal Court practice. We note,
however, that J & H had local counsel. It is a matter of concern
to us that the discovery practice in this case was so badly
abused when at the least, local counsel had to have recognized
Without dwelling further on this subject, we observe
that the magistrate judge did not compel the answers which
Sempier sought. Rather, he relieved J & H from answering the
various discovery requests and instructed Sempier to issue a
third set of interrogatories and a third document request. The
latter two discovery requests were no more answered than the
earlier ones. In lieu of compelling answers to the third set of
interrogatories served by Sempier, the district court instructed
J & H to answer a four question "Bill of Particulars."
Against this background, we consider Sempier's
arguments. Under the Federal Rules of Civil Procedure and our
jurisprudence, district courts have broad discretion to manage
discovery. See, e.g., Walter v. Holiday Inns, Inc, 985 F.2d
1232, 1237 n.4 (3d Cir. 1993) (allowing over a one year delay in
the production of documents is not an abuse of discretion); Beard
v. Braunstein, 914 F.2d 434, 446 (3d Cir. 1990) (affirming
monetary sanction for failure to answer interrogatories); Comdyne
I, Inc. v. Corbin, 908 F.2d 1142, 1146 (3d Cir. 1990) (affirming
district court order striking the pleadings for failure to answer
interrogatories). Nonetheless, the district court's discretion
has boundaries, and in particular, we frown upon unnecessary
discovery limitations in Title VII, and hence ADEA, cases. See
Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983). In
such cases, other courts have refused, and now we refuse, "to
(..continued)
the need to conform to the standards of discovery practice which
have long been established in the District of New Jersey.
allow procedural technicalities to impede the full vindication of
guaranteed rights." Id. at 406. A plaintiff in an ADEA case, as
Sempier is here, should not be hamstrung by the district court in
limiting his discovery. In substituting a "Bill of Particulars"
for those means of discovery authorized by the Federal Rules of
Civil Procedure, the district court here far exceeded the
outermost limits on its discretion.
Since 1938, civil discovery has been an attorney-
initiated, attorney-focused procedure. The vast majority of
federal discovery tools operate, when used properly, almost
entirely without the court's involvement. See Fed. R. Civ. P.
26(f) (requiring the parties to devise and submit a discovery
plan); Fed. R. Civ. P. 30 ("[A] party may take the testimony of
any person, including a party, by deposition upon oral
examination without leave of court."); Fed. R. Civ. P. 34(b)
(production of documents); cf. Fed. R. Civ. P. 35 (providing for
physical examinations only by leave of the court); see also
William Schwartzer, The Federal Rules, the Adversary Process, and
Discovery Reform, 50 U. Pitt. L. Rev. 703, 714-16 (1989).
Indeed under the recent amendments to Federal Rule of
Civil Procedure 26(a), which became effective December 1, 1993 in
the District of New Jersey, a party must provide discovery
"without waiting [for] a discovery request." Under this scheme,
when civil litigation proceeds smoothly, the parties conduct
discovery with minimal interference from and minimal appeal to
the court. Through the discovery process, even before the
amendments became effective, the attorneys obtain answers to
questions that they feel are relevant to the issues if not
determinative of the issues. 8A Charles Allen Wright & Arthur P.
Miller, Federal Practice and Procedure § 2162 (1970). Nowhere in
the process is the district court authorized to initiate its own
questioning or to seek documents for itself. See John H.
Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L.
Rev. 823, 827-30 (1985) (noting the difference between civil law
procedure in which judges initiate the investigation and common
law procedure in which the parties conduct the investigation).
When the parties stray from this course, Rule 37
provides the court with tools to give the litigants new and
proper bearings. A court may compel answers to interrogatories
or deposition questions, compel the production of documents, or
conversely, grant protective orders. Fed. R. Civ. P. 37; Fed. R.
Civ. P. 26(b)(5)(c). If these measures fail, a court may order
facts established, forbid the introduction of evidence, strike
the pleadings, file a default judgment, dismiss the action, or
hold a party in contempt of court. Fed. R. Civ. P. 37(b); see
also National Hockey League v. Metropolitan Hockey Club, Inc.,
427 U.S. 639, 642 (1976) (upholding dismissal of a claim for
discovery violations); Quinter v. Volkswagen of America, 676 F.2d
969 (3d Cir. 1982) (affirming an order holding a party in
contempt for violation of discovery procedures). However, none
of the weapons in this formidable arsenal include the wholesale
substitution of court-engineered discovery.
The district court was evidently not content with the
contents of its discovery arsenal. Rather, it abandoned the
structure and command of the Rules to revive a procedural device
abandoned in civil practice forty-five years ago. See Singer
Manufacturing Co. v. Axelrod, 16 F.R.D. 460, 461 (S.D.N.Y. 1954)
(noting the elimination of the "Bill of Particulars" in favor of
interrogatories in 1948); Wright & Miller, supra § 2167 (1970 &
supp. 1994) (stating that Fed. R. Civ. P. 33 replaced the "Bill
of Particulars" in equity in 1948 without lament). Although
still used in criminal matters, a "Bill of Particulars" has not
graced the shores of federal civil discovery since the 1950s. 8
James Wm. Moore, Moore's Federal Practice ¶ 7.06[1] (2d ed.
1994). Even in criminal matters, a "Bill of Particulars" is not
generally considered a discovery device. Id. (citing among other
cases United States v. Smith, 776 F.2d 1104, 1111 (3d Cir.
1985)). In this case, it was not only an unwelcome and
inappropriate incursion by the district court into the parties'
dispute, but it severely trenched upon the Rules of Civil
Procedure which have been crafted to provide information as to
matters relevant to the issues disputed. Fed. R. Civ. P.
26(d)(1).
Sempier had served his interrogatories in compliance
with Federal Rule of Civil Procedure 33. The Rule provides,
"[e]ach interrogatory shall be answered separately and fully in
writing under oath, unless it is objected to, in which event the
objecting party shall state the reasons for objection and shall
answer to the extent the interrogatory is not objectionable."
J & H believed the interrogatories were objectionable and stated
its objections. Sempier sought to compel answers.
The court could have denied the discovery on the ground
that it was privileged, burdensome, duplicative, or otherwise
outside of the scope of discovery. Fed. R. Civ. P. 26(b). It
could have compelled answers and awarded attorney's fees and/or
sanctions. Fed. R. Civ. P. 37(b). It did none of these things
nor did it comply with its obligation to consider and rule upon
each interrogatory to which J & H objected. See Nestle Foods
Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 109-112
(D.N.J. 1990); Robbins v. Camden City Bd. of Educ., 105 F.R.D.
49, 57-60 (D.N.J. 1983). Rather than rule upon the objections,
the district court decided that "[the] Magistrate Judge . . .
provided a mechanism (bill of particulars) for further discovery
regarding the precise issue outlined in this Court's September 7,
1993 Order." App. 611.
The district court may have disliked its obligation to
examine each interrogatory and review the magistrate judge's
ruling. Regardless of its feelings, the district court, guided
only by its own discretion and determination of what is important
or relevant, could not rewrite a party's questions and in effect
serve its own set of interrogatories. When the court took upon
itself to author the questions being asked, it virtually became a
participant in the parties' controversy in a manner inconsistent
with fundamental conceptions of the role of a judge in our common
law system.
In this case, the district court reformulated Sempier's
interrogatories into four broad questions about Sempier's
performance. The magistrate judge reframed specific requests
pertaining to the reasons considered by J & H, and the reasons
upon which J & H actually relied to terminate Sempier, into a
vague question, "[w]hy were Plaintiff's job responsibilities
reassigned?" Pertinent and direct interrogatories, that were
propounded by Sempier, sought the dates of conversations
regarding Sempier's performance and the names of the participants
in those discussions. Those interrogatories were replaced by the
district court with a vague and general "Bill of Particulars."
Because the district court's questions were, with one exception,
general, nonspecific, and broad, the resulting answers, to the
extent that they answered the questions at all, were
uninformative and of little value. Sempier had good reason to
draft specific interrogatories and had a right to expect
correspondingly specific answers. The district court's
substitution of its own work product denied Sempier this
opportunity.
We have examined the Supplemental Bill of Particulars
(App. 766-772) which contains the questions framed by the
magistrate judge and the district court judge, and we have
examined closely J & H's answers. Those answers can best be
described as an attempt, if not to outwit, then to frustrate all
legitimate efforts to furnish information to an adversary.10
Moreover, whereas Federal Rule of Civil Procedure 33 provides
that interrogatories must be answered under oath and thus may be
evidentiary, there is no such provision in the Federal Rules of
10
. See note 9 supra.
Civil Procedure for a "Bill of Particulars." Indeed, there is no
provision at all for "Bills of Particulars" -- and for good
reason. As we have noted, "Bills of Particulars" were replaced
by the discovery rules of the Federal Rules of Civil Procedure.
Wright & Miller, supra § 2167.
The district court's action was unauthorized by the
Federal Rules of Civil Procedure and in violation of the
principles of our jurisprudence. The Federal Rules of Civil
Procedure, which must obtain Supreme Court and Congressional
approval, not only prescribe the procedures to be followed by
counsel, but they also prescribe the Rules under which the courts
operate. See Umbenhauer v. Woog, 969 F.2d 25, 32 (3d Cir. 1992)
("Neither we, the Department of State, nor the Administrative
Office of the United States Courts possess the authority to
circumvent, ignore or deviate from the Federal Rules of Civil
Procedure, which were approved by the Judicial Conference of the
United States, the Supreme Court of the United States, and
Congress.") By venturing so far outside the parameters set by
the Rules, the court abused its discretion.
Our discussion and holding here does not leave the
district court powerless to manage the discovery difficulties
presented by this and similar cases. On the contrary, the
district court has considerable authority and discretion by which
to resolve discovery disputes. Indeed, if discovery has reached
an impasse or a nonproductive stage either through counsel's
obstinacy, intransigence, or even incompetence, the district
court can always, through appropriate intervention, suggest the
proper manner in which questions should be asked and the answers
furnished. A district court's creativity in this respect is
unrestricted, although it cannot, of course, disregard the
commands of the Federal Rules of Civil Procedure or, as in this
case, substitute a "Bill of Particulars" for a party's relevant
discovery. It can, however, always give counsel guidance and
direction as to the manner in which discovery should proceed.
If, after an examination of a party's interrogatories,
the district court determines that the interrogatories are
inappropriate, the court can refuse to compel answers. If a
party is unable to draft satisfactory interrogatories after a
reasonable time for discovery has concluded, the court can limit
further discovery. If the court feels either party was acting in
bad faith, it can impose sanctions. Certainly, if a party,
without justification, refuses to answer interrogatories in the
manner required by Federal Rule of Civil Procedure 33, the court
can compel answers under threat of sanctions. Any or all of
these options could have been employed in this case. Any and all
of these options would have received substantial deference upon
review.
VII
We will reverse the summary judgment of the district
court dated March 9, 1994 and remand. On remand, the district
court is directed to vacate the magistrate judge's order of
August 7, 1993 and to vacate its own order of November 3, 1993
which approved and modified a "Bill of Particulars." The
district court is also directed to permit and schedule additional
appropriate and adequate discovery pursuant to the Federal Rules
of Civil Procedure so that further proceedings, including trial,
may be conducted consistent with the foregoing opinion.11
11
. The district court's order of March 9, 1994 dismissed Counts
Four through Six without prejudice to Sempier proceeding on those
counts in state court. Those counts involved state law contract
and corporate law causes of action. The record before us is
accordingly silent as to those matters. Nor do we know if those
claims are proceeding in state court. It will be for the
district court on remand to ascertain and resolve the status of
those claims.