Zaben v. Air Products & Chemicals

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-3038
D. C. Docket No. 94-30361-RV
LAWRENCE T. ZABEN,
Plaintiff,
JAMES O. LEWIS,
Plaintiff-Appellant,
versus
AIR PRODUCTS & CHEMICALS, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
(December 3, 1997)
Before BLACK, Circuit Judge, HILL and HENDERSON, Senior Circuit Judges.
PER CURIAM:
James O. Lewis filed this action in the United States District Court for the
Northern District of Florida pursuant to the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq. (“ADEA”), charging the defendant, Air Products &
Chemicals, Inc. (“APC”), with discrimination because of his age when he was
discharged in connection with a reduction in force at its Pace, Florida, plant. APC
eventually filed a motion for summary judgment, which was granted by the district
court. Lewis filed this timely appeal from that final judgment. We affirm the
judgment of the district court.
I. FACTS
Lewis was born in June, 1942, and began working for APC as an electrician
at its Pace, Florida, plant in March 1980. He later exercised his plant seniority to
transfer to a chemical operator position during another reduction in force (“RIF”) in
1986. He transferred back to his electrician job in 1991, where he remained until the
end of his tenure with APC . Sometime prior to August of 1993, APC executives at
the company’s headquarters in Allentown, Pennsylvania, decided to improve the
company’s profits and competitive position by downsizing the firm’s workforce by
seven to ten percent. This “Profit Improvement Plan” was communicated to Brian
Gebbia and Phillip Bryant, the manager and the human resources director,
respectively, of the plant, on or about August 17, 1993. The only instructions
apparently given to Gebbia and Bryant were that this was to be a position reduction
and seniority was not to be a factor in the selection of employees for termination so
that no employees would be permitted to “bump” a less senior employee in order to
transfer to another job classification within the plant.
Based on his familiarity with the employees and their annual evaluations but
without consulting their personnel files, Bryant began compiling a list of employees
2
for dismissal within the strictures of these guidelines. He determined that all of the
electricians in the plant were equally skilled but selected Lewis for termination
because he did not have as much seniority as the others in that group, even though
at that time he was 51, the oldest electrician employed at the plant.
Lewis and Lawrence T. Zaben,1 a production foreman who was also released,
filed this action under the authority of the ADEA and the Florida Civil Rights Act,
West’s F.S.A. § 760,2 alleging that their discharges were the result of unlawful age
discrimination. APC eventually filed a motion for summary judgment on all the
plaintiffs’ claims, giving as its reason for letting Lewis go that he had the least
seniority of all the electricians. In his opposition to the motion, Lewis alleged, inter
alia, that two first-line supervisors at the plant, Hobart Carter and Tommy Dunning,
had told him that the company wanted to get rid of its older employees.
The district court held that these alleged statements were hearsay and did not
fall within the hearsay exception for admissions by a party opponent because there
was no evidence that Carter or Dunning had any input in the RIF decisions affecting
Lewis or Zaben or played any role in Lewis’ dismissal. Fed.R.Evid. 801(d)(2)(D).
The court noted that these “statements may also present a double hearsay problem
because the declarants seemed to be repeating what other, unidentified, declarants
1
At age 55, Zaben was the oldest supervisor in the Pace facility at the time
of his termination. According to management, Zaben was selected because,
although he had excellent technical abilities, he was deficient in interpersonal and
leadership skills.
2
Age discrimination claims brought under the Florida Civil Rights Act have
been considered within the same framework used to decide actions brought
pursuant to the ADEA. See Morrow v. Duval County School Board, 514 So.2d
1086 (Fla. 1987).
3
had told them.”3 After excluding these statements, the district court concluded that
Lewis had not offered sufficient admissible evidence to overcome APC’s articulated
legitimate reason for releasing him. Accordingly, the court entered a Fed.R.Civ.P.
54(b) final judgment against Lewis.4 Lewis appeals from that judgment.
II. STANDARD OF REVIEW
We review a district court’s order granting summary judgment de novo.
Browning v. AT&T Paradyne, 120 F.3d 222 (11th Cir. 1997). Summary judgment is
appropriate where there is no genuine issue of material fact to be tried. Fed.R.Civ.P.
56 (c). A fact is material only when the dispute over it has the potential to change
the outcome of the lawsuit under the governing law if found favorably to the
nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 538 (1986). We view the record, and all reasonable
inferences therefrom, in the light most favorable to the nonmoving party. Jameson
v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996). A district court’s ruling on the
admissibility of evidence is reviewed under an abuse of discretion standard. Judd
v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997).
III. DISCUSSION
A. Supervisors’ Statements.
3
Order dated June 11, 1996 at 6 n.2.
4
The court denied APC’s motion in Zaben’s case because it found that age-
biased statements by Jim Maharg, Zaben’s supervisor, were made within the
scope of his employment and, thus, constituted direct evidence of discrimination
in Zaben’s case. According to Zaben’s deposition testimony, Maharg repeatedly
threatened to get rid of him because he was too old to change. See, e.g., Zaben
Dep. at 67.
4
As noted above, in opposing APC’s motion for summary judgment, Lewis
relied in part on statements allegedly made by two lower-level supervisors at the
plant, Hobart Carter and Tommy Dunning. According to Lewis’ deposition testimony,
these individuals told him that “they [meaning higher officials at the company] was
[sic] talking about getting rid of the older employees,”5 and that “they wanted younger
employees to train them the way they wanted them.”6 Lewis argued that the
statements survived the hearsay prohibition because they were admissions by a
party opponent in compliance with Fed.R.Evid. 801(d)(2)(D). The district court
determined that there was no evidence these individuals played any role in the
decision to terminate Lewis and that the statements, therefore, constituted hearsay.
On appeal, Lewis urges that the statements are admissible as some evidence
of age discrimination because they were made in the course of addressing
subordinates at daily meetings in the ordinary scope of their duties. APC claims that
the district court correctly excluded the statements because they are simply
statements of opinion by lower-level supervisors who had no responsibilities for
personnel decisions and who were not involved in any way with the employment
decisions made in conjunction with the RIF.
Under the Federal Rules of Evidence, “‘[h]earsay’ is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). As a general rule,
“h]earsay is not admissible except as provided by these rules ....” Fed.R.Evid. 802.
5
Lewis Dep. at 39.
6
Lewis Dep. at 40.
5
Excepted from the definition of hearsay, however, is “a statement by the party’s
agent or servant concerning a matter within the scope of the agency or employment,
made during the existence of the relationship,” which is deemed an admission by a
party opponent. See Fed.R.Evid. 801(d)(2)(D). Thus, statements made by a
supervisory official who plays some role in the decision making process are
generally admissible. See, e.g., Miles v. M.N.C. Corp., 750 F.2d 867, 873-75 (11th
Cir. 1985). Moreover, such statements can constitute direct evidence of
discrimination. Under this circuit’s precedent, direct evidence of discrimination is
competent evidence which, if believed, would prove the existence of a fact at issue
without inference or presumption. See Carter v. City of Miami, 870 F.2d 578, 581-82
(11th Cir. 1989).
The statements need not constitute direct evidence of discrimination,
however, to be admissible. Lewis relies on several decisions which approve the
admission of supervisors’ statements regarding possible age bias of others within
a company. The Seventh Circuit Court of Appeals has held that statements by the
plaintiff’s supervisor about “the attitude, intentions and/or policy of the higher-ups”
in management were properly admitted into evidence. See Hybert v. Hearst Corp.,
900 F.2d 1050, 1053 (7th Cir. 1990). Crucial to that decision, however, was the
court’s conclusion that the statements were a direct warning by the plaintiff’s
supervisor, himself a member of management, and that they were not simply a
repetition of what others in management had told him. Id. Thus, the statements
posed no “double hearsay” problem. Id.6
Similarly, the Third Circuit Court of Appeals has held that an employee may
testify about statements made by his supervisor regarding company policy toward
older employees. According to that court, “[w]here a supervisor is authorized to
speak with subordinates about the employer’s employment practices, a
subordinate’s account of an explanation of the supervisor’s understanding regarding
the criteria utilized by management in making decisions on hiring, firing,
compensation, and the like is admissible against the employer.” Abrams v. Lightolier
Inc., 50 F.3d 1204, 1216 (3d Cir. 1995). The court found that there was no double
hearsay problem because the supervisor’s explanation, if offered in person by the
supervisor, would not be subject to a hearsay objection. Id. In each of these cases,
the supervisor’s statements to their subordinates were found to have been made
within the ordinary scope of their duties. Therefore, they constituted an admission
by a party opponent which was not excludable as hearsay. In this case, neither
Carter nor Dunning was Lewis’ supervisor. Further, there has been no showing that
Carter or Dunning possessed any authority to speak for APC on personnel matters
generally or the RIF in particular.
Moreover, as the district court suggested, Lewis’ testimony concerning what
Carter and Dunning said to him about what others in the company told them
presents a classic “double hearsay” problem. Under the federal rules, “[h]earsay
within hearsay is not excluded under the hearsay rule if each part of the combined
statements conforms with an exception to the hearsay rule provided in these rules.”
Fed.R.Evid. 805; see U.S. v. Pendas-Martinez, 845 F.2d 938, 942-43 (11th Cir.
1988)(both levels of hearsay must be excepted from the hearsay rule). In a factual
7
situation very similar to that here, the Third Circuit Court of Appeals decided that the
plaintiff’s testimony that his supervisor told him that “they [presumably meaning
unidentified superiors of the supervisor at the company] wanted a younger person”
was inadmissible double hearsay because there was no basis for admitting the
statement that “they” made. Carden v. Westinghouse Electric Corp., 850 F.2d 996,
1002 (3d Cir. 1988). The Eighth Circuit Court of Appeals reached the same
conclusion in Cedeck v. Hamiltonian Federal Savings & Loan Association, 551 F.2d
1136 (8th Cir. 1977).
As stated earlier, Carter’s and Dunning’s statements to Lewis are hearsay
because they were not made within the scope of their authority at the company. If
Carter and Dunning had been deposed - or had furnished sworn affidavits - and had
testified with respect to age-biased statements made by specifically identified, senior
managers at the plant, their statements, like those in Hybert and Abrams, might
have been relevant and, therefore, permissible. Lewis did not offer such testimony.
Rather, as in Carden and Cedeck , Lewis sought to have the district count consider
statements made to him by Carter and Dunning that “they,” meaning other
unidentified declarants, wanted to get rid of their older workers. Such testimony is
hearsay and was properly excluded by the district court.
B. Summary Judgment.
In an unlawful age discrimination case, the plaintiff bears the ultimate burden
of proving by a preponderance of the evidence that age was a determining factor in
the employer’s decision to dismiss him. Clark v. Coats & Clark, Inc., 990 F.2d 1217,
1226 (11th Cir. 1993). In order to survive a motion for summary judgment, the
8
plaintiff must first establish a prima facie case of age discrimination. This may be
accomplished by presenting direct evidence of discriminatory intent, such as age-
biased statements made by the decision maker, see Earley v. Champion
International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990); by presenting
circumstantial evidence which complies with the test 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); or by presenting a statistical pattern of discrimination, Earley, 907 F.2d at
1081. Once the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for the plaintiff’s
discharge. Clark, 990 F.2d at 1227. If the employer does so, the burden shifts back
to the plaintiff to “introduce significantly probative evidence showing that the
asserted reason is merely a pretext for discrimination.” Id. at 1228.
Lewis did not present any statistical evidence of discrimination and, with the
exclusion of the statements attributed to Carter and Dunning, he offered no direct
evidence of discrimination with respect to APC’s decision to terminate his
employment. Therefore, his only option for establishing a prima facie case was to
present circumstantial evidence which satisfied the McDonnell Douglas test. Under
that formula, the plaintiff must show that he or she (1) was a member of a protected
group, (2) was qualified to do the job, (3) was discharged and (4) was replaced by
someone outside the protected group. See Castle v. Sangamo Weston, Inc., 837
F.2d 1550, 1558 (11th Cir. 1988). These elements are altered in cases involving
RIFs and in those where a position is eliminated entirely. In such cases, the plaintiff
must show (1) that he was in a protected age group and was adversely affected by
9
an employment decision, (2) that he was qualified for the position held at the time
of discharge and (3) evidence by which a fact finder could reasonably conclude that
the employer intended to discriminate on the basis of age in reaching that decision.
Jameson v. Arrow Co., 75 F.3d at 1532.
The district court concluded that Lewis had failed to offer evidence sufficient
to permit a reasonable fact finder to believe that APC intended to discriminate on the
basis of age. Assuming, however, that Lewis had established a prima facie case,
the court further concluded that he had not presented sufficient probative evidence
that APC’s asserted reason for terminating him was a pretext for discrimination. On
appeal, Lewis challenges the grant of summary judgment to APC because the court
failed to view the evidence in the light most favorable to him. According to Lewis,
there was sufficient evidence from which a reasonable juror could find that the entire
RIF selection process was tainted with age-biased statements of various APC
personnel. APC argues that there was insufficient admissible, relevant evidence
from those clothed with adequate authority to establish that its proffered reason for
terminating Lewis, his lack of seniority, was a pretext for discrimination.
Lewis points to age-biased statements made by Maharg, Zaben’s supervisor,
and other employees of APC as evidence of APC’s discriminatory intent. While
Maharg did apparently make recommendations concerning the dismissal of certain
employees, they were limited to those under his supervision. According to Maharg,
Lewis’ termination was never discussed in his presence.7 There is no evidence that
anyone other than Gebbia and Bryant participated in the decision to discharge
7
Maharg Dep. at 89. In contrast, it is undisputed that Maharg had input into
the company’s decision to discharge Zaben. Id. at 84; Gebbia Dep. at 14.
10
Lewis. The plaintiff also complains that Gebbia improperly focused on an
employee’s future prospects with the company in making the decisions to dismiss
or retain those under his authority. In support of this contention, Lewis points to
Gebbia’s responses to several questions posed by the plaintiffs’ attorney during
Gebbia’s deposition months after the events at issue. During that deposition,
counsel for the plaintiffs was inquiring why Zaben was selected for termination rather
than a younger supervisor with less experience. The following exchange took place:
Q: Since you were not looking and simply comparing their past experience
with the company, you must have been looking toward the future; correct?
A: As well.
Q: And from your standpoint, Mr. Parker had a – was a better future prospect
for the company that Mr. Zaben; true statement?
A: True.
Q: He had a longer term potential for employment there than Mr. Zaben did,
didn’t he?
A: From performance, yes.
Q: And if you were going to invest money in one or the other of them, it made
business sense to you to select Mr. Parker over Mr. Zaben, didn’t it?
A: But it was not all on the decision of the future.
We did look at past – past performance was part of that.
Q: I understand. And if you looked at past experience, clearly, Mr. Zaben had
it all over Mr. Parker.
A: Not on social and leadership skills.
(Gebbia Dep. at 35-36). These ambiguous responses clearly do not establish that
Gebbia looked only at Parker’s “future” with the company in deciding to select Zaben
for termination. Moreover, it has no bearing on Lewis’ cause of action whatsoever
and is insufficient to raise an issue of fact here.
As further evidence of APC’s alleged discriminatory practices, Lewis proffered
the affidavit of Dale Maxwell, who was formerly a receptionist at APC. She stated
that, while a number of older people had come into the plant looking for employment,
she could not recall anyone over 50 ever being hired. Noting that there had been
no showing that Maxwell had any knowledge about the demographics of job
applicants at APC, this court rejected this testimony in an earlier age discrimination
11
case against the company. See Ward v. Air Products & Chemicals, Inc., No. 96-
2940 (11th Cir. Mar. 18, 1997).
Although the company gave differing explanations for the selection of
employees to be discharged, saying on the one hand that seniority played no role
in the process and that only an employee’s performance was considered while, on
the other hand, asserting that Lewis was discharged because he had the least
seniority, its reasons are not, as the district court observed, necessarily inconsistent.
In selecting individuals to be terminated generally, APC relied on performance
criteria. In the case of the electricians, since Bryant considered the performance of
all of the electricians to be about equal, the company selected the electrician with the
least seniority, Lewis, for termination.
Finally, Lewis contends that he should have been allowed to transfer to a
chemical operator’s job as he had done during the 1986 RIF. He calls attention to
the fact that the company hired a number of individuals for chemical operator
positions in the spring of 1993 and again in the spring of 1994 and that the average
age of those new hires was under 30. One of the few instructions that Gebbia and
Bryant received from the company’s headquarters concerning this RIF was that no
one would be permitted to use seniority to “bump” another employee. In fact, as
APC points out, no one selected for termination in this RIF was permitted to transfer
to another job within the Pace facility.
In summary, the district court correctly concluded that Lewis had failed to
present sufficient evidence of pretext to create a jury question as to whether APC
intentionally discriminated against him on the basis of his age. Because of this
deficiency, the judgment of the district court is AFFIRMED.
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