Bittel v. Pfizer, Inc.

FILED
United States Court of Appeals
Tenth Circuit
January 9, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GENE BITTEL,
Plaintiff - Appellant, No. 07-3311
v. (D. Kansas)
PFIZER, INC., (D.C. No. 6:06-CV-01195-JTM)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.
Plaintiff-Appellant Gene Bittel was terminated from his employment with
Defendant-Appellee Pfizer, Inc. (“Pfizer”) in June 2005. Bittel alleges he was
terminated because of his age in violation of the Age Discrimination in
Employment Act (“ADEA”) and various Kansas employment discrimination
statutes. Pfizer contends it terminated Bittel because of multiple violations of
corporate policy which called his integrity into question and placed Pfizer at risk
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
of violating FDA regulations and Pharmaceutical Research and Manufacturers of
America (“PhRMA”) guidelines. While Bittel acknowledges he violated some
company policies, he claims the policy violations were pretextual and he was
actually terminated because of his age. In support, Bittel argues the following:
the company gave varying explanations of his policy violations and the reasons
for his termination; some of the allegations against him were exaggerated, untrue,
or based on nonexistent policies; his younger supervisor’s conduct demonstrated
age-based animus towards Bittel; and Pfizer’s regional workforce as a whole was
getting younger when he was terminated. The district court granted summary
judgment in favor of Pfizer, concluding Bittel had not created a genuine issue of
material fact as to pretext. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,
we affirm the district court. The evidence, viewed in the light most favorable to
Bittel, only casts doubt on some of the purported policy violations cited by Pfizer
and does not create a genuine issue of material fact as to pretext.
I. Background 1
1
The pertinent facts to this appeal are all taken from the Appendix filed by
Appellant Bittel, which contains the entirety of the record before the district court
when it ruled on the motion for summary judgment. Pfizer filed a Supplemental
Appendix with additional evidence that was not before the district court in order
to “correct and clarify factual misstatements” in Bittel’s opening brief. Because
summary judgment is proper in the absence of the additional evidence in the
Supplemental Appendix, Bittel’s motion to strike the Supplemental Appendix is
granted and the Supplemental Appendix is hereby stricken from the record.
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Bittel was born in 1955. He became a pharmaceutical sales representative
in 2001 with Pharmacia, Inc., and became a Pfizer employee in 2003 when Pfizer
acquired Pharmacia. His territory covered the northwestern third of Kansas. For
most of Bittel’s tenure at Pfizer, his supervisor was Bill Giltner. Giltner is twelve
years younger than Bittel. Bittel was the oldest sales representative on his sales
team.
In April 2004, Bittel received a regional sales award. Around the same
time, however, Giltner and Giltner’s supervisor, Kevin Malone, placed Bittel on
an immediate action plan, a remedial plan to correct perceived deficiencies in
Bittel’s selling ability. According to Bittel, Giltner was a demanding and
abrasive supervisor. In June 2004, Bittel claims Giltner told him he did not
deserve the sales award he had won. Giltner also allegedly told Bittel that Bittel
“had no respect for [Giltner] because [Bittel] was so much older than he.”
Shortly thereafter, Bittel was placed on a more drastic probationary plan, a
performance improvement plan, due to perceived sales deficiencies. Bittel claims
these probationary measures were imposed despite his achievement of nearly
100% of his sales goals for the year 2004. At the end of the year, Bittel was
taken off formal probationary status, but Giltner indicated Bittel should take part
in various organized promotional activities. Giltner also took extensive notes
regarding Bittel’s job performance and perceived deficiencies, including such
things as his dress and language at company meetings. Giltner took more notes
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on Bittel than he did on any other employee, although he took notes on thirty to
forty percent of his employees. Bittel testified Giltner’s managerial style drove
another employee to quit. A coworker testified Giltner was demanding of
everybody.
Bittel claims he was required to host a teleconference for health care
practitioners in early 2005. He made arrangements to co-host a teleconference
with another representative, but was told by Giltner he would not be considered
the “host.” On short notice, Bittel arranged a separate teleconference, but on the
day of the teleconference he learned the facility he had reserved lacked a
telephone line. Improvising, he instead passed out printed copies of slides which
would have been presented had the teleconference taken place and asked the
doctors to listen to the teleconference on their own time. Pfizer claims this was a
violation of the company’s policies, which closely regulate the form and content
of information disseminated to health care practitioners. 2
This violation was reported to Giltner by another sales representative who
had been present at the meeting. Without mentioning the violation, Giltner later
emailed all of the sales representatives and requested a list of the teleconferences
they had hosted so he could award them points as part of a bonus program called
ACE. Bittel responded and claimed credit for the botched teleconference. Giltner
2
If the information is not accurate or even-handed for example, Pfizer
could violate FDA regulations and PhRMA guidelines.
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awarded Bittel the ACE points even though he had already been informed that the
teleconference had violated company policy.
Concerned about the teleconference and other perceived violations of
company policy, Giltner and Malone arranged a meeting with Bittel. Bittel claims
he was not told the purpose of the meeting. Bittel also claims Giltner told him he
did not plan on attending the meeting. When Bittel arrived, however, Giltner was
present. Bittel says this caused him to lose his composure. Bittel was questioned
about the teleconference and told several different versions of what went on
before telling the truth. During the meeting, Bittel also admitted to copying the
teleconference onto a personal CD, which he was told was a violation of Pfizer
policy. At the end of the meeting, he claims he was never given a warning or told
he was no longer in good standing. After the meeting Malone recommended
firing Bittel and drafted a “final warning letter,” but the letter was never sent to
Bittel. The following day, Giltner called Bittel on two separate occasions. First,
Giltner told Bittel he would not receive a merit pay increase based upon his 2004
sales. Second, Giltner told Bittel his expense report was overdue. Bittel believes
the calls were timed to harass him.
Just over a week after the meeting, Bittel organized, with two other sales
representatives, a “journal club,” an informal periodic meeting where medical
practitioners present recent medical developments to each other. Pharmaceutical
representatives sometimes sponsor these gatherings, and Pfizer policy allows for
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the payment of honoraria to the speakers as long as the audience includes
practitioners who are not co-workers of the speaker. Audience members are not
entitled to payment. For this event, the sales representatives invited practitioners
from multiple clinics, but the only ones who actually attended were co-workers of
the speaker. The representatives paid the speaker anyway, and also paid the
audience members. Bittel informed Giltner of the event after it had taken place.
Giltner reported the incident to Pfizer’s corporate compliance attorneys, but they
recommended no discipline of the participating representatives because the policy
had evidently generated confusion. The other sales representatives who put on
the event were younger than Bittel.
Another Pfizer promotional activity is the awarding of grants for
educational events, including continuing medical education seminars. The sales
representatives complete grant applications and the applications are submitted to
Pfizer for approval. The approval process takes some time, and Bittel claims
doctors are not always able to clear their schedules far enough in advance to
allow Pfizer to process the grant applications before the event takes place. One
solution to this problem is to place a false date on the grant application—if the
event is really going to take place in two weeks, the representative indicates it
will take place in four weeks in order to allow sufficient time for approval.
Bittel claims forward-dating was common practice, although after he was
terminated he admitted it was a violation of PhRMA guidelines. Pfizer points out
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Bittel was unable to provide the name of a single other representative who
engaged in forward-dating. Alison Combs, who worked at a foundation which
requested grants from Pfizer, told Bittel she had forward-dated grant applications
for other sales representatives, but she could not remember who they were. Bittel
also presented e-mails he sent to Giltner which Bittel claims prove Giltner was
aware of forward-dating. The e-mails show that Giltner approved a grant
application for an event with one date, and then approved an agenda for the event
which indicated it would take place on an earlier date.
In May 2005, Bittel informed Giltner he had submitted a forward-dated
grant application and wanted to know if forward-dating was still permitted.
Giltner directed Bittel to contact the person who handled grant applications. He
did so, and was told he would be contacted if there was a problem resolving the
issue. He never heard anything else regarding the matter. In fact, the matter had
been referred to Pfizer’s attorneys for review.
On June 30, 2005, Bittel was terminated. A successor was not immediately
hired because a hiring freeze was in effect, but five co-workers, all of whom were
younger than Bittel, picked up Bittel’s workload. Another sales representative
significantly younger than Bittel was hired in October of 2005 and served Bittel’s
former territory.
In the sixteen-month period following Bittel’s termination, Pfizer hired or
re-hired twenty new sales representatives in Kansas, only two of whom were over
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the age of forty. By contrast, it terminated nineteen people over the same period,
five of whom were over the age of forty. Over a longer period from January 1,
2004, through September 2006, eleven of thirty-one terminations were people
over the age of forty, with two additional thirty-nine year-olds fired during that
period.
Following his termination, Bittel brought suit in the United States District
Court for the District of Kansas against Pfizer pursuant to the ADEA, 29 U.S.C.
§§ 621-634, the Kansas Acts Against Discrimination, Kan. Stat. Ann. §§ 44-1001to -1044, and the Kansas Age Discrimination in Employment Act, Kan. Stat. Ann.
§§ 44-1111 to -1121. Pfizer moved for summary judgment on all three statutory
claims. Analyzing the ADEA claim and the state law claims in the same manner, 3
the district court granted the motion for summary judgment. The district court
concluded Bittel had made out a prima facie case of age discrimination but had
failed to prove, under the McDonnell Douglas burden-shifting framework,
Pfizer’s proffered reasons for termination were pretextual. Bittel appeals this
ruling.
II. Discussion
3
Kansas courts look to federal standards in evaluating state law employment
discrimination claims. Rebarchek v. Farmers Coop. Elevator, 35 P.3d 892, 898
(Kan. 2001); Beech Aircraft Corp. v. Kan. Human Rights Comm’n, 864 P.2d 1148,
1151-53 (Kan. 1993).
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This court reviews the district court’s grant of summary judgment de novo,
applying the same standard applied by the district court. Sanders v. Sw. Bell Tel.,
L.P., 544 F.3d 1101, 1104 (10th Cir. 2008). Summary judgment is appropriate
when there is no 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 applying this standard,
this court views the evidence and draws reasonable inferences in the light most
favorable to the nonmoving party. Sanders, 544 F.3d at 1105.
The ADEA protects employees over the age of forty from being discharged
or otherwise subject to discrimination because of their age. 29 U.S.C.
§§ 623(a)(1), 631(a). The employee’s age must be a determining factor in the
employer’s decision. Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th Cir.
1996). In certain cases, such as when written policies are being challenged,
plaintiffs can prove age discrimination directly. Sanders, 544 F.3d at 1105. In
other instances, plaintiffs must rely upon indirect or circumstantial evidence of
discrimination. Id. Such claims of indirect discrimination are evaluated under
the McDonnell Douglas burden-shifting framework. Id.; see also McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under the McDonnell
Douglas framework, a plaintiff must initially make out a prima facie case of
employment discrimination. Hinds v. Spring/United Mgmt. Co., 523 F.3d 1187,
1195 (10th Cir. 2008). If the plaintiff presents a prima facie case, the employer
then has the burden of showing a legitimate, non-discriminatory reason for the
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adverse employment action. Id. If the employer makes this showing, the burden
shifts to the plaintiff to prove the proffered justification was pretextual. Id.Here, Bittel acknowledges he has only indirect evidence of discrimination, and
therefore the McDonnell Douglas analysis applies.
A. Prima Facie Case
The initial burden of proving a prima facie case under McDonnell Douglas
is not onerous. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Additionally, due to the wide range of forms discrimination can take in the
employment context, the precise elements of a prima facie case vary from one
setting to the next. Id. at 253 n.6. In this case, the parties agree the proper
elements of a prima facie case are: (1) the plaintiff was a member of the protected
age group at the time of discharge, (2) the plaintiff was doing satisfactory work,
(3) the plaintiff was discharged, and (4) the discharge occurred under
circumstances giving rise to an inference of discrimination. See Hysten v.
Burlington N. & Santa Fe Ry., 296 F.3d 1177, 1181 (10th Cir. 2002).
Bittel satisfies the first and third elements of the prima facie case, since his
age and the nature of the employment action are not at issue. Pfizer also
concedes that Bittel meets his prima facie burden for the second element with his
own declaration that his work was satisfactory. The only remaining issue,
therefore, is whether Bittel has met the fourth element. Pfizer argues Bittel has
failed to prove this element because the only evidence he has to support a claim
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of discrimination are the events leading up to his termination, a “stray remark,”
and the more favorable treatment of non-similarly situated employees.
A plaintiff can prove the fourth prong of the prima facie case by showing,
inter alia, “preferential treatment given to employees outside the protected class.”
Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005) (quotation omitted). Bittel
has presented evidence sufficient to meet his burden at the prima facie stage.
Without considering the proffered reasons for Bittel’s discharge, and considering
the evidence in the light most favorable to Bittel, he was treated more harshly
than younger sales representatives for what appeared to him to be similar policy
violations. Additionally, after Bittel was terminated, his job duties were assumed
by younger employees. These facts are enough for Bittel to present a prima facie
case of age discrimination.
Pfizer has proffered a nondiscriminatory reason for terminating Bittel: it
claims his repeated policy violations called his integrity into question and placed
Pfizer at risk. Bittel concedes this is sufficient to meet Pfizer’s burden at the
second stage. At the third stage of the McDonnell Douglas analysis, Bittel must
present evidence to raise a genuine issue as to whether this proffered reason was
pretext for age discrimination. Trujillo v. PacifiCorp, 524 F.3d 1149, 1158 (10th
Cir. 2008). Bittel may prove pretext by presenting evidence showing “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons” that a jury could infer the employer
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actually acted out of a discriminatory motive. Bryant v. Farmers Ins. Exch., 432
F.3d 1114, 1125 (10th Cir. 2005) (quotation omitted). To determine whether the
plaintiff’s burden has been met, this court must consider all of the plaintiff’s
evidence as a whole. Annett v. Univ. of Kan., 371 F.3d 1233, 1241 (10th Cir.
2004).
Bittel presents several reasons why Pfizer’s proffered reason was pretext
for age discrimination. First, Bittel contends Pfizer’s explanations of his policy
violations and its stated reasons for his termination have been inconsistent, and,
moreover, its use of subjective criteria suggests pretext. Second, he argues Pfizer
has exaggerated or fabricated policy violations. Third, he contends his
supervisor’s pattern of treatment suggests age animus. Fourth, he presents
statistical data regarding the ages of individuals hired and fired by Pfizer in
Kansas, which he claims indicate age bias.
1. Inconsistent Explanation of Policy Violations and Reasons for
Termination.
Bittel’s first contention is Pfizer’s explanations of his policy violations and
stated reasons for termination have shifted over time. This, he argues,
demonstrates Pfizer’s stated rationale for terminating him was pretextual. Bryant,
432 F.3d at 1125. To show the explanations of the policy violations shifted over
time, Bittel points to statements by Pfizer personnel that he was not disciplined
for any of the policy violations cited as grounds for his termination. Bittel also
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points to a supposed inconsistency in the testimony of Malone, the regional
manager, regarding the reason for his termination. At one point, Malone testified
Bittel was discharged because the totality of his policy violations created an
integrity issue. At another point Malone testified Bittel was terminated because
of the journal club and forward-dating incidents. Moreover, Bittel argues,
integrity is a subjective criterion for evaluating employees, and the use of
subjective criteria can be evidence of pretext. Garrett v. Hewlett-Packard Co.,
305 F.3d 1210, 1217 (10th Cir. 2002). Finally, Bittel argues other employees
were not disciplined for the same or similar conduct.
As for the statements of Pfizer personnel that Bittel was not disciplined for
any of his individual policy violations, this is not strong evidence of pretext.
Regardless of the form of discipline taken for each violation, the evidence shows
each was treated as a potential policy violation when it occurred. After the
teleconference incident Bittel was summoned to a meeting in Denver, interrogated
about the incident, and told he had violated company policy. Similarly, the
journal club and forward-dating incidents were referred to Pfizer’s attorneys
shortly after they took place, indicating those events were treated as policy
violations when they occurred.
Malone’s testimony was not internally inconsistent regarding why Bittel
was terminated. Malone testified the journal club incident and the forward-dating
incident were the two offenses precipitating Pfizer’s decision to terminate Bittel’s
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employment after Pfizer had developed concerns about Bittel’s integrity due to
the teleconference incident. This testimony is wholly consistent with Malone’s
statement that Bittel was terminated because all of his policy violations suggested
he had integrity issues that could put Pfizer at risk. Furthermore, in this context,
Pfizer’s integrity determination was premised wholly upon Bittel’s
misrepresentations to Pfizer and his violation of objective corporate policies.
Therefore, Pfizer did not rely upon subjective criteria in deciding to terminate
Bittel and its integrity explanation is not probative of pretext.
Bittel’s evidence regarding disparate treatment also fails to demonstrate
pretext. As for the teleconference incident, Bittel was the instigator of the event.
He alone distributed unapproved materials, improperly requested ACE reward
points, and lied about the incident to his supervisors. He therefore was not
similarly situated to the other employees involved in the incident. Rivera v. City
& County of Denver, 365 F.3d 912, 924 (10th Cir. 2004) (holding that employers
may view dishonesty as more serious than other policy violations). As for the
journal club incident, even assuming he was similarly situated to the other
employees involved, the evidence established that all of the employees were
treated similarly following the incident since none of the employees were
disciplined. Regarding the forward-dated grant application, Bittel was unable to
discover a single other employee who had forward-dated a grant application, so
he could not present evidence that he was treated more harshly than similarly
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situated employees for that supposed violation. In summary, Bittel did not show
he was treated differently than other employees for similar actions, either because
the actions he engaged in were qualitatively different or because he simply lacks
evidence of disparate treatment.
2. Exaggerated or Falsified Policy Violations.
Bittel also argues Pfizer has exaggerated or falsified his supposed policy
violations. He attacks, in various ways, the journal club speaker fee policy, the
policy prohibiting sales representatives from using homemade promotional
materials (the “anti-homemades policy”), and the policy prohibiting forward-
dated grant applications. He argues the policies currently cited by Pfizer were
either nonexistent or ambiguous at the time he supposedly violated them,
demonstrating pretext.
As to the journal club policy and the anti-homemades policy, Bittel argues
they were confusing. He claims the journal club policy was unclear as to whether
speaker fees were permitted when medical personnel were invited from different
clinics but the only actual attendees were members of the speaker’s clinic. For
the anti-homemades policy, Bittel argues the written policy did not explicitly
prevent the electronic duplication of approved promotional materials.
Interpreting the evidence in the light most favorable to Bittel, we can assume for
the purposes of summary judgment that these policies were ambiguous to sales
representatives in Bittel’s position. Bittel’s interpretation of company policy,
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however, is irrelevant. Instead, the proper inquiry is whether Pfizer honestly
believed Bittel had violated its policy and acted in good faith upon that belief.
See Rivera, 365 F.3d at 924-25 (explaining that the relevant inquiry is whether an
employer acted in good faith upon honestly held beliefs). Bittel has not presented
any evidence to demonstrate Pfizer did not actually believe he had violated these
policies. Therefore, any ambiguity is not probative of pretext.
Next, Bittel claims the forward-dating policy was selectively enforced.
While Bittel acknowledges forward-dating of grant applications violates PhRMA
guidelines, he claims forward-dating was common practice because it was often
difficult to line up speakers far enough in advance to meet the grant approval time
frame. Interpreting the evidence in the light most favorable to Bittel, we will
assume sales representatives had previously forward-dated grant applications with
Giltner’s knowledge and tacit approval.
If falsifying the date of the grant application were the sole reason for
Bittel’s termination, then the inconsistency in applying the policy might create a
genuine issue as to pretext. See Spulak v. K Mart Corp., 894 F.2d 1150, 1155
(10th Cir. 1990). As the facts stand, however, this violation came shortly after a
string of other policy violations, including the improper distribution of slides at
the teleconference, the untruthful statements about what went on during the
teleconference, the duplication of the CD, the request for ACE reward points, and
the payments to the speaker and participants at the journal club. Even if a
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plaintiff casts doubt on one of an employer’s proffered explanations for the
discharge, an employer is still entitled to summary judgment unless the plaintiff
“casts substantial doubt on many of the employer’s multiple reasons [such that]
the jury could reasonably find the employer lacks credibility.” Tyler v. RE/MAX
Mountain States, Inc., 232 F.3d 808, 814 (10th Cir. 2000). Bittel has, at best, cast
doubt on whether he was treated consistently as to the forward-dating incident,
but he has not proven this justification was so false as to cast doubt on Pfizer’s
credibility. This evidence thus does not raise a genuine issue as to pretext
regarding the remaining policy violations.
3. Giltner’s Animus Towards Bittel.
Bittel also presented evidence regarding negative treatment by Giltner, his
supervisor. Bittel claims this treatment was so antagonistic it suggested
impermissible animus on Giltner’s part. Because Giltner was his supervisor and
involved in the decision-making process regarding his termination, Bittel argues
Giltner’s animosity is evidence of discrimination on the part of Pfizer.
Bittel offers several examples of Giltner’s animosity. The first example,
and in Bittel’s view the most significant, is Giltner’s remark that he believed
Bittel did not respect him because of his age. In order to establish pretext, Bittel
must show a nexus between the comment and the adverse employment action.
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1140 (10th Cir. 2000); Cone v.
Longmont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (“Isolated
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comments, unrelated to the challenged action, are insufficient to show
discriminatory animus in termination decisions.”). The comment by Giltner was
not a “stray remark” because it was directed towards Bittel and was made by an
individual involved in determining Bittel’s employment status. See Tomsic v.
State Farm Mut. Auto. Ins. Co., 85 F.3d 1472, 1479 (10th Cir. 1996). However,
the comment was made over a year before Bittel was terminated. Between the
comment and the termination, Bittel was placed on, and removed from, a
performance improvement plan, and Bittel also committed all of the policy
violations cited by Pfizer as grounds for his termination. Under these
circumstances, the comment is simply too far attenuated from Bittel’s termination
to be probative of Pfizer’s motivation. See Antonio v. Sygma Network, Inc., 458
F.3d 1177, 1184 (10th Cir. 2006) (holding that racial remark made by one person
involved in termination decision ten months before termination was too remote to
support a finding of pretext).
Bittel argues there was other evidence of Giltner’s animus. Bittel points to
evidence that Giltner took extensive notes on him and berated, harassed, and
humiliated him. Shortly after Bittel won his sales award, Giltner put him on an
immediate action plan and later a performance improvement plan, which Bittel
believes was an effort to force him out of the company. After Bittel was removed
from his performance improvement plan due to improved sales figures, Bittel
contends Giltner tried to force him out of the company by setting him up to
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commit the policy violations. Specifically, Bittel argues Giltner pressured him
into setting up the teleconference on short notice, solicited Bittel’s ACE points
request without telling Bittel he knew the teleconference had not occurred as
planned, ambushed Bittel at the post-teleconference meeting with Malone, forced
Bittel to put on a journal club, and did not inform Bittel he had violated Pfizer
policy by forward-dating the grant application. Taken together, Bittel contends
these actions constituted a concerted effort by Giltner to engineer Bittel’s
termination and replacement with a younger, more submissive employee.
Although Giltner took more notes on Bittel than he did on anyone else, he
took notes on thirty to forty percent of his team, and Bittel did not present
evidence that older employees were singled out for note-taking. On the contrary,
the evidence suggests Giltner was tough on all of his employees. While Bittel
argues his placement on a performance improvement plan is evidence of pretext,
at least one other individual under the age of forty was placed on a performance
improvement plan despite sales numbers as high as Bittel’s. The probative value
of Bittel’s placement on a performance improvement plan is also significantly
diluted by his subsequent removal from it. In summary, Bittel has scant evidence
that Giltner’s negativity towards him was motivated by age bias, and even less
evidence that this bias was the reason for his termination. See Honce v. Vigil, 1
F.3d 1085, 1089 n.1 (10th Cir. 1993) (stating tenant could not prove disparate
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treatment based upon sex when landlord was “equally nasty” to all tenants and
evicted tenants of both sexes).
Bittel’s theory about Giltner masterminding his termination by setting him
up for failure is sheer speculation. Bittel has failed to show Giltner made any
special demands upon him. The events Bittel was “forced” to host, namely the
teleconference and the journal club, were events that all sales representatives
under Giltner were expected to organize. Gilter asked all of his employees to
submit requests for ACE points. Assuming Giltner misled Bittel about his
presence at the meeting following the teleconference incident, it would be pure
conjecture to conclude Giltner did so with the intent to surprise Bittel into lying
about his activities. Bittel has not presented sufficient evidence to permit this
court to infer the existence of a concerted plan to induce Bittel’s policy
violations.
4. Statistical Evidence.
Bittel cites statistics regarding the ages of individuals who are hired and
fired at Pfizer and claims they demonstrate age bias. While this statistical
evidence may not be sufficient to raise an issue as to pretext when considered in
isolation, Bittel claims it should be viewed in conjunction with the rest of the
evidence as probative of pretext. In order to be probative of discrimination,
statistical evidence must “eliminate nondiscriminatory explanations for the
disparity.” Fallis v. Kerr-McGee Corp., 944 F.2d 743, 746 (10th Cir. 1991).
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Bittel’s statistics show that older workers were terminated at a greater rate
than they were hired, and younger workers were hired at a greater rate than they
were terminated. These statistics, however, do not show disparate treatment of
older workers because they control for neither the ages of applicants who were
not hired nor the ages of employees who were not terminated. If more young
people are applying for jobs, for example, Pfizer would probably hire them in
greater proportion than older people. Likewise, if Pfizer’s existing workforce is
skewed towards older workers, it would be unsurprising for more older employees
to be terminated. These are nondiscriminatory explanations for the statistical
variations that must be eliminated if the statistics are to be probative of
discrimination. Id. at 746-47. Because Bittel did not rule out these possible
explanations for the hiring and termination rates, his statistical data are not
probative of pretext.
5. Considering the Evidence as a Whole.
To survive summary judgment, Bittel need not raise a genuine issue as to
pretext with any individual piece of evidence. Rather, his claim survives if all of
his evidence, taken together, creates a genuine issue as to pretext. Annett, 371
F.3d at 1241. A great deal of the evidence Bittel presented, however, is not
probative of pretext. The only evidence that is probative of pretext is: the
ambiguity of the speaker fee and homemades policies, the past practice of
forward-dating grant applications, and Giltner misleading Bittel on several
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occasions. None of this evidence exculpates Bittel’s violation of the
teleconference policy, his untrue statements when asked about the teleconference,
his improper request for ACE points, or his improper payments to non-speakers at
the journal club. Bittel was terminated shortly after he violated a series of Pfizer
policies, some of which Pfizer claims could have exposed it to serious liability for
violating federal regulations or PhRMA guidelines. A rational factfinder could
come to only one conclusion regarding Bittel’s termination: he was terminated
because of this spate of policy violations, not his age. Because Bittel did not
raise a genuine issue of material fact as to pretext and Pfizer was entitled to
judgment as a matter of law, the district court was correct in granting summary
judgment in favor of Pfizer.
III. Conclusion
For the foregoing reasons, Pfizer is entitled to summary judgment and the
judgment of the district court is therefore AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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