Barber v. CSX Distribution Services

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
10-16-1995
Barber v CSX Distribution
Precedential or Non-Precedential:
Docket 94-3604
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 94-3604 and 94-3653
SIMON A. BARBER
Appellant No. 94-3604
v.
CSX DISTRIBUTION SERVICES,
a UNIT OF CSX TRANSPORTATION, INC,;
CSX TRANSPORTATION, INC.
Appellants No. 94-3653
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 92-cv-01241)
Argued July 28, 1995
Before: NYGAARD and McKEE, Circuit Judges and
FULLAM, District Judge2
(Opinion filed October 16, 1995)
THEODORE J. KUKUNAS, ESQUIRE (ARGUED)
419 Frick Building
437 Grant Street
Pittsburgh, PA 15219
Attorney for Simon A. Barber
2
Honorable John P. Fullam, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
1
FREDERICK W. BODE, III, ESQUIRE (ARGUED)
Dickie, McCamey & Chilcote
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402
Attorney for CSX Distribution Services
and CSX Transportation, Inc.
OPINION OF THE COURT
McKEE, Circuit Judge.
Simon A. Barber appeals from the district court's entry of
judgment in favor of his employer, CSX Transportation, Inc.,
following a jury verdict in favor of Barber. Barber sued under
the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.
(1988) ("ADEA"), alleging discriminatory failure to promote and
retaliation for his assertion of his discrimination claim.
Although we agree that defendants3 were entitled to judgment as a
matter of law on Barber's retaliation claim, we hold that the
district court improperly overturned the jury's finding that
defendants' failure to promote Barber was in violation of the
ADEA. Therefore, we will reverse in part and remand to the
district court for proceedings consistent with this opinion.
I. BACKGROUND
Simon Barber has been employed by CSX Transportation or its
predecessors for the last thirty-eight years. During his tenure
with CSX, Barber has served in various capacities of increasing
responsibility and has received numerous merit or performance
3
Although in substance Barber's claims appear to involve
only his employer as the sole defendant, hereinafter we refer to
"defendants" to be consistent with the district court's opinion,
the language in Barber's brief and the caption in this matter.
2
salary increases and letters of commendation. In February of
1987, Barber took the position of Chief Clerk essentially serving
as the office manager in defendants' Pittsburgh sales office. The
position of Territorial Account Executive became available in
that office in March of 1990, and was posted on the company wide
computer system. The Territorial Account Executive was
responsible for the design, marketing and sale of CSX services.
Eight applications were submitted for the Territorial
Account Executive position. CSX's Human Resources Department
screened the applications and determined that only four of the
applicants met the minimum qualifications. Those four were:
(1) Scott Delasandro, age 37 -- one year of
railroad experience and no sales experience.
(2) Kathy Ball, age 44 -- twenty years of
railroad experience, fifteen of which were in
accounting and five of which were in telemarketing.
(3) Andrew Kelly, age 53 -- thirty-four years of
railroad experience including his position as Sales
Representative in the Pittsburgh sales office at the
time he applied for the Territorial Account Executive
position.
(4) Plaintiff, Simon Barber, then age 52 --
thirty-four years of railroad experience, including
fourteen years of railroad sales experience and seven
years of customer service experience.
Robert Edmonds, Director of Sales in the Pittsburgh sales
office, was Barber's supervisor at the time, and was responsible
for selecting the Territorial Account Executive whom Edmonds
would also supervise. Edmonds interviewed the two younger
applicants, Scott Delasandro and Kathy Ball, both of whom worked
in the Baltimore regional office. Although he did not interview
Andrew Kelly, Edmonds informally discussed the position with
3
Kelly after Kelly submitted his application. However, Kelly
withdrew his application after learning the salary. Edmonds did
not interview or discuss the position with Barber.
Even though Edmonds did not formally interview either Kelly
or Barber, Edmonds filled out an "Interview Report Form" for both
of those applicants as well as for the two applicants whom he did
interview. That interview report, dated April 5, 1990, stated
that Barber was "qualified but [did] not possess the credentials
of Kathy Ball" who was selected. Interestingly, Kathy Ball's
interview report was dated May 2, 1990, nearly a month after she
was actually selected.
On May 23, 1990, Barber wrote a letter to defendants' Human
Resources Department questioning Edmonds' decision to award the
position to Ball whom Barber felt was less experienced and less
qualified than he was. Specifically, Barber's letter stated:
I recently submitted a Job Application
Form for the position of Territorial Account
Executive (Job Vacancy No. 199) at
Pittsburgh, PA.
Mr. Robert W. Edmonds, Jr., Director-
Sales, Pittsburgh, has informed me the
position has been awarded to Ms. Kathy Ball
from Telemarketing at Baltimore. In view of
my 21 years of experience in this field (14
years direct sales and 7 years customer
service), I am quite puzzled as to why the
position was awarded to a less qualified
individual.
I would greatly appreciate your response
as to why I was not awarded this job.
App. at 363. Shortly thereafter, Edmonds called Barber into his
office and expressed disappointment over that complaint. On
4
November 28, 1990, Barber received notification that, as of
December 5, 1990, his position as Chief Clerk was being
eliminated as a result of a company wide reduction in force.
Edmonds made the decision to eliminate Barber's position of Chief
Clerk after receiving a mandate from management to eliminate one
of three clerical positions in the Pittsburgh sales office.4
On May 13, 1992, Barber filed this action in the United
States District Court for the Western District of Pennsylvania.
Barber's complaint alleged violations of the ADEA, gender
discrimination under the Civil Rights Act of 1964, 42 U.S.C.
§2000 et seq. (1988) ("Title VII"), and unlawful retaliation
under both the ADEA and Title VII. The resulting trial was
bifurcated and issues of liability were severed from any
determination of damages. Barber's age discrimination claims
were tried to a jury while his Title VII sex discrimination and
retaliation claims were tried to the court. The court found in
favor of CSX on Barber's Title VII claims and Barber does not
appeal that ruling. However, the jury found that CSX violated the
ADEA by failing to promote Barber because of age discrimination
and by retaliating against him when he voiced his displeasure at
not being promoted. Following trial, the court granted a defense
motion for judgment as a matter of law on both the age
discrimination and retaliation claims, notwithstanding the jury's
4
The three clerical positions in the Pittsburgh sales
office consisted of two Secretary-Typists and one Chief Clerk.
5
special verdicts in favor of Barber. Barber now appeals that
ruling.5
II. DISCUSSION
We exercise plenary review of the district court's entry of
an order granting CSX's motion for judgment as a matter of law.
See Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892
(3d Cir. 1994); Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258,
259 (3d Cir. 1987), cert. denied, 488 U.S. 1004 (1989) (motion
for judgment notwithstanding the verdict). Therefore, we must
apply the same standard to this record as the district court. See
Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253 (3d
Cir. 1986). We afford de novo review to the district court's
conclusions of law, but review factual findings to "determine
whether the evidence and justifiable inferences most favorable to
[Barber] afford any rational basis for the verdict." Bhaya, 832
F.2d at 259.
A. AGE DISCRIMINATION CLAIM
The ADEA prohibits age discrimination in employment against
an individual over age 40. 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 the prohibition against
discrimination contained in Title VII, courts routinely look to
5
In their cross-appeal, defendants seek review of the
district court's conditional ruling denying their motion for a
new trial under Rule 59. Because we are affirming the district
court's judgment as a matter of law in favor of the defendants on
Barber's retaliation claim, we need not address the issues raised
in the cross appeal.
6
law developed under Title VII to guide an inquiry under the ADEA.
See, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir.
1985), cert. denied, 474 U.S. 1057 (1986). Thus, we follow the
evidentiary framework first set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
subsequently refined in Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248 (1981), and recently clarified in St.
Mary's Honor Center v. Hicks, U.S. , 113 S. Ct. 2742 (1993).
In addition, Barber's failure to promote claim is analogous to a
claim of failure to hire. Thus, in order to make out a prima
facie case, Barber must show "1) that he belongs to the protected
class, 2) that he applied for and was qualified for the job, 3)
that despite his qualifications he was rejected, and 4) that the
employer either ultimately filled the position with someone
sufficiently younger to permit an inference of age discrimination
or continued to seek applicants from among those having
plaintiff's qualifications." Fowle v. C & C Cola, 868 F.2d 59,
61 (3d Cir. 1989) (citations omitted).
Once a plaintiff establishes a prima facie case the law
creates a presumption of unlawful discrimination, and the
defendant employer must articulate a "legitimate
nondiscriminatory explanation for the employer's adverse
employment action." Seman v. Coplay Cement Co., 26 F.3d 428, 432
(3d Cir. 1994). If the employer puts forth a legitimate business
explanation, "then the presumption of discriminatory intent
created by the employee's prima facie case is rebutted and the
presumption simply ``drops out of the picture.'" Id. (quoting
7
Hicks, U.S. at , 113 S. Ct. at 2749). The plaintiff then
has an opportunity to show that the reasons proffered by the
employer were a pretext for what, in reality, was a
discriminatory motivation. See id. Of course, the ultimate
burden to prove discrimination on the basis of age (burden of
persuasion) remains with the plaintiff at all times. Hicks,
U.S. at , 113 S. Ct. at 2749; Burdine, 450 U.S. at 256; Bhaya,
832 F.2d at 260.
The district court found that Barber established a prima
facie case from which an inference of age discrimination could be
drawn. Barber v. CSX Distribution Servs., No. 92-1241, slip op.
at 2 (W.D. Pa. Oct. 6, 1994). Defendants contest that ruling
arguing that Barber failed to establish the fourth element of a
prima facie case -- that the employer filled the position with
someone sufficiently younger to permit an inference of age
discrimination. We agree with the district court's conclusion
that Barber established a prima facie case. It is undisputed
that Barber was 52 years of age when he was rejected for the
position of Territorial Account Executive, and the successful
candidate was 44. Defendants, without citation to supporting
authority, assert that this "eight year age difference is not
sufficient to establish the fourth element of a prima face case."
Brief of Appellees/Cross Appellants at 25.
A plaintiff under the ADEA need not show that the successful
candidate was someone who was not in the protected class, i.e.
below age 40. All that need be shown is that the beneficiary of
the alleged discrimination is "sufficiently younger" to permit an
8
inference of age discrimination. Maxfield, 766 F.2d at 792
("Courts that have addressed this issue squarely have universally
permitted a prima facie case to be shown through proof that the
favored person was younger than plaintiff. All have held that
the replacement need not be younger than 40, the age at which
ADEA protection begins.") (collecting cases). There is no
magical formula to measure a particular age gap and determine if
it is sufficiently wide to give rise to an inference of
discrimination, however, case law assists our inquiry. In Healy
v. New York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988), we
concluded that nine years difference was sufficient to establish
a prima facie case of age discrimination even though the
favorably treated employee was also within the protected class,
id. at 1214.6 In Douglas v. Anderson, 656 F.2d 528 (9th Cir.
1981), the Court of Appeals for the Ninth Circuit held that five
years difference, in addition to substantial evidence of
plaintiff's qualifications for the position, was sufficient to
establish a prima facie case of age discrimination, id. at 533.7
It is clear that here, the eight year difference between
Barber and the successful candidate, Kathy Ball, could support a
finding that Ball was "sufficiently younger" than Barber to
permit an inference of age discrimination. That difference,
6
In Healy, the employer ultimately prevailed because the
employee was unable to show that the employer's proffered reason
for the allegedly discriminatory treatment was a pretext for
illegal discrimination. Id. at 1220.
7
In Douglas, as in Healy, the employer ultimately prevailed
because the nondiscriminatory justifications proffered for the
employer's actions were credible. Id. at 535.
9
together with the undisputed existence of the remaining elements
of Barber's prima facie case, were clearly sufficient to shift
the burden of production to the defendants and require them to
articulate a legitimate, non-discriminatory motivation for their
failure to promote Barber. Thus, the district court properly
ruled that Barber had established a prima facie case of age
discrimination.
However, the district court erred in concluding that Barber
did not demonstrate that defendants' proffered business reasons
were pretextual. Barber v. CSX Distribution Servs., No. 92-1241,
slip op. at 3-4 (W.D. Pa. Oct. 6, 1994). The district court was
obligated to review the record before it and determine if the
evidence and the inferences that reasonably arose from it
provided "any rational basis for the verdict." Bhaya, 832 F.2d
at 259 (emphasis added). In Bhaya (a case very similar to this
one) we reversed the district court's entry of judgment for the
defendant employer and remanded the case for reinstatement of the
jury verdict finding age discrimination. Here, as in Bhaya
[t]he issue on this appeal is
straightforward. The jury has told us which
explanation it believes, and we are bound by
that finding if there is evidence of record
to support it. Our only inquiry is whether,
taking the record as a whole and resolving
all factual disputes in favor of the
plaintiffs, the evidence and justifiable
inferences therefrom reasonably support the
plaintiffs' explanation. We turn now to
consider whether a reasonable juror could
have concluded that the defendant
intentionally discriminated against the
plaintiffs because of their age.
Id. at 260.
10
The facts and reasonable inferences here clearly allow a
reasonable juror to conclude that Barber's age was a motivating
factor in his employer's refusal to promote him. Defendants
maintain that Barber was not awarded the position because "Kathy
Ball was the best candidate" for the job, and they cite several
legitimate considerations that they argue factored into the
determination. See Brief of Appellees/Cross Appellants at 11-12.
That argument overlooks the procedural posture here. The jury has
spoken. Although the district court may have found the
legitimate explanations credible, the jury did not. That
difference may well be nothing more than a different evaluation
of the credibility of the various witnesses at trial.
Nevertheless, this record does not allow the district judge to
disregard the jury's determination of credibility and substitute
it with his own.
Edmonds testified that he did not formally interview either
of the two older candidates (Kelly or Barber) because he was
familiar with their work as he had supervised both of them for
nine months in the Pittsburgh sales office. Barber notes that
Edmonds had an opportunity to evaluate Kelly's performance as a
salesman, but that he (Barber) was a Chief Clerk, and Edmonds had
no basis to evaluate his abilities in sales. Barber also argued
that Kelly had an opportunity to informally discuss the position
with Edmonds and eventually expressed his disinterest in the
position after learning the proposed salary, whereas Barber was
given no opportunity to discuss the position with Edmonds.
11
The district court, apparently discredited Barber's
arguments. The court reasoned:
It was undisputed, however, that . . .
[Edmonds] was acquainted with plaintiff and
the other older applicant because plaintiff
and the other applicant had worked for the
official in his department for a nine-month
period preceding the time the employment
decision was made. The applicant who was
promoted, as well as the other younger
applicant, on the other hand, were unknown to
[Edmonds], and he explained his desire to
interview them to learn more about their
qualifications for the position.
Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3
(W.D. Pa. Oct. 6, 1994).
The jury was entitled to credit Barber's arguments as more
credible than the contrary explanations of his employer. This is
particularly true when we consider the "interview reports" that
Edmonds completed. The district court's opinion inexplicably
overlooks the fact that Edmonds completed these reports for all
candidates even though he only interviewed two of them. The
court also overlooks the fact that Barber's "interview report"
dated April 5, 1990 refers to Ball as the candidate who had been
selected for the job, but the jury could conclude from Ball's
interview report that she had not been interviewed when Edmonds
declared that she "had been" selected. The district court was
not free to ignore this testimony nor the inferences that this
record supports. "In crediting the defendants' explanation, the
district court effectively reversed the requirement that in
reviewing a jury verdict we are to draw all inferences in favor
of the prevailing party." Bhaya, 832 F.2d at 262. "Evaluation
12
of witness credibility is the exclusive function of the jury, and
where the only evidence of intent is oral testimony, a jury could
always choose to discredit it." Id. See also Dreyer v. Arco
Chem. Div. of Atl. Richfield, 801 F.2d 651, 655-56 (3d Cir.
1986), cert. denied, 480 U.S. 906 (1987).
The district court also stated that Barber had failed to
persuade the court that defendants' explanation that it factored
Barber's unwillingness to move into its decision was pretext. The
district judge stated:
In this regard, defendants offered
uncontradicted evidence that the successful
applicant was employed in the Baltimore area
and would have to relocate in order to accept
the position. Defendants also took the
position that an employee's willingness to
relocate is evidence of the employee's
loyalty and commitment to the employer.
Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3
(W.D. Pa. Oct. 6, 1994). Although this testimony persuaded the
court, it apparently did not persuade the jury. This is
understandable because there was also testimony that the position
that Barber sought did not require relocation. Accordingly, the
record clearly supports the jury's rejection of this explanation.
In fact, defendants concede that "Plaintiff properly states that
willingness to relocate was not a job qualification." Brief for
Appellees/Cross Appellants at 28.
Defendants maintain that the district court's entry of
judgment as a matter of law is consistent with our decision in
Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994). In Fuentes, we
explained that a plaintiff satisfies the requisite quantum of
13
proof to rebut a defendant's stated legitimate business reason
when the plaintiff produces evidence which:
(1) casts sufficient doubt upon each of the
legitimate reasons proffered by the defendant
so that a factfinder could reasonably
conclude that each reason was a fabrication;
or
(2) allows the factfinder to infer that
discrimination was more likely than not a
motivating or determinative cause of the
adverse employment action.
Id. at 762 (emphasis added). Defendants place particular, if not
exclusive, emphasis on the first of these criteria, arguing that
Barber's rebuttal evidence must go to each of their proffered
legitimate business reasons. However, Fuentes also allows a
plaintiff to more generally submit evidence raising an inference
of discrimination. Id.
Hicks teaches . . . that rejection of the
employer's proffered nondiscriminatory reason
will permit the trier of fact to infer the
ultimate fact of intentional discrimination,
so long as there is a finding of
discrimination. In other words, ``[t]he
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.'"
Seman, 26 F.3d at 433 (quoting Hicks, U.S. at , 113 S. Ct.
at 2749 n.4) (citation and footnote omitted) (brackets in
original). Here, the record contained Defendants' inconsistent
interview techniques, the pre-dated and inaccurate "interview
report forms", and differing accounts of the relevance of Ball's
willingness to relocate, all of which could have factored into a
14
jury's decision to discredit defendants' explanation that she was
promoted over Barber because she was a better candidate than him.
Therefore, we will reverse and remand for reinstatement of the
jury's verdict in favor of Barber on his failure to promote
claim.
B. RETALIATION CLAIM
Barber alleged that Edmonds eliminated the position of Chief
Clerk to retaliate for the letter of complaint that Barber wrote
to defendants' Human Resources Department, and that this
retaliation violated the ADEA. The ADEA states in part:
(d) It shall be unlawful for an employer to
discriminate against any of his employees or
applicants for employment . . . because such
individual, member or applicant for
membership has opposed any practice made
unlawful by this section, or because such
individual, member or applicant for
membership has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or litigation
under this chapter.
29 U.S.C. § 623(d). The procedural framework in ADEA retaliation
cases also follows that of Title VII disparate treatment cases as
set forth in McDonnell Douglas, 411 U.S. at 802-05. See Geary v.
Visitation of Blessed Virgin Mary, 7 F.3d 324, 329 n.4 (3d Cir.
1993). Thus, to establish a prima facie case of retaliation, a
plaintiff must show: (1) that he engaged in protected conduct;
(2) that he was subject to an adverse employment action
subsequent to such activity; and (3) that a causal link exists
between the protected activity and the adverse action. See Jalil
15
v. Advel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied,
403 U.S. 1023 (1990).
The district court concluded that Barber failed to establish
a prima facie case of retaliation because he did not demonstrate
"that he engaged in protected conduct." Specifically, the court
concluded "that the letter written by plaintiff to the Department
of Human Resources was not a complaint opposing a practice made
unlawful by the ADEA, nor was it a charge against defendants
under Section 623 of the ADEA." Barber v. CSX Distribution
Servs., No. 92-1241, slip op. at 5 (W.D. Pa. Oct. 6, 1994). As
quoted above, Barber's letter to Human Resources complains about
unfair treatment in general and expresses his dissatisfaction
with the fact that someone else was awarded the position, but it
does not specifically complain about age discrimination.
Accordingly, the letter does not constitute the requisite
"protected conduct" for a prima facie case of retaliation.
In reaching this conclusion, it is important to note that we
do not require a formal letter of complaint to an employer or the
EEOC as the only acceptable indicia of the requisite "protected
conduct" under the ADEA. See, e.g., Sumner v. United States
Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (explaining that
acceptable forms of protected activity under Title VII's
analogous opposition clause include formal charges of
discrimination "as well as informal protests of discriminatory
employment practices, including making complaints to management,
writing critical letters to customers, protesting against
discrimination by industry or society in general, and expressing
16
support of co-workers who have filed formal charges"). It is
neither necessary, nor appropriate to here attempt to define with
precision the type of conduct that will give rise to a
retaliation claim under the ADEA. Our analysis requires only
that we analyze the message that Barber conveyed, and not the
medium of conveyance.
Barber's letter is just too vague to support a finding that
his job was eliminated because he engaged in behavior that was
protected under the ADEA. A person has engaged in "protected
conduct" when s/he "has opposed any practice made unlawful by . .
. section [623]." 29 U.S.C. § 623(d). The practice made
unlawful by § 623 is "discriminat[ion] against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such an individual's age."
29 U.S.C. § 623(a). Thus, the statute provides that a person has
engaged in "protected conduct" when s/he opposes discrimination
on the basis of age. It is clear from Barber's letter that he
felt that he had been treated unfairly as he stated that "the
position was awarded to a less qualified individual." However,
that letter does not explicitly or implicitly allege that age was
the reason for the alleged unfairness. A general complaint of
unfair treatment does not translate into a charge of illegal age
discrimination. The jury was not presented with any evidence to
support its conclusion that Barber's position was eliminated
because he engaged in protected activity. Accordingly, the
district court properly granted the defendants' motion for
judgment as a matter of law on that portion of Barber's claim.
17
III. CONCLUSION
For the reasons stated above, we will reverse the order of
judgment as a matter of law and remand the matter for
reinstatement of the jury verdict in favor of Barber relative to
the age discrimination claim but affirm the order of judgment as
a matter of law on the retaliation claim.
18