DocketNumber: No. 01-3766
Citation Numbers: 55 F. App'x 243
Judges: Siler
Filed Date: 12/23/2002
Status: Precedential
Modified Date: 7/25/2022
Plaintiff Robert Pucci appeals the district court’s entry of summary judgment in favor of defendant BASF Corporation (“BASF”) on his claims alleging age discrimination and violation of Ohio public policy in the failure to hire him for various positions for which he applied after his termination. For the following reasons, we AFFIRM.
BACKGROUND
Pucci was born in 1937; he was nearly fifty years old when he began working as a Technical Sales Representative for BASF, in its Container Coatings department, in 1987. He worked satisfactorily in this position for ten years. Pucci testified that he was never disciplined, reprimanded, or suspended, and his annual performance and development reviews reveal consistently high ratings.
Pucci filed suit in federal district court, which granted summary judgment to
STANDARD OF REVIEW
This court reviews de novo the district court’s grant of summary judgment. Bush v. Dictaphone Corp., 161 F.3d 363, 367-68 (6th Cir.1998). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
DISCUSSION
A. The Failure to Hire
This court has held that, in order to state a prima facie case of discrimination in failure to hire, a plaintiff is required to show that: (1) he was a member of a protected class; (2) he applied and was qualified for the position in question; (3) he was considered and denied the position; and (4) he was rejected in favor of a substantially younger person with similar qualifications. Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1095 (6th Cir.1996).
Specifically, the district court analyzed whether BASF’s proffered reason for its
Pucci contends that he did present at least a question of fact regarding whether he was as qualified or more qualified than the successful candidate for each position for which he applied. To support this argument, he summarizes the stated qualifications listed in the open position notices for each position for which he applied, and sets forth his own qualifications which he deems pertinent. This process, however, reveals the deficiencies in Pucci’s argument. For example, the first stated qualification for the position of Technical Sales Representative in the Coating Raw Materials-NVE department is “a BS degree in chemistry or related field.” Pucci recites this requirement, and states that he has “a B.S. degree in management and over forty years of work experience in a related field.” Although Pucci appears not to acknowledge his failure to meet the requirement as stated, the district court noted that Gary Sadowski, who was selected for the position, had a chemistry degree, whereas Pucci did not. Further, Pucci omits one of the stated qualifications for this position, requiring that the candidate possess “a thorough knowledge of the Paints & Coatings Industry ... along with directly related sales experience.”
Pucci’s summations with regard to the other positions likewise suffer from these defects. He states the requirements of the position (sometimes omitting one or more stated requirements), then states his qualifications, without specifically discussing how each of his qualifications relates to the requirement, or how they render him as qualified or more qualified than the selected candidate. Pucci does make the bare assertion, with regard to each selec-tee, that questions of fact exist as to whether that selectee meets certain of the stated requirements for his or her position. Yet again, these conclusory assertions are unsupported by specific facts. For example, with regard to the position of Technical Sales Representative in the Coating Raw Materials-NVE department, for which Sadowski was hired, Pucci does finally acknowledge the requirement that the candidate have a thorough knowledge of the paints and coatings industry and directly related sales experience, which he had omitted to mention in his initial brief. He further asserts that, while Sadowski was employed with PS Stevens (a manufacturer of ultraviolet curing coats), there remains a genuine issue of material fact as to whether Sadowski possessed the requisite knowledge and experience. Pucci fails to address, however, just how his own qualifications establish that he meets this particular requirement.
B. Violation of Ohio Public Policy
The district court correctly observed that an Ohio common-law claim for violation of public policy must be based upon the termination of employment or an act of discipline. See Evans v. Toys R Us, Inc., No. 99-3233, 2000 WL 761803, at *11 (6th Cir. June 2, 2000). Because the court had already held that Pucci could not prove a claim against BASF based upon the termination of his employment, and Pucci had never asserted a claim of discriminatory
AFFIRMED.
. Pucci received only the highest two ratings, "Exceptional Quality Performance" and "Quality Performance” on these reviews, as well as many positive comments regarding his work.
. Betkurer enunciated the fourth prong as requiring that the plaintiff be rejected in favor of another person with similar qualifications who is not a member of the protected class. See id. Shortly after Betkerur was decided, however, the Supreme Court clarified in O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-13, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), that the correct requirement for gauging age discrimination is for the person selected to be “substantially younger” than the plaintiff. This court has since incorporated that language into the articulation of the prima facie requirements. See Bush, 161 F.3d at 368.
. "To make a submissible case on the credibility of his employer’s explanation, the plaintiff is 'required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate [the adverse employment decision], or (3) that they were insufficient to motivate [the adverse employment decision].' " Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1084 (6th Cir.1994) (emphasis in original) (quoting McNabola v. Chicago Transit Authority, 10 F.3d 501, 513 (7th Cir.1993)).
. Pucci presents several additional arguments which are without merit. He contends that BASF's failure to interview him for any of the positions for which he applied is evidence of pretext, but he cites no authority for this proposition. He simply cites the fact that he was not interviewed for each position, and that the person who was eventually selected for each was substantially younger than him. Pucci also asserts, without authority, that he can demonstrate pretext by showing that BASF violated its policy of preferring internal candidates by hiring external applicants over him. The district court rejected this argument, finding that Pucci had failed to introduce evidence indicating that this policy outweighed consideration of the candidates’ qualifications. Pucci attacks this finding as an impermissible credibility determination and an example of the district court’s weighing the evidence in violation of the summaty judgment standard. Pointing out a failure of proof, however, does not constitute weighing the evidence. Pucci’s assertion does not create a genuine issue tending to show pretext. Finally, Pucci argues that there is an issue of fact as to whether the various decisionmakers knew his age when he submitted his applications and resume. Although the decisionmak-ers testified that they did not and would not have known Pucci's age, Pucci asserts that they could have deduced it from his resume, which indicates that he graduated from high school in 1956 and had been in the workforce since at least 1974. While these indications may serve to distinguish the cases cited by BASF (which establish that summary judgment is proper where the employer has no knowledge of the plaintiff’s protected status at the time it makes the adverse employment decision), they do not create a material issue showing pretext. Moreover, it was disputed at oral argument whether Pucci’s resume was actually forwarded to any decisionmaker.