Judson C. Brewer v. Quaker State Oil Refining Corporation Quaker State Corporation , 72 F.3d 326 ( 1995 )

OPINION OF THE COURT

COWEN, Circuit Judge.

Plaintiff-appellant Judson C. Brewer appeals the district court’s grant of summary judgment in favor of his employer, Quaker State Oil Refining Corporation and Quaker State Corporation (“Quaker State”), on Brewer’s Age Discrimination in Employment Act (“ADEA”) claim, 29 U.S.C. § 623 (1988), and the dismissal of his pendent state-law claim brought under Michigan’s anti-discrimination statute, the Elliott-Larsen Civil Rights Act, Mich.Comp.Laws §§ 37.2101-2804. Because the record reflects a genuine issue of material fact regarding whether Quaker State’s asserted nondiscriminatory reasons for discharging Brewer are pretextual, we will reverse the district court’s entry of summary judgment in favor of Quaker State and remand the matter for further proceedings.

I.

Brewer worked for Quaker State as a sales representative from 1968 until the time of his discharge in March 1992, at the age of fifty-three. He worked in the Pittsburgh office until it closed in 1989. During the course of his employment in Pittsburgh, Brewer was supervised by two different division managers, Bruce Drummond and Michael O’Donnell. During their respective tenures, both Drummond and O’Donnell encountered certain problems with Brewer’s performance. For example, Drummond stated that Brewer’s clients complained that they had run out of oil or had not seen their sales representative in some time. In January 1989, O’Donnell placed Brewer on a ninety-day probation for similar performance deficiencies, including customer complaints about running out of oil, poor follow-up with projects, inaccurate- and incomplete paperwork, short work days, and lack of organization. Shortly after Brewer completed his probationary period, he was transferred to the Detroit division.

District Manager Paul Pfauser supervised Brewer in Detroit. In 1990 Pfauser gave Brewer acceptable performance ratings, but criticized him for poor planning. Pfauser advised Brewer that he needed to work more closely with his client accounts and set higher standards for himself. At the end of 1990 Brewer received a sales bonus for exceeding the company’s sales quota for that year.

In May 1991, shortly before his second annual review under Pfauser’s supervision, Pfauser notified Brewer that various facets of his performance required improvement. Pfauser counseled Brewer to be more efficient, to follow-up with requests both from his customers and from management, and to improve the timeliness and completeness of his sales reports. In his formal evaluation in' June 1991, Brewer received marginal or unacceptable ratings in all categories.

In August 1991, Brewer was placed on a ninety-day probation for his performance deficiencies. At that time, Pfauser criticized Brewer for performing poorly in the areas of client communications and organization. In December 1991, Brewer again exceeded the company’s sales quota and received another bonus. Brewer was the only salesperson in the Detroit region to receive such a bonus for both 1990 and 1991.

Brewer’s personnel file for the years prior to 1990 was lost. However, it is not disputed that Brewer’s mean performance evaluation rating from 1987 through 1990 was “3” out of a possible “5”, which translates into “competent” by Quaker State’s performance standards. Factoring in his evaluation for 1991, Brewer’s overall average for 1987 to 1991 was 2.9.

At the end of the ninety-day probation, Pfauser repeated his concerns that Brewer was spending too little time in his territory and not adequately communicating with customers. At this time Brewer’s probationary period was extended for an additional sixty days. On February 18, 1992, Pfauser wrote á memorandum to Brewer documenting performance problems, including Brewer’s mis-processing orders, and failure to advise his accounts of credit problems.

Brewer challenged Pfauser’s appraisal, commenting that his performance had improved. Brewer also has claimed that Pfau-ser was “nitpicking,” and that the problems were the result of petty misunderstandings, or were not really problems at all. Nonetheless, in the days that followed the February 18, 1992 memorandum, Pfauser sought and obtained approval to terminate Brewer’s employment. Brewer was discharged on March 9,1992, and this lawsuit ensued. The district court granted summary judgment against Brewer.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291 to review the final order of the district court, which exercised jurisdiction under 29 U.S.C. § 626(c)(1), 28 U.S.C. §§ 1331 and 1343(a)(4), and supplemental jurisdiction pursuant to 28 U.S.C. § 1367.

On review of a district court’s grant of summary judgment, we apply the same test the district court should have applied initially. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, — U.S. -, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). Summary judgment is appropriate only when the admissible evidence fails to demonstrate a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party’s evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Thereafter, the nonmov-ing party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In reviewing the record, the court must give the nonmoving party the benefit of all reasonable inferences. Sempier, 45 F.3d at 727; Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413 (3d Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991).

III.

The ADEA prohibits age discrimination in employment against any person over age forty. 29 U.S.C. § 623(a)(1). Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under ADEA. See, e.g., Maxfield v. Sinclair Int’l, 766 F.2d 788, 791 (3d Cir.1985), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1986). We follow the evidentiary framework first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), subsequently refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and recently clarified in St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).

In order to establish a prima facie case, Brewer must show that he: (1) is over 40; (2) is qualified for the position in question; (3) suffered an adverse employment decision; and (4) was replaced by a sufficiently younger person to permit an inference of age discrimination. Sempier v. Johnson & Higgins, 45 F.3d 724, 727 (3d Cir.), cert. denied, — U.S. -, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995). This showing creates a presumption of age discrimination that the employer can rebut by stating a legitimate nondiscriminatory reason for the adverse employment decision. Hicks, — U.S. at -, 113 S.Ct. at 2747; Sempier, 45 F.3d at 728. The plaintiff then has the opportunity to demonstrate that the employer’s stated reason was not its true reason, but merely a pretext for discrimination. Hicks, — U.S. at -, 113 S.Ct. at 2747; Sempier, 45 F.3d at 728.

A.

The district court held that the disposition of this case turned on the third stage of the McDonnell Douglas analytical framework because Brewer had established a pri-ma facie case of age discrimination, and Quaker State had articulated non-discriminatory reasons for Brewer’s discharge. Brewer v. Quaker State Oil Ref. Corp., 874 F.Supp. 672, 681-82 (W.D.Pa.1995). We agree with the district court’s analysis up to this point. It is undisputed that Brewer is a member of a protected class, was discharged by Quaker State, and was replaced by an individual not within the protected class. Moreover, Brewer was qualified for the position of sales representative. He- worked as a Quaker State sales representative for twenty-three years. During his last five years on the job, he received overall evaluations that translated into “competent” by Quaker State’s performance standards. Accordingly, Brewer has established a prima facie case of age discrimination.

Quaker State has also established legitimate, non-discriminatory reasons for terminating Brewer’s employment. Pfauser documented continuous performance problems, including poor follow-up on customer requests, poor communications with clients and with management, too little time spent in his territory, and late and ambiguous sales reports.

B.

We must next determine whether Brewer has met his burden of demonstrating that a factfinder could find that the allegedly legitimate reasons proffered for his discharge were only a pretext, for discrimination in order to survive Quaker State’s motion for summary judgment. To defeat a summary judgment motion based on a defendant’s proffer of nondiscriminatory reasons, a plaintiff who has made a •prima facie showing of discrimination need point to some evidence, direct or circumstantial, from which a factfin-der could reasonably either: (1) disbelieve the employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action. Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d Cir.1994). The factfinder may infer from the combination of the plaintiffs prima facie case, as well as its own rejection of the employer’s proffered nondiseriminatory reason, that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reason. See Hicks, — U.S. at -, 113 S.Ct. at 2749. Thus, if the plaintiff has pointed to evidence sufficient to discredit the defendant’s proffered reason, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case. Fuentes, 32 F.3d at 764.

To discredit the employer’s proffered reason, the plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether a discriminatory animus motivated the employer, not whether the employer is “wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765 (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993)). Rather, the nonmoving plaintiff must demonstrate such “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proffered legitimate reason for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for [the asserted] non-discriminatory reasons.” Fuentes, 32 F.3d at 765 (citations and internal quotations omitted.). See Ezold, 983 F.2d at 527 (“plaintiff has the burden of casting doubt on an employer’s articulated reasons for an employment decision”) (quoting Billet v. CIGNA Corp., 940 F.2d 812, 828 (3d Cir.1991)).

Brewer has challenged Quaker State’s asserted reasons for his discharge. First, Brewer’s own testimony disputed the significance of the problems raised by Pfau-ser. While Brewer challenged the extent and degree of his deficiencies rather than their existence, Brewer testified to specific examples of Pfauser’s errant or misplaced criticisms. Such evidence amounts to more than his subjective opinion of his performance. Second, Brewer provided evidence that he had succeeded in selling oil for nearly twenty-five years in the employ of Quaker State, and for the last five years, he was rated “fully acceptable” by Quaker State in his evaluations. Third, Brewer provided evidence that he received a bonus for surpassing his sales quota in 1990 and 1991, and was the only salesperson in the Detroit region to exceed his or hei: sales quota for those years.

The district court discounted this evidence, reasoning that Brewer cannot pick and choose which employment standard he will meet. The district court reasoned that “although plaintiffs average numerical rating and sales bonus may be somewhat contradictory with the fact of his termination, the court does not believe that they give rise to such “weaknesses, implausibilities, inconsistencies, incoherences, or contradictions’ in Quaker State’s explanation that a reasonable factfinder could rationally find the explanation unworthy of credence.” Brewer, 874 F.Supp. at 682. We disagree that the “somewhat contradictory” evidence does not demonstrate a triable issue of fact. On summary judgment, it is not the court’s role to weigh the disputed evidence and decide which is more probative. Sempier, 45 F.3d at 731. The fact that Brewer received a bonus three months before he was fired and was the only sales representative in the Detroit region who received such a bonus is contradictory to Quaker State’s admission that the most important standard of job performance is sales.

Quaker State’s Executive Vice President of Sales, William Marshall, stated that sales volume is “extremely important in evaluating a salesperson,” and represents “the best simple measure” of a salesperson’s performance. App. at 200, 203. Quaker State’s counsel also acknowledged this fact at oral argument before this court. Indeed, the volume of sales may always be the primary measure of a salesperson’s performance. See Kiliszewski v. Overnite Transp. Co., 818 F.Supp. 128, 132 (W.D.Pa.1993) (evidence that a person performed well in the traditional role of salesperson precluded summary judgment despite employer’s claim that the plaintiff suffered from efficient time-management deficiencies). To segregate job performance into the neat categories of sales and organizational skills defies the reality of the role of a salesperson in a company.

We recognized that an employer may have any reason or no reason for discharging an employee so long as it is not a discriminatory reason.

[W]e do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior.

McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th Cir.1992) (citations and internal quotations omitted). An employer may have a legitimate reason for firing an employee that has nothing to do with that employee’s performance of the core functions of his or her job. Nonetheless, our role is to determine whether a factfinder could reasonably find that the employer’s stated reason is unworthy of credence. In this case, Brewer’s deficiencies pale beside his consistently good sales performance, inexplicably unaccounted for in his supervisor’s negative evaluations. A factfinder could find it implausible that Quaker State would have fired Brewer for such deficiencies when he was successful in the sole area identified by Quaker State’s own performance incentive program — sales.

In Ezold, 983 F.2d at 509, we held that a district court had erred in finding that the employer’s explanation for denying a promotion to the plaintiff was pretextual. The employer claimed that it had denied partnership to the plaintiff because of her deficiencies in the area of legal analysis. There was no question that the plaintiff suffered from serious shortfalls in that area, although she had demonstrated success in other areas of the job. It was also clear that the employer considered legal analysis to be the critical category of performance review. The district court had questioned the wisdom of the employer’s partnership standards, and we held that “[i]t was not for the district court to determine that Ezold’s skills in areas other than legal analysis made her sufficiently qualified for admission to the partnership.” Id. at 528. This ease is distinguishable on its facts. In Ezold, the plaintiff suffered deficiencies in the one area deemed critical by the employer. Here, in contrast, Brewer had some problems in a few aspects of the job. Yet, he performed well in the one area deemed by Quaker State to merit a performance bonus. This raises genuine issues about the credence of Quaker State’s performance-based explanation.

It is also questionable why a company would fire the only salesperson to receive consecutive annual bonuses in response to the same organizational deficiencies that the employer had tacitly accepted for over two decades. During the twenty-three years that Brewer worked for Quaker State, he consistently sold a high volume of oil despite the repeated criticisms of other aspects of his job performance. It was not until late in his career that Quaker State turned the criticisms of Brewer’s performance into the basis for adverse action. A reasonable factfinder could view Quaker State’s belated reliance on these criticisms as evidence that tends to show pretext. See Levin v. Analysis & Technology, Inc., 960 F.2d 314, 317 (2d Cir.1992) (employer’s claim that plaintiff was terminated because of his “poor attitude” did not provide a basis for summary judgment where there was evidence that plaintiff’s “irascible nature had for many years been accepted by his co-workers and superiors”); Giacoletto v. Amax Zinc Co., 954 F.2d 424, 426-27 (7th Cir.1992) (evidence supported a finding of pretext despite employer’s claim that the plaintiff had “poor interpersonal skills as a manager” where the plaintiff “had been kept on as a supervisor for 14 years despite his abrasive personality and because of his ability to produce”); Blalock v. Metals Trades, Inc., 775 F.2d 703, 709 (6th Cir.1985) (fact that the employer had legitimate concerns with the plaintiffs performance at the time of his discharge was not determinative where that “same level of performance” had been acceptable to the employer until its consideration of a protected criterion). Brewer’s testimony disputing the significance of the alleged problems, his twenty-three years of consistently good sales performance and recent merit bonuses cast sufficient doubt on Quaker State’s contention that Brewer was discharged because of poor job performance in areas which the company had long overlooked or tolerated.¹

Brewer has also provided evidence that in August of 1991, Wanda Weaver, Quaker State’s personnel manager, wrote a memorandum to Pfauser summarking Brewer’s performance for the last fifteen years. In the memorandum Weaver noted that “Judd is 53 years old, which presents another problem.” App. at 24. The district court determined that this statement merely indicated Weaver’s awareness that, if terminated, Brewer may file an age discrimination suit. Although the jury may very well conclude that this remark merely reflects an awareness of Quaker State’s legal obligations, the statement is also subject to competing interpretations. Another reasonable interpretation is that Brewer’s age was a “problem” for Quaker State. On summary judgment, we must draw all reasonable inferences in favor of the nonmoving party. Drawing the inference in Brewer’s favor, Weaver’s statement tends to show a discriminatory animus. In viewing the record as a whole, as we must, we conclude that the statement is probative, and should be submitted for a jury’s consideration.

Brewer next produced evidence that in March 1990, Jack Corn, Chief Executive Officer of Quaker State, discussed two new executives in the company newsletter. He stated, “two of our star young men in their mid-40s. That age group is our future.” App. at 26-27. Brewer asserts that this remark is circumstantial evidence of Quaker State’s preference for younger workers. The district court determined that Corn’s statement was a “stray remark, unconnected with and remote from the decision-making process which resulted in Brewer’s discharge.” Brewer, 874 F.Supp. at 683.

We have held that 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 the decision. Ezold, 983 F.2d at 545. We agree with the district court that the Corn statement is a “stray remark” made by a non-decision-maker and temporally remote from the decision to terminate Brewer. The comment was made almost two years before Brewer’s March 1992 termination. Brewer’s supervisor testified that he could not recall ever seeing or hearing Corn’s statement, and there is no evidence of a causal link between Corn’s statement and Brewer’s termination.

Though the Corn statement should not be given significant or commanding weight, at trial, it may provide some relevant evidence of discrimination. We have held that a supervisor’s statement about the employer’s employment practices or managerial policy is relevant to show the corporate culture in which a company makes its employment decision, and may be used to build a circumstantial case of discrimination. See Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir.1995) (discriminatory statements by nondeci-sionmakers properly used to build a circumstantial case of discrimination); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir.1989) (same); see also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir.1993) (court may consider as circumstantial evidence the atmosphere in which the company made its employment decisions).

Corn’s statement may be used as evidence of managerial policy. The remark was not an off-hand comment made by a low-level supervisor. Rather, the comment was made by the Chief Executive Officer in a written newsletter. “When a major company executive speaks, ‘everybody listens’ in the corporate hierarchy, and when the executive’s comments prove to be disadvantageous to a company’s subsequent litigation posture, it cannot compartmentalize this executive as if he had nothing more to do with company policy than the janitor or watchman.” Lock-hart, 879 F.2d at 54.

Quaker State claims that Corn’s statement should not be considered evidence at all because it is too innocuous. The statement that the mid-40’s age group is the company’s future may indeed be considered a truism— the future of any business lies with its relatively young employees. See, e.g., Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir.1980) (statement that “future lay in the employer’s young Ph.D’s” was a truism, and not evidence of age discrimination.). Quaker State further asserts that praising the youth does not indicate bias against more mature workers. See, e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 826 (1st Cir.1991). cert. denied, 504 U.S. 985, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). While a factfinder could find Corn’s comment too abstract to evince age discrimination, it may also be considered by the jury as evidence of the corporate culture in which the employment decision to discharge Brewer was made, and circumstantial evidence of age discrimination. We conclude that the Corn statement is relevant evidence of age discrimination.

IV.

Brewer next argues that the district court erred in refusing to draw an adverse inference from Quaker State’s inability to produce Brewer’s pre-1990 personnel file. The general principles concerning the inferences to be drawn from the loss or destruction of documents are well established. When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir.1958).

For the rule to apply, it is essential that the evidence in question be within the party’s control. Gumbs, 718 F.2d at 96. Further, it must appear that there has been an actual suppression or withholding of the evidence. No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for. See generally 31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 (“Such a presumption or inference arises, however, only when the spoilation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.”).

The district court found that the file was lost in connection with the death of Quaker State’s in-house attorney, and was not destroyed intentionally. Quaker State’s in-house attorney died of a terminal illness after he took possession of the file. Quaker State avers that it has continued to search for the file, but to no avail. We cannot say the district court applied the incorrect legal standdrd, nor were its factual findings clearly erroneous. The destruction or failure to produce the record could have been due to many reasons unrelated to the lawsuit. See, e.g., Rogers v. Exxon Research & Eng’g Co., 550 F.2d 834, 843 (3d Cir.1977) (refusing to draw an adverse inference where destruction of a diary could have been unrelated to the lawsuit), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). The district court properly refused to draw an adverse inference.

V.

Brewer has also brought an age discrimination claim under the Michigan Civil Rights Act, Mich.Comp.Laws §§ 37.2101-2804. The district court held that Brewer failed to establish a prima facie case on his state law claim because he provided no evidence that Pfauser, or any other decisionmaker at Quaker State, was predisposed to discriminate against Brewer on the basis of age. Brewer, 874 F.Supp. at 687.

The evidentiary burdens for proceeding on an age discrimination claim under the Elliotb-Larsen Civil Rights Act are the same as those used in ADEA eases. McDonald v. Union Camp Corp., 898 F.2d 1155, 1159 (6th Cir.1990). However, in contrast to federal law, under Michigan law a plaintiff may establish a prima facie case by demonstrating that: (1) he is a member of the affected class; (2) that some adverse employment action was taken against him; (3) that the person responsible for this adverse action was predisposed to discriminate against persons in the affected class; and (4) that the person responsible actually acted on this predisposition to plaintiffs detriment. Pitts v. Michael Miller Car Rental, 942 F.2d 1067, 1070 n. 1 (6th Cir.1991).

A plaintiff may also establish a prima facie case under Michigan law using the traditional federal law standard set forth in McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824.² The McDonnell Douglas standard has been adopted by the Michigan Supreme Court. McDonald v. Union Camp Corp., 898 F.2d 1155, 1159-60 (6th Cir.1990); Matras v. Amoco Oil Co., 424 Mich. 675, 385 N.W.2d 586, 590 (1986). Therefore, Michigan law provides that establishing a prima facie case of age discrimination varies with differing factual situations, and the standard that best fits the factual allegations should be applied. Matras, 385 N.W.2d at 590; Lytle v. Malady, 209 Mich.App. 179, 530 N.W.2d 135, 140 (1995).

The district court erred in applying only the prima facie standard set forth in Pitts, 942 F.2d at 1070, and not the McDonnell Douglas standard, which more closely fits the facts of this case. Accordingly, the district court’s entry of summary judgment on the state law claim will be reversed for the same reasons that we will reverse the summary judgment entered on the ADEA claim.

1 . The dissent states that Brewer has “done nothing to rebut” Quaker State's proffered non-sales reasons for firing him. Dissent at 337. The dissent has overlooked evidence of Brewer’s testimony in which he related specific examples of his supervisor's errant or misplaced criticisms. Such evidence amounts to more than his subjective opinion of his job performance. Of course. unrefuted evidence was also presented that Brewer's past performance for twenty years was identical to that for which he was fired. It was not until late in his career that the criticisms of Brewer's performance were turned into reasons for his termination. This evidence goes directly to discrediting Quaker State's non-sales related reasons for firing Brewer.

2 . A prima facie case as applied in the age discrimination context requires a showing that the plaintiff: (1) was a member of a protected class; (2) was subjected to adverse employment action; (3) was qualified for the position; and (4) was replaced by a younger person.