Jack Colgan v. Fisher Scientific Company

salary raised ployment with Fisher his was Argued Feb. reasons, including 42 times for various COWEN, Before GREENBERG and cost-of-living adjustments, provisions un- BUCKWALTER, Judges, and Circuit increments, contracts, and his annual ion Judge *. District April to Machine promotion on 7,May Reargued Foreman, supervisory position. Be- Shop SLOVITER, Colgan received eval- Judge, and tween 1975 Before Chief MANSMANN, supervisor BECKER, STAPLETON, of his uations GREENBERG, HUTCHINSON, each rated attribute. sliding on a scale for ratings generally SCIRICA, COWEN, NYGAARD, These individual approaching outstanding. Each ALITO, Judges. good, Circuit * Buckwalter, taken the facts from the extensive L. United States 1. We have Honorable Ronald Judge discovery the Eastern District of Penn- District sylvania, sitting by designation. in this case. implement program. form also included sultants to year’s evaluation Claus remarks; Parow, the evalua- supervisor’s supervisor, written P. Zalewski’s discussed frequently stated that tions system the Kaelin in March or dependable, adapted to cooperative and April falling be- well, leadership qualities, change and had responsibilities hind in relating to the judgment, good and a attitude.2 In good Nonetheless, system. 31, 1986, on March changed form Fisher its evaluation to gave Colgan Fisher the responsi- additional single indicating numerical scale provide a bility supervising castaloy depart- performance, in employee’s overall ad- ment. F. Hundley, plant Robert man- supervisor’s written com- dition ager, give made the Colgan decision to 1.0, ranged “excep- from ments. The scale responsibility Mittelhauser, but F. Thomas achieved,” 5.0, tionally high rarely “un- — Manager Resources, Fisher’s of Human satisfactory,” midpoint with a of 3.0 indi- approached Colgan and Zalewski about the 1983, Colgan In cating “typical.” received change. According Hundley, while Col- rating a numerical of 3.0. gan supervise did not refuse castaloy following year, changed The Fisher department, express he did concern that terminology on the scale: 1.0 became “out- supervising departments three was too standing;” require- “met 3.0 became person. prom- much for one Mittelhauser ments,” “unsatisfactory.” and 5.0 remained Colgan ised before he took over the casta- Zalewski, Manager Compo- Edmund loy group get help that would whatever Manufacturing Colgan’s and direct su- nent perform job. he needed to previ- pervisor, prepared Colgan’s 1984 evaluation castaloy supervisor pursuant ous retired 2.5, gave Colgan rating falling early program, stayed retirement but requirements” “exceeded between Colgan until on June 1986to assist with the February requirements.” “met In transition. gave Colgan responsi- Fisher the additional George replaced That month Kowchuek bility supervising the tool room. In Colgan’s supervisor. Zalewski as immediate September received 2.75 Although supervised Colgan Zalewski had Zalewski, rating from fell in the September May 1985 to he did range previous year’s rating, same as the participate Colgan’s August obviously less favor- but was somewhat evaluation; rather, performance Kow- able. Zalewski wrote that “has chuck, supervised Colgan who had for ten capacity responsibility shown for additional weeks, excluding plant a two-week shut- by taking supervision over of tool room and July, down wrote the evaluation. The establishing procedural changes within it to evaluation stated that support depart- make it a more effective Colgan’s performance had declined since ment.” On November Fisher of- his last evaluation. the evaluation While early employees fered its retirement positive quality some on made comments program Colgan qualified, for which but on safety, category awareness and under January participate he declined to meeting expectations “Results not or which program. in the present opportunities improvement,” early implemented Kowchuck’s written remarks were: “just-in-time” program Kaelin which relies stringent production INTERACTING DEPT. TO DEPT. ES- schedules and coor- A among departments dination so that at TABLISH FIRM FOLLOW UP PRO- stage production parts ADAPTED A each are received CEDURE. HAS NOT TO only REQUIREMENT, as needed. Fisher hired outside con- CHANGING WORK following knowledge”; prodding”; 2. The comments can be found in the "never needs “sets good knowledge”; "appears starter”; evaluations: "has good objective”; "easily adjusts”; "self qualities leadership”; have "communicates taught"; “improved safety depart- “self record of well"; good”; "judgment in all areas is “con- suggest ment.” We do not that all the com- stantly improvements”; "people talks about cost ments were that favorable. him”; respect average"; job "above "excellent However, poor AREA, primary basis for the PRODUCTIVITY CASTALOY did not ade- evaluation was PROGRAM, OBJECTIVITY. POSITIVE program in implement the Kaelin quately App. at 90. he re- departments. Parow stated that provide: Further comments from the consultants complaints ceived KNOWL- A WORKING HAS GOOD implement system the Kaelin be- hired to PRODUCT, BUT NEEDS TO EDGE OF following pro- Colgan “was not cause ATTITUDE, A POSITIVE DEVELOP seems that he does gram, and his attitude ENTHUSIASM, TO ACHIEVE WITH alleged problem The second not want to.” (sic) REQUIRE- performance, THE NECCESSARY which is not evaluation, HIS CA- EXPANDING MENTS FOR mentioned on plant ANA- Colgan generally NEEDS TO left the ear- REER HORIZONS. is that Mittelhauser, Parow, Kowchuck, (sic) and ly. AND GAIN LYZE ONES SELF Hundley Colgan stated that often left each POSITIVE MOTIVATION. during “wash-up seven-minute time” p.m. close of the shift so he before the 4:00 next to placed a checkmark Kowchuck alleged traffic. The third could beat the there on the form: “Unless the statement dispute between Kow- problem involved perform- in significant improvement is a Colgan Colgan alleges in which chuck and demotion, ance, reassignment separation Colgan’s budgets asked for that Kowchuck pro- His comments is indicated.” written departments overnight three even for his WILL “JACK’S PERFORMANCE vided had three though Kowchuck to four weeks THE NEXT BE AGAIN IN REVIEWED budgets given produce those and had (sic). IF A DEFINITE 60 TO 90 DAY’S complete supervisors other two weeks to IN IMPROVEMENT IS NOT SHOWN Colgan told Parow that theirs. Kowchuck FRAME, TIME ADDITIONAL AC- THAT budget to do the for his three refused TAKEN.” TION WILL BE stated, however, that departments. Parow Colgan never refused to do a had before evaluation, per- overall this years budget previous in his to 13 as a originally the scale formance was rated on supervisor. 3.5; however, this mark was at about requirements,” out and 4.0 Colgan appealed crossed “below his evalua- Parow, comprised instructed was marked instead. Parow had tion to a committee Kowchuck, Mittelhauser, Mittelhauser, manag- it de- the human resources and but 4.0, change During the evaluation. er, clined to downgrade rating from 3.5 Colgan why meeting, Parow asked change be- and Mittelhauser initialed stay if did not late he was overworked. believed he was not allowed cause Parow Additionally, Mittelhauser said to Mittelhauser stated at to touch the form. job, your to care about “You don’t seem deposition that not recall his he did your people.” your company or Parow also in su- instance which either he or another Colgan’s appeal perform- of his stated that pervisor downgraded employee’s initial only appeal was the ance evaluation numerical numerical evaluation and that a participated. he had ever which rating of 4.0 was the lowest evaluation he evaluation, Despite had ever seen. 24, 1986, imple- November On per received a raise of week Policy $13.00 Reduction mented a “Workforce depositions, September (“reduction on 1986. In their policy”), Employees” Salaried three personnel the various Fisher offer setting the factors to be considered forth explanations Colgan’s poor general previously It had laying employees. off policy. his and to evaluation: failure to embrace a written On Decem- not had such later, program; 5, 1986, “just-in-time” days follow the Kaelin ber pursuant leaving early; and his refusal his termination to sec- work notified of policy III(C)2c reduction produce budgets and/or failure to for his tion of Fisher’s that, agency after and tem- departments requested by provided three personnel, regular those porary part-time supervisor, Kowchuck.

14H rat- decision was employees who received not his actual termination, alleg- than 3.0 would be select- but instead was his ing less favorable edly August, false Colgan’s duties 1986 evaluation. ed for termination first. younger Fisher added those of two were Co., Colgan v. Fisher Scientific ages years. 44 and 27 Four employees, F.Supp. at (citing Colgan Affidavit category employees the same other ¶ 30; in Opposition Memorandum to Defen- full-time) Colgan (regular, go let on the Summary Judgment dant’s Motion for 31, 33, 37, years and 34 old. day same 14, 1989); (Aug. Transcript of Pretrial 30, 1990)). (July Conference at 17 age discrimina- Colgan filed a July Having determined that the tion with EEOC evaluation was act, discriminatory in the complaint he filed his this action court reviewed District Court for the West- Court’s decisions United States United Airlines, Evans, Pennsylvania on December Inc. v. ern District of (1977) (seniority 52 L.Ed.2d 571 In the district court he asserted system gives present past effect to ADEA under state claims under the continuing conduct is not a law for intentional infliction of emotional allegation system violation absent alleged “duly that he had ex- distress and intentionally discriminate), designed was to remedy his administrative and sat- hausted College Delaware State 449 U.S. prerequisites to jurisdictional isfied all (1980) 66 L.Ed.2d 431 suit.” tenure, (discriminatory denial of rather voluntarily Colgan moved to withdraw resulting nondiscriminatory than termi- infliction emo- his claim for intentional later, year trig- nation of one August in 1989 and Fisher tional distress period), gers limitation and Lorance v. AT summary judgment moved for on the Inc., Technologies, & T 17, 1989, August ADEA claim. On (1989) (charge S.Ct. 104 L.Ed.2d 961 district court filed a memorandum order change seniority system alleg- that that dismissing claim and the emotional distress edly intentionally discriminated on basis of denying summary judg- motion for Fisher’s gender must be filed within a time mea- though yet ment even Fisher had not filed change seniority system, from the in sured Colgan’s answering reply a brief to brief event, discriminatory rather than sub- subsequent pretrial on its motion. At a demotions, effect). sequent its later The conference, recognized that it had court noted that these Title cases court VII reply Fisher filed its brief and ruled before applicable determining in whether there granted at that time it Fisher’s motion for timely exhaustion of administra- had been a summary judgment and dismissed in ADEA cases. Colgan, tive remedies entirety. complaint in its n. The F.Supp. at 301 & 3. district court opinion granting summary judg- In its upheld stated that the Lorance Court had explained ment the district court that Col- grant summary judg- the district court’s gan’s July charge with the EEOC employer ment for the based on untimeli- timely it more was not filed charge in a situation in in ness of the which days negative perform- than 300 after his employer adopted seniority 1979 the had a August peri- in ance evaluation 1986. This alleged system which was not to be dis- because, explain is critical od we will criminatory applied on its face or as be- below, 626(d) provides that in U.S.C. plaintiffs § cause the did not file their admin- ADEA the circumstances of case an charges they until 1983 when istrative may commenced a action not be unless seniority pursuant were demoted charge of is filed unlawful discrimination system. at 302. The district court Id. days with the EEOC within 300 quoted negative example in discussed alleged practice. unlawful The court stat- Lorance:

ed: Indeed, given theory plaintiff could

[Colgan] position successively being promoted, has taken the in this sue for not demoted, off, litigation being being that laid [Fisher’s] that, sufficiently again days fa- viewed in 90 absent being awarded for not long significant improvement, pension, so as these acts— he would be sub- vorable nondiscriminatory demotion, ject reassignment, separa- if them- even tion, to the 1979 be attributed the court concluded that: selves—could cases, seniority. past Our change in effect, [Colgan] placed proba- [i]n today, have declined which we adhere tionary status terms this evalu- disrup- that has such approach follow an employer at a time ation implications. tive suffering severe economic difficulties. circumstances, 912-13, [Colgan] Lorance, Under these re- 490 U.S. at (quoting Id. 2269). unequivocal notice that he had ceived S.Ct. harm, harm suffered concrete rejected Colgan’s argu court district during further manifested itself the De- our decision Bonham v. ment cember reduction force. (3d Industries, Inc., 569 F.2d 187 Dresser denied, (citation Cir.1977), omitted). F.Supp. cert. U.S. at 303 (1978), required L.Ed.2d 113 issue, Finally on the timeliness the district period run from the the limitations adopting Colgan’s court stated conten- discharge. Bonham held that date of his required that he was not tion file of termination if it the date of notification charges until he received notice of his ter- employee’s day of coincides with the last him mination would allow to circumvent the date that work rather than benefits relatively period pro- short limitations period. terminate starts statutory scheme. Find- vided distinguished The district court Bonham Colgan’s interpretation ing that echoed the facts, stating on its Bonham the “disruptive” example by the discussed Lor- plaintiff alleged had that his termination Court, the district court held that he ance here, discriminatory; Colgan asserted was required to file his administrative was evaluation, pre performance that his which days charges within 300 of his termination, ceded his was the discrimina and, so, as he failed to do his evaluation tory F.Supp. 747 Colgan, act. at 302. barred. Id. suit was Quoting Bonham, from the court stated: district court then reached the mer- The begin The does not to [limitations] by considering its of the case Fisher’s con- knows, employee until the or as a run discharge predicat- that the tention was not know, person should that the reasonable age. Colgan’s ed on The court held that employer has made a final decision to grant summary judg- if it could not even him, employee and the ceases terminate ment in favor of Fisher on the timeliness employ- further to render services to issue, it would do so on the merits because er. produce any had “failed to evidence Bonham, 192). (quoting F.2d at Id. 569 argument raise an or credible which would The district court determined that this lan regard pre- of material fact with issue guage Supreme had been undercut rejected Colgan’s The text.” Id. court subsequent Court’s decision in Lorance pre- that he could establish assertion required which held that an of the evidence that Fisher’s ponderance timely charge upon file a administrative explanation pretextu- for the suffering “patent a concrete harm from a through al the affidavits of co-workers ly” discriminatory seniority system. Col history prior August his work about Lorance, F.Supp. gan, (citing 747 at 303 performance evaluation. The court 1986 3). 490 U.S. at 907 n. 109 n. co-workers, Colgan’s equal found that employees Fisher’s hier- The district court then stated that subordinate “[w]e position per- in a to have [Colgan] put archy, were “not find that on notice at the knowledge plaintiff’s performance time of his sonal employment evaluation management objectives.” The (emphasis light impacted.” status had been added). filed rejected also an affidavit Noting court Jarrell, Colgan by Jay K. a certi- expressly provided that he would be re- behalf of required apply appellate court Jarrell consultant. While personnel fied the same test the district court should its own did not follow that Fisher stated initially. Inferences to be conducting August 1986 have utilized procedures evaluation, underlying facts con- court would drawn from the it determined tained in the evidential sources submitted the affidavit as not credit personal not have knowl- the trial court must be viewed did that Jarrell policy and his party oppos- most favorable to the edge light of Fisher’s custom solely on a review ing the motion. The non-movant’s alle- were based conclusions Furthermore, and, it found his gations must be taken as true documents. pointed The court speculative. assertions conflict with those of report to be these movant, for Fisher did not work the former must receive the out that Jarrell and, therefore, no he had evidence of the doubt. benefit they or how in effect policies these were Co., Goodman v. Mead Johnson & applied. denied, Cir.1976), cert. (3d F.2d 97 S.Ct. 50 L.Ed.2d 748 rejected 429 U.S. court Col- Finally, the district (1977). August per gan’s contention long evaluation, occurring after a formance The Court outlined evaluations, could alone history good summary disposition of a requirements by preponderance of pretext establish Corp. v. Ca Celotex motion in judgment cited regard the court In this evidence. trett, 106 S.Ct. Corp., Schering-Plough Turner v. (1986). It held that Fed.R. L.Ed.2d 265 Cir.1990), (3d indicates 56(c) entry “mandates the of sum Civ.P. employee has that an that the circumstance adequate time for mary judgment, after in it does not reviews received favorable motion, discovery upon against party pretext of' to be an inference self allow showing make a sufficient who fails to from later unfavorable drawn existence of an element essen establish the refused to draw The court actions. case, party’s and on which tial to that accept Colgan’s declining to inference proof at tri party will bear burden voluntary offer of Fisher’s November 1985 al.” 477 U.S. F.Supp. at Colgan, early retirement. support its mo moving party need not England New Tele (citing Gray v. 305 323,106 S.Ct. at Id. tion with affidavits. Co., 251, 255

phone Telegraph & 792 F.2d a motion for sum responding American v. Pan (1st Cir.1986); Coburn nonmoving party with the mary judgment, Inc., 339, 344 Airways, 711 F.2d World proof dispositive issue of on the burden denied, 994, cert. (D.C.Cir.), 464 104 U.S. pleadings, and “go beyond must at trial 488, (1983); Lusardi 78 L.Ed.2d 683 S.Ct. affidavits, by ‘deposi or by her own 351, (D.N.J. Corp., 118 F.R.D. v. Xerox 369 tions, interrogatories, and ad answers 1987) (offer early program of retirement file,’ ‘specific facts designate missions on ADEA presumption of vio does not create genuine issue for showing that there is a ” part grounds on other lation), vacated in 324, at 2553. This Id. 106 S.Ct. trial.’ Lechner, v. F.2d sub nom. Lusardi 855 in a form that would need not be evidence Thus, (3d Cir.1988)). the court stated 1062 Id. at trial. be admissible any produce failed to “has indirect, evidence, an direct or from which B. Timeliness Col can drawn.” pretext inference of be Statutory Provisions appeal fol 1. The gan, 747 F.Supp. at 305. This lowed. provisions of The timeliness appeal are set forth germane ADEA to this II. DISCUSSION 626(d), provides: which 29 U.S.C. § Review Standard of

A. by an may be commenced No civil action days until 60 under section grant of individual this of a district court’s On review charge alleging unlawful discrimi- after a summary judgment, 1414 as he did 300-day period advantage filed with the has been [EEOC].

nation that act. file not under shall be filed— charge Such alleged un- days after (1) within The Su contention. reject Fisher’s We occurred; or practice lawful Corp. v. in Mohasco stated preme Court 633(b) 2486, section to which (2) Silver, case in a 447 U.S. days after within applies, (1980), “[n]othing title this 65 L.Ed.2d occurred, practice unlawful alleged Rights] suggests Act the [Civil days receipt by the after or within initiated may not be proceedings state of notice of termination complain individual acting on behalf the EEOC law, which- under State proceedings complainant him by the rather than ant is added) ever earlier. (quoting (emphasis Id. self....” Co., v. Pullman 633(b) Love states: 29 U.S.C. § (1972)). 30 L.Ed.2d prac- alleged an unlawful case of In the in Title VII provide regulations EEOC a law has occurring in a State which tice that: cases employment prohibiting discrimination document, or not whether establishing autho- or age [w]here because verified, Commission received seek authority grant rizing a State charge cogni- may constitute a discriminatory practice, ... relief such VII, and where the Title under section zable brought under may no suit right agency] has waived expiration [state this title before processing of exclusive have been proceedings sixty days after document, that document law, respect to that unless the State under commenced appropriate shall be ter- have been proceedings such earlier deferred added.) agency] ... (Emphasis ... [state minated 1601.13(a)(4)(i)(emphasis add- 29 C.F.R. § of action Pennsylvania provides cause ed). based discrimination Pennsylvania Human Relations provide further age regulations EEOC (Pur- Act, “may tit. 951-962.3 refer all Pa.Stat.Ann. the EEOC ADEA §§ case statute agency” Under that Supp.1990). any appropriate State charges don party must file administrative to which aggrieved Pennsylvania is a state Human Rela- Pennsylvania may with the be referred. charges ADEA tit. Pa.Stat.Ann. think that for Accordingly, tions Commission. we 1626.9. § should re filing we purposes of the issue § Pennsylvania filing aas gard the EEOC hold argues that we should Thus, holding in adhere to our filing. we file Colgan did not action barred Corp., Calgon Davis Pennsyl- charge with an administrative denied, curiam), Cir.1980) 449 (3d (per cert. day limita- within 180 vania commission 897, 1101, L.Ed.2d 827 66 U.S. indeed, 626(d)(1)or, at all.3 tion of section case we (1981), in an ADEA held in which Colgan’s out that points It in a state plaintiff deferral that “a [such 5, 1986, and on December was terminated the extended Pennsylvania] is entitled to charge only administrative 626(d)(2) days] provided period § [of days later more than 180 filed was filed filed a he has state whether regardless of July There- on 1987. the EEOC with days complaint within administrative untimely even fore, case is this its view occurred.” alleged discrimination after mea- filing charge is if the time for added). plain In (emphasis Davis Id. rather Colgan’s termination sured charges between and EEOC filed tiff state urges that It his evaluation. than alleged unlaw days after 180 and 300 advantage of the to take not be should able solely on the we relied practice but ful Pennsylvania has circumstance filing concluding was charges the EEOC relations to obtain a human act adopted Co., 832 633(b) v. See Callowhill Notwithstanding 29 U.S.C. § Allen-Sherman-Hoff Cir.1987). (3d n. 5 premature. is that this action not contend does filing Evans’s sex claim that the state with discrimination timely, implying thus at 677. against on that issue. Id. United in a situation in which she not material was pursuant policy requir- was terminated to a Getty are aware of Kocian We Refin ing flight resign female attendants to (3d Co., 707 F.2d Marketing ing & resigned they pursuant married. Evans In Cir.1983), case. Kocian we a Title YII marriage” this “no rule in her but 300-day period held that the union and United later entered a collective litigant in a deferral state available to bargaining agreement eliminating the rule. litigant or the has the EEOC only when February On United hired Evans proceedings. But or local instituted state employee, accordingly as a new she prior adoption decided Kocian was 1601.13(a)(4)providing seniority purposes for was treated for as if she of 29 C.F.R. § complaint to the state prior of an EEOC had no service. This treatment deferral binding is not on agency and in event bring complaint caused her to Title VII Furthermore, in Cal this in banc court. objection met which was timeliness Co., 832 lowhill v. charge had filed as she not an EEOC after Allen-Sherman-Hoff Cir.1987), (3d in an we indicated F.2d 269 resignation in her Penn ADEA case that a state such as “[i]n evaluating the timeliness of Evans’s agency performing sylvania which has an charge, the noted that Court she did EEOC, of the functions similar to those seniority sys- current claim United’s filing days extended to 300 or to time for unequally treated males and females tem receipt by the period days within 30 though even males hired 1968 and between pro termination of individual of notice of did, acquired seniority more than she law, ceedings under state which ever is during for females hired had sum, 300-day at 271. In earlier.” Id. acquired seniority the same as males. Ad- filing in sec for administrative limitation ditionally, employees and female both male 626(d)(2) action.4 applies tion discharged terminated or otherwise before re-employed treated as 1968 and later Trilogy 2. The Evans-Ricks-Lorance that, explained employees. The Court new 180/300-day prob Resolution of the although seniority system had a United’s not, however, put the timeliness lem does continuing impact pay fringe her Colgan did not file his issue at rest for benefits, question “the critical is whether days charge with the EEOC within 300 exists.” any present violation Id. receipt evaluation. at 1889. It determined that United S.Ct. Thus, filing must decide if the time for we violating then Title VII because was not is to be measured from when system op- neutral in its seniority the evaluation or from when Fish received that, It concluded as Evans “did eration. adopted er its written reduction force timely charge on her 1968 not file a based Colgan. analysis policy or terminated Our alleged any separation and she has not question aspect of the timeliness of this establishing a violation since she facts begins Supreme Court’s Ev with the 1972,” correctly the district court rehired trilogy.5 In United ans-Ricks-Lorance Evans, complaint. dismissed her Inc. v. Air Lines 571, the dealt 52 L.Ed.2d Court S.Ct. 187, were decided point EEOC is as Ricks and Lorance 4. We also out that the authorized worksharing agreements Colgan’s charge state applied to enter into with If Bonham later. agencies. employment practices fair 29 C.F.R. parties surely timely. been The have agreement It has such an with the 1626.10. § though arising trilogy, under Title state that the Pennsylvania they divide commission which 1964, Rights 42 U.S.C. Act of VII of the Civil responsibility, at least in VII cases. See Title seq., precedential in this ADEA 2000e et § Bank, Pittsburgh Trevino-Barton v. Nat'l Mayer agree. & Co. v. case and we See Oscar (3d 1990). Cir. F.2d 874 2066, 2071, 750, 756, Evans, S.Ct. 441 U.S. (1979). L.Ed.2d 609 obviously decide the 5. We cannot this case on Industries, Inc., Bonham v. Dresser basis of allege have had Ricks, discharge, Ricks would College v. In State Delaware in which his 498, “that the manner prove from and to 250, on certiorari 101 S.Ct. U.S. dis- reversing differed court, was terminated Supreme employment Court the discriminatory denial the allegedly the manner which criminatorily from held that discharge pursuant tenure, than a who professors rather other College terminated employ- denial, the unlawful Ricks, to that 449 U.S. denied tenure.” had been pe- triggering the limitations practice ment noted 258, Court S.Ct. at 504. The at thus, VII; under Title charges riod for independent dis- being than that rather was time-barred bécause action Ricks’s act, employ- criminatory “termination charge applicable the within not file his did delayed, is a but Delaware State ment at the denial limit time measured inevitable, the denial of ten- consequence of 259, at At 101 S.Ct. 504. at tenure. Id. 257-58, at ure.” Id. Faculty College, the Com- Delaware State 26, that, by June The Court determined (“tenure Tenure on Promotions mittee 1974, college its official had established the February committee”) recommended to Ricks made position apparent which was posi- not receive tenured that Ricks no the limitations started therefore it department, but education in the tion Thus, dismissal time. the later than its recommendation agreed, to reconsider district court complaint the of Ricks’s 1974, February the following year. In charge timely after to file a for his failure previous to its committee adhered tenure The Court appropriate. June month, recommendation; following date rejected Ricks’s contention supporting in favor of faculty senate voted griev- grievance committee denied On March negative recommendation. explain- period, the limitations ance started 1974, of trustees 13, college’s board ing that: Ricks. deny tenure voted to formally complaining of grievance entertaining a immediately grievance with filed Ricks suggest that decision does not the tenure Policy Committee. the board’s Educational respect decision was in the earlier pendency of during the On June procedure, by grievance The tentative. Ricks a the trustees offered grievance, nature, prior deci- remedy is a contract, in accordance one-year “terminal” sion, opportunity to not an policy not to previous with its influence made. before it is that decision faculty de- immediately junior member contract, signed the Ricks nied tenure. 261, 101 (empha at 449 U.S. at 505-06 Sep- 1975. expired on June which original). sis noti- grievance committee tember conclu- rejected our Supreme The Court grievance. it denied his fied Ricks that termination, June date of sion charge EEOC Ricks filed his period as well the limitations started April policy considerations reasoning that as our tenure the denial of The Court identified required that an mandated practice of employment the unlawful while still charge of discrimination to file a rejected It complained. Ricks Ricks re- noted that employed. Court that, college because the contention Ricks’s that his “explicit notice ceived in the acted with a motive his terminal upon expiration of would end” discharge, his dis- and the denial of tenure his denial of tenure. contract after was a following the denial of tenure 258, 101 S.Ct. at ex- “continuing The Court violation.” fo- in Ricks Court While continuity employ- plained that “[m]ere college’s on the initial discussion cussed its more, pro- ment, insufficient to without implicitly it employment practice, unlawful em- of action for long life a cause trigger requirement notice provided a ployment discrimination.” is, the period; 558, Evans, the limitations at (citing at 504 U.S. S.Ct. posi- official that, had established its employer 1889). The Court stated at 97 S.Ct. apparent to the position and made that date of tion period to the the limitations extend 258, disparate impact because, explicit notice. at 262 date the was felt employee by Id. 504, 16, 703(h), The pursuant at 506 n. 16. seniority sys- n. 101 S.Ct. section that, light of the tenure special Court continued tems “are afforded treatment under denial, recommending twice Lorance, 904, committee’s Title VII.” 490 U.S. at support that recom- faculty senate’s the (discussing S.Ct. at 2265 42 U.S.C. mendation, trustee’s for- the board of 2000e-2(h)). explained The Court § tenure, “there can no deny mal vote to 703(h) provides application section that an abundantly claim here that Ricks was pursuant of different standards to a bona forewarned.” Id. seniority system fide is not an unlawful practice “provided that such differences

Finally, in v. AT & T Technolo Lorance are not the result of an intention to dis- Inc., 109 S.Ct. the gies, 490 U.S. race, color, religion, criminate held that the limitations Supreme Court sex, Lorance, origin.” or national 490 U.S. charge Title for a with period under VII at (quoting 109 S.Ct. at 2265 begins upon adoption run the U.S.C. the EEOC 2000e-2(h)). seniority affecting competitive The Court stated that it had system of a § the, seniority upon employ provision and not construed status this to mean that “ab- pursuant seniority sys discriminatory purpose, opera- ees’ demotion sent tem; thus, employees’ claims were seniority system tion of a cannot be an they brought time-barred because were employment practice unlawful even if the years seniority after the more than three system discriminatory has some conse- system adopted timely charge and a added) quences.” (emphasis (quoting Id. Lorance, 490 at 902 n. was not filed. U.S. Airlines, Hardison, Trans World Inc. v. 1, 911, at 2263 n. 2268. The 109 S.Ct. 63, 82, 97 S.Ct. petitioning employees women who be were (1977)). Thus, petitioning L.Ed.2d 113 1978 and 1980. Id. came “testers” between employees required allege that ei- a 1979 at 109 S.Ct. Under operation ther the creation or the of the agreement bargaining collective the man seniority system was the result of inten- calculating seniority ner for tester was al tional discrimination. length plant-wide tered from service to complaint that in their Court noted 901-02, spent time as a tester. Id. at petitioning employees did not assert downturn, During at 2263-64. a 1982 S.Ct. seniority system similarly that the treated bargaining agreement caused the collective employees differently situated or had been petitioning employees to be selected for intentionally discriminatory operated in an demotion, which would not have been the Lorance, 490 at manner. U.S. system. previous seniority case under the at 2265. It concluded that the com- employees alleged Id. These that the 1979 employer in- plaint only asserted that the change conspiracy protect reflected a tentionally employees’ altered the contrac- discourage male testers and to incumbent purpose rights tual with the to discriminate seeking positions as testers. women adopted seniority system. Id. when it Initially, rejected employ- Court Although allegation this stated a cause of argument operation ees’ of the action, more than this event had occurred facially seniority system neutral had a dis- earlier, years well outside the three parate impact on women under Title VII’s filed of limitations for a to be provision “practices that are fair in the EEOC. Id. at 109 S.Ct. at 2265. form, operation.” but rejected theory also The Court (discussing at “continuing the demotions were -violations” 2000e-2(a)(2)). U.S.C. The Court found § discriminatory adoption of the se- that, although disparate allegation relying regard niority system, impact ordinarily to state a suffice 907-08, 109 S.Ct. 703(a)(2) and Evans. Id. at under Ricks present violation section alleg- (codified at 2266. The Court noted Title VII 42 U.S.C. 2000e-2(a)(2)), edly discriminatory conduct it could not examine the § tenure, pe- the limitations operation seniority system as of the denial of started given plaintiff theory sue succes- effects of the could of the though one riod even criminatory being tenure, sively being promoted, ter- nondis for not the denial of off, demoted, not felt until employment, being was laid and for not mination of 906-07, at 109 S.Ct. year being sufficiently later. Id. favorable one awarded rejected dis- then the if long 2266. Court as these acts—even pension, so distinguish attempt in Lorance sent’s non-discriminatory in themselves—could “delayed, inev- the but discharge Ricks’s change in se- to the 1979 be attributed itable, denial of ten- consequence” of the cases, past we niority. Our which demotions ure, employees’ whereas today, to follow an adhere have declined harm” were consequential “concrete. disruptive impli- has such approach that seniority merely at the time the speculative cations. by noting that all adopted, system was 912-13, 109 S.Ct. at speculative. The Court seniority plans are description of the from our It is obvious that “no concrete rejected the contention trilogy that all Evans-Ricks-Lorance employer provides a occurs when an harm distinguishable on their cases are three seniority guarantee desirable patently less Thus, they are in facts from this one. requires.” Id. at 907 n. the law than what not conclusive on our determi structive but added). (emphasis n. 3 at 2266 S.Ct. Colgan’s performance nation of whether demo Having that the recent determined triggered running of the violation, continuing not a tions were is, however, period. It also evi limitations Lodge its decision Local Court followed has fashioned dent that the Court NLRB, 80 S.Ct. 362 U.S. No. 1424 concerning limita determinations (1960), it held in which L.Ed.2d require prompt filing of periods tions from the limitations ran Furthermore, it charges. discrimination Lorance, adoption. system’s date clear in this case that 909-10, at 2267-68. U.S. at practice the unlawful evaluation was interpretation noted that The Court complains and that his dis policy underlying stat gave effect to the continuing later not a months was eliminating stale claims utes of limitation it was not itself intention violation because underlying the and to the considerations discriminatory regard for the ally without seniority sys afforded to special treatment might this conclusion be evaluation. While tems, and struck “a balance between affirm, require it does not thought to us to protected against dis of those interests it also analysis end our because evident and those who crimination Title VII alleged trilogy that an unlawful many years reliance perhaps for —in work— practice, here the validity facially lawful senior upon evaluation, harm which must have inflicted 911, 109 ity system.” Id. at noticed, been or it will was or should have that to hold otherwise The Court concluded triggered period.6 not have disruptive, stating: would be stated, “the limitations As the Ricks Court facially system to [allowing a neutral be to run so periods should not commence it to challenged, and entitlements under layman it difficult for a soon that becomes altered, adoption many years after its be rights protections of the civil to invoke disrupt those valid reliance inter- 16, 101 at 262 n. statutes.” 703(h) protect. meant to ests that § n. 16. S.Ct. at 506 case, present In the context of the Evans, employee clearly had no- female tester could defeat the settled dis- marriage” “no rule was tice that the (and worked-for) expectations of her co- male and criminatory it treated demoted or not workers whenever she is differently. Further- employees system, female promoted under the new more, policy that a Indeed, question is no beyond. there discharge Colgan urges tion itself was We realize that discrimination, pursuant reduction in force could age alone but we do not an act of event, and, it could not be. the evalua- be actionable understand him to contend that if force, Thus, upon marriage are later met. there resignation is a sub- requiring immediate harm to change substantial and stantial difference between a in causes a which, she be aware. employee initio, of which will seniority plan ab fixes the expressly Similarly, Court Ricks employees’ rights respect to their co- trigger the requirement notice to adopted a performance workers and the evaluation at is, period; that when em- here, rights issue which created no vis-a-vis position its official ployer had established which, employer co-workers or the and on apparent position and made face, subject was tentative and to revi- by explicit notice. was, course, poten- sion.7 While there a 101 S.Ct. U.S. at performance tial that that evaluation would committee’s twice rec- light of the tenure a in become factor a later decision involv- denial, ommending faculty senate's ing consequences Colgan, adverse there recommendation, and the support of that would have to be an additional exercise of deny vote to ten- of trustee’s formal board any consequences discretion before adverse ure, that “there can be the Court concluded could occur. no claim here that Ricks was abundant- Colgan’s provided evaluation that his n. ly forewarned.” Id. at 262 performance would be in 60 to reevaluated Again, of tenure is at 506 n. 16. the denial days improvement a definite is “[i]f require obviously of sufficient harm frame, not shown in that time additional employee to act. added). (Emphasis action will be taken.” language The Lorance Court’s The obvious conclusion to be drawn from “patently less desir- seniority system was this statement is that definitive conclu- concept. Un- incorporates able” the notice yet sion had not been reached. Additional- employee’s sta- seniority system, der a an ly, the checkmark beside the statement fixed, not respect to co-workers is tus with “[ujnless significant improvement there is adjust- tentative. The across-the-board demotion, performance, reassignment in in employee’s each status se- ment of indicated,” separation is reveals that a de- niority system employees’ compet- fixes the making final such as termination of action respect to their co-work- itive benefits with Colgan subject discharge to demotion or adopted ers at the time it is Lor- subject was to further consideration. plaintiffs knew or should have known ance clearly signaled The statement it. opportunity had an to redeem himself Additionally, adjustment seniority, an improved performance over the next 60 pro- eligibility is the which basis days. Contrary to what the district to 90 benefits, clearly motion and other causes found, place Colgan did not court employee in the substantial harm to an and, fact, pay gave Colgan probation employment sta- form of “diminution of As shortly raise after the evaluation.8 Lorance, 490 U.S. at tus.” such, neither an of- Fisher had established fixed, seniority 2265. Once an em- position given Colgan explicit ficial nor no- ployee’s vulnerability to first allegedly unlawful tice of its consequences fixed. The that will also practice performance it reviewed his change seniority sys- in the flow from performance August 1986. The evalua- or, respect promotion as in tem with consequence on Col- termination, tion had no immediate demotion, or to are Lorance gan’s employment, such as a loss of senior- if subject not tentative or to revision them, possibility ity, nor did it alert conditions for such as a reduction clear, might situation. not be so if there was a court’s characterization 7. This unwritten, though policy reduction in force evaluation nor the dis- Neither the Indeed, evaluation effect at the time of the probation. covery makes reference to the em- known or should have been known to suggests that no ployee. See footnote infra. occurred, although change in status had Colgan's change might upon reevaluation. occur conclusion that 8. The district court’s effectively probation" appears to be the "on circumstances, in totality of the ering the it with- flow from consequences the evalu- nature of tentative particular the improve his him to opportunity out showing of evidence and the lack ation Furthermore, it is evident performance. evaluated, rea- knew or had Colgan, when subject to revi- conclusion that a tentative vulnerability to dis- anticipate his son differs performance on based sion future allegedly discrimina- Fisher’s charge, that employment conclu- in character trigger not practice did employment tory a the basis of appeal subject to sion period. of the the start in performance previous record of pro- Ricks. not does our result realize that We as a to in Ricks we referred vide what written that Fisher’s significant It is also prob- guide” the limitations “bright line when not effect policy was reduction College, lem. v. Delaware State Ricks evalua- performance his Colgan received were, (3d Cir.1979). But we F.2d provided clearly policy The reduction tion. the Su- all, and reversed after perform- received had employees who that that opinion pointed in its out preme Court be 3 would than ratings less favorable ance termination employment “[cjomplaints that reductions first termination selected present can discrimination resulted from a such employee with so that an in force circumstances,” an observa- widely varying reduction of the was aware who rating it led to indicate surprisingly not tion which he or she notice that would have policy princi- general application of that “[t]he of a in the event discharged first be would necessarily must be herein ples discussed Thus, reduction if force. reduction Ricks, 449 case-by-case basis.” made on a adopted published and been policy had n. 9. at 504 n. at 258 U.S. days the 60 to 90 prior to employees Thus, it is desirable a without doubt while per- of his improvement Colgan for given rules, must limitation we to have definitive vulnerable formance, have been he would facts opinion to the necessarily confine our or at least he would discharge and cannot announce broad us and before jeopardy of his been aware have should short, by our informed In we are rule. The the evaluation. he received when in Ricks. experience however, Fisher reveals, that record policy have taken reaching our we reduction In result the written adopted position that evalua- of the EEOC’s careful note after months run limitations should not Therefore, Colgan received the statute tion. when absent merely for- of an evaluation evaluation, put him on because did not it poor includes, action, which employment him one of final make that it would mal notice transfers, terminations, distri- alia, compa- inter discharged when to be the first benefits, employee per- or other in force.9 bution on the reduction ny decided later supporting policy case, quisites.10 obvious consid- in this We therefore conclude not that he and the first to be terminated" when unnecessary to determine it findWe employ- predictions about required knowledge re- "to make written Colgan obtained We are policies of Fisher’s even exist.” policy both the date that do because ment not duction policy the date foreclosing possibility on further adoption of reduction that days of his discharge within Colgan's fell may Fisher establish proceedings on remand contends filing. We realize that Fisher EEOC evaluation it time of the had that at the merely policy ‘‘memorialized the written that sufficiently policy definite reduction unwritten regard to prior practice with actual Fisher’s have was or should to establish affected persons who would be categories of his evalua- received aware of it been tion, change this cannot But a reduction in force.” triggering the of the limitations thus start nothing in points to our result period. support conclusion the record which would of its known should have knew or indicate, however, negative that a does It acknowledge prior practice does not may or condition "effect term [sic ] evaluation Indeed, practice. aware of that that he was in some circum- employment sufficient per- at the time he asserts brief claim of discrimi- give rise to a viable stances nation,” policy no Fisher "had formance Navy, Secretary citing Smith receiving per- employees required (D.C.Cir.1981). among 1114-15 appraisals like [his] formance charges, action bearing the EEOC’s view is that a tentative in mind the subject adjustment is still to correction cautionary warning Court’s in Ricks about opportu- have the and the should case-by-case adjudication, go we need not fact, nity this end. to work toward so far as to hold that a evalu- proposed by the final action standard trigger peri- ation can never the limitations the Supreme consistent with EEOC seems od without final action.11 We holding in Ricks that the notifica- Court’s only hold that here it did not. employee’s inevitable tion of the issue, Finally on the timeliness recog- we triggered period, the limitations notwith- any analysis nize that limitation reflects a standing pending grievance, his because judgment concerning point “value the at employer had the established its official which the interests in favor protecting of grievance and the position did not render outweighed by valid claims are the inter- employer’s the action tentative nor could prohibiting prosecution ests of stale employee anything change do to it. Ricks, ones.” 449 U.S. at 101 S.Ct. at 449 U.S. at 101 S.Ct. at 505-06. (quoting 505 Railway Express Johnson v. requiring EEOC notes that a standard Inc., Agency, 95 S.Ct. filing charge of a in less conclusive 1716, 1722, (1973)). 44 L.Ed.2d 295 We filing circumstances would invite the strike this balance in permitting favor of protective charges by employee an not sat- employees remedy tentative isfied a It evaluation. job performances. actions their Nota- out, per- points because of the nature of bly, holding our here does not run afoul of evaluations, formance that such a standard warning Court’s in Lorance perpetual widespread a could cause and allowing that delayed challenge might problem. agree reading We disrupt the valid reliance interests of co- require employee ADEA to an to file a equate workers as we cannot an individual charge simply discrimination seniority sys- evaluation to a has received an evaluation less favorable purpose. tem for this We think it would be employee justified than the thinks could particular fanciful to hold that a employee unnecessarily employ- cause friction legitimately anticipate could favorable em- point relationship. ment We also out that ployment happen- action because of the as events unfold even a favorable evalua- employee stance that another had been un- might tion not be sufficient to save an event, favorably evaluated. In even if employee consequences. from adverse employee in some circumstances one could Thus, rated, employee “very good” an another, rely negative on the evaluation of might passed promotion be over for in fa- surely that should not be so if the evalua- employee vor of an rated “excellent.” Fur- is, here, subject tion tentative or thermore, we think that it would be diffi- sum, cannot, revision. we on this impossible if cult to draw a line at record, say Colgan’s charge was un- negative evaluation is deemed an so Therefore, timely. the district court erred that a must then be filed. Accord- granting summary judgment for Fisher ingly, position the EEOC has much to com- on this issue. it, employees mend as it would relieve having preemptive pre- to launch strikes to C. Pretext Nonetheless, rights. serve their ADEA light Colgan’s of our The district court held that the mer per- conclusion that disposition stage formance evaluation in the turns on the third circumstances analytical of this did not ADEA case cause harm sufficient framework of an case put agree.12 F.Supp. him on notice that he Colgan, should file and we at —Co., -, appreciate having 11. While we the view of the Arabian American Oil U.S. (1991). EEOC, it, particularly L.Ed.2d 274 we need not defer to involving application this case of the ADEA unique to a set of circumstances. See EEOC v. district court indicated: upper level and, direction of ager facie prima Colgan established than favorable was made less management, legitimate, articulated case supervi- given by the direct originally its treatment reason for nondiscriminatory early of an offer obligation to mere sor. While Thus, it was him. support an does not program prove that he could retirement demonstrate discrimination, see, Gray, e.g., proffered for reasons inference legitimate allegedly retaliation employer’s dis only pretext F.2d treatment accept Spencer declines Chipollini who against an crimination. See Cir.), age (3d clearly cert. can be act Inc., Gifts, offer us discrimination, record before on the dismissed, U.S. course, Here, how on a (1987). understand simply cannot L.Ed.2d 815 we can rule not to the we related motion summary judgment issue pretext Thus, must de we cannot retaliation the evaluation. inference of that an but fact issue of genuine if there is termine drawn. the evaluation question of whether

on the Colgan’s Additionally, affidavits of the legitimate assessment represented Fisher’s court, co-workers, by the district rejected ani from a Colgan, free of of inference discrimination. support an that there age. holdWe mus on his based that court considered the district While there were as question of fact a is such Colgan’s not assess persons could these of inference an from which circumstances management’s ob- light in of performance drawn. could be discrimination 304, the F.Supp. jectives, Colgan, evi- circumstantial compelling most The of mate- genuine issue raise a did affidavits against Fisher discriminated dence that poor Colgan’s to the reason rial fact as age is that the of the basis Colgan on Hund- and Parow evaluation. performance was evaluation performance August 1986 imple- Colgan that would said ley both early the offer of after he declined his first however, em- program; ment the Kaelin 1986, and that January retirement shop, partic- in machine present ployees perform- poor he received August 1986 Colgan Walker, stated that Harry ularly com- that was aberrational rating ance meet its worked to it implement did facts ratings. The earlier pared This information schedules. production Col- most favorable to light viewed poor evaluation goes to whether retaliating was suggest that Fisher gan refusal predicated on his it was extent not retire Colgan because he against pretext was program implement years of Here, many service early. after informa- Taking this age discrimination. evaluations, consistently good with Colgan, light favorable most tion in Then, at early declined to take retirement. do, surely is a there required to are as we was period, after he very review next pretext.13 infer basis responsibilities additional given substantial per- Colgan’s report of Additionally, the evaluation, surprise, premature and then a infer- Jarrell, an supported expert, sonnel evaluation sub- he received court The district of discrimination. ence any than evalua- stantially favorable less regarded Jarrell's it it because rejected Further- previously received. tion had discrimi- was conclusion gave him the more, worst the evaluation Colgan, “speculative.” natory as employ- rating for overall conclusion But Jarrell’s F.Supp. man- resources by the human ee ever seen framework, F.Supp. stages [Col- two first prima articula- gan’s] facie case [Fisher’s] the fact suggest if the trier do not non-discriminatory We legitimate reason tion of a wrong it decision, assessment that Fisher’s issue employment are not at concludes for its Certainly Rather, sticking point age discrimination. find in this case. should case, good stage prima faith may facie an evaluation employer case is third make i.e., by preponder- ability prove if the trier [Colgan’s] even intent to discriminate no with the reasons articu- the evidence that ance of disagrees evaluation. fact the true reasons. are not [Fisher] lated employment man The district court on Fisher’s did not view the facts in was based report concluded that Fisher and, uals and his light most favorable to procedures when it its standard breached therefore, apply did not the proper stan- Colgan’s performance, and thus evaluated summary dard on a motion for judgment inferred from Jarrell’s reasonably it can be when it that he determined offered no evi- untypical analysis pretext.16 Accordingly, dence of we will age discrimination.14 product summary judgment vacate the to the ex- determination that the The district court’s tent it was based on this determination.17 expert personal knowledge not have did imposed “eye procedures Fisher’s D. Violation requirement not demanded of ex witness” Willful pert witnesses. See Monks General Fisher contends that this court should (6th Co., Electric 919 F.2d Cir. grant affirm the district court’s of sum 1990).15 Certainly, even the ex without mary judgment on the issue of willfulness pert’s testimony, manuals though even it decided the case without fact raise an issue of material as to wheth expressing any opinion on the willfulness Colgan’s discharge was in violation of er previously count.18 We have determined Furthermore, company policy. the circum simply that willfulness is not shown be stance that did not receive indi employer cause the knew or should have 90-day per could cated 60 to re-evaluation known that its conduct violated the ADEA. mit the trier of the fact to infer that Rather “there must some additional evi management willfully the se orchestrated outrageous dence of Dreyer v. conduct.” quence of events. Co., 651, (3d ARCO Chemical 801 F.2d 658 The district court cited case law for the Cir.1986), denied, cert. premise poor the circumstance that a that (1987). 94 L.Ed.2d 519 We performance good follows evalu- evaluation have, however, rejected premise that ations, alone, standing give to cannot rise merely quantitative willfulness a stan in ren- an inference of discrimination dard; fact, single “if a act it meets the dering poor Colgan, evaluation. qualitative standard could show both inten F.Supp. But, poor evaluation age tional discrimination and willfulness.” did not stand alone until the district court Matlack, Inc., Kelly v. 903 F.2d unjustifiably dismissed the rest of the evi- (3d Cir.1990). supporting pretext. dence the inference of discovery procedural posture 14. In addition to materials Jarrell re- of this case we it unnec- find Policies, essary surely viewed Fisher’s Manual Personnel to detail all the evidence as we will of Procedures, Colgan's performance engage weighing process Practices and not in a factual on an do, through appeal summary judgment. evaluations from 1975 and the from a We personnel parent company. however, manuals of part Fisher's observe that Fisher for the most argument legiti- to focus its factual on the seems rejecting 15. The district court in Jarrell’s affida matter, macy of reduction in force. That 56(e), provides vit cited Fed.RXiv.P. that however, actually is not in issue as the reduc- “personal affidavits shall be made on knowl significant only force is insofar as it has tion in edge” setting "facts as would be forth admissible bearing Colgan's obligation charges to file on appropriate in evidence.” That citation was indicated, we do under the ADEA. As we have went, far as it but was not in itself determina Colgan urge not understand to that if the evalu- tive as it should have been considered in tan pretextual prevail ation was not he can on the permits with Fed.R.Evid. 703 which an dem merits. expert opinion facts data to base on expert “made known to the at or before the pre- Colgan asserts that the district court was hearing.” The cases on which district court reconsidering cluded from its initial denial of expert testimony. relied did not involve See judgment original summary denial be- as the Williams, (3d Hurd v. 755 F.2d Cir. came the law of the case. view of our Beans, 1985); Carey F.Supp. point conclusions this is moot. Cir.1981). (E.D.Pa.1980), (3d aff'd, realize, course, certainly 18. This is understandable as 16. We of that the record does compel if he could not that was the could not establish willfulness not conclusion practice. age prove But in view the that there had been an unlawful victim of discrimination. (“EEOC”) under Commission Opportunity (1) the aberrational contends Act Employment Age Discrimination re- in which evaluation to run when begin not (“ADEA”) did given, when rating ever worst ceived the negative performance received employee long-time employ- his light of considered employer failed because record, (2) evaluation outstanding ment and have should employee orwas show resolve Fisher made no effort whereby employ- policy aware finding of been support a problems employment ratings would poor performance ees decline to consider We outrageousness. during reductions first discharged however, dis- be arguments, these stated the evaluation force, and because them yet not considered has trict court at a re-evaluated employee would course, remand. so on do may, of though it disagree that I Because date. later only pur- aif commences period limitations III. CONCLUSION evalu- discriminatory performance portedly will vacate foregoing we In view of consequence or the has an immediate ation Au- summary judgment for order has actually aware it rendered employee is of Fisher. How- favor gust termination, respectful- I him vulnerable a definitive ever, reluctant make arewe receipt I would hold ly dissent. timely be- the action determination purportedly district in the decided case was cause ADEA start the is sufficient to summary a cross-motion court without if a period reasonable limitations we have been by Colgan. While judgment poten- that the evaluation be aware would fact in any material issue identify unable to detrimen- significant some tially could have we think that point we the timeliness I status. impact on tal bringing preclude not should deter- standard also establish court the district the attention facts to ADEA mining when the the record.19 appear in yet not do that as some provide that would begins to run amake final Thus, at this time will we inquiries.1 guidance future practical and, in- issue timeliness on the disposition summary judg- the stead, only vacate will I. Beck v. Re- Compare point. the ment on 576, Co., 860 F.2d Products liance Steel determina- majority’s the I dissent from Cir.1988); Bank Lin- (3d First Nat'l 581 period did limitations the that ADEA tion 277, Co., Ins. coln Nat’l em- the unlawful when begin to run Life not Furthermore, Cir.1987). we will (3d 281-82 occurred, namely practice ployment ex- summary judgment the vacate perform- negative the given of on the merits predicated it was tent that to moti- that he believed evaluation ance the mat- Finally, will remand we the case. strays too far it age, because by his vated proceed- for further court district ter to the the precedent and Supreme Court from opinion. this ings with consistent requires an em- The ADEA itself. statute the EEOC complaint with file a ployee dissenting. Judge, COWEN, Circuit practice. the days within of unlawful added). 626(d) The (emphasis the U.S.C. § limita- holds that Today this Court emphasized has Court age complaint filing a tions period determining the beginning focus for proper Employment Equal with discrimination regarding majority’s determination 9, with the cur supra. particular footnote 19. See period. length limitations of the majority considered merits also did holding evaluation The addition claim, summary judg- case, Colgan’s and reversed period this trigger the not limitations I Because Fisher Scientific. in favor ment applicable limitations holds that Court time-barred, I claim 626(d)(1) hold that would § days under 29 U.S.C. period was 300 summary judgment in have affirmed 633(b), by of the fact virtue U.S.C. § and 29 have would not Scientific and of Fisher favor cause action Pennsylvania provides a state merits. con- reached employment. I age discrimination fbr period impose is the discriminato act need not limitations an inevitable harm on act, consequences. Air ry employee not its United in order to start the limita- 553, Evans, Lines, 97 S.Ct. Inc. v. U.S. period. tions To illustrate that the mere (1977) (declining L.Ed.2d 571 possibility of future harm is sufficiently past the effects of the discrim characterize trigger concrete to period, the limitations “continuing inatory practice as a violation” analogized the Court the harm caused refusing give past the effects of the seniority system an unlawful to the harm practice independent present status for caused policy accident insurance period); of the limitations purposes Dela coverage bargained less than for. Id. at College v. ware State U.S. 907 n. 109 S.Ct. at 2266 n. 3. The Court (“[t]he proper 101 S.Ct. focus upon noted that the insured is harmed re- act, upon the time of the ceipt of policy with insufficient cover- upon the time at which the conse age, despite only the fact that there is quences painful.”) of the act become most possibility actually he will file a claim un- (quoting University Abramson v. Ha policy. Requiring der the that an em- (9th waii, Cir.1979)); 594 F.2d ployee actually know he will be terminated Technologies, Lorance v. AT T & during a requiring reduction in force is like (1989) 104 L.Ed.2d 961 an insured to actually know he will need to (violation seniority system occurred when file a claim policy. under his insurance adopted, plaintiffs actually not when majority attempts distinguish it). majority points demoted under As the by arguing case from Lorance out, distinguished these cases can be on the potential imposition harm from the of a They pro of their facts. nonetheless basis discriminatory seniority system is more guidance vide that this Court should not potential concrete than the harm ignore. negative performance evaluation. The dispute purport- that the Here there is no adoption Court concludes that the of a se- edly practice unlawful niority system employee’s rights fixes an August received in of 1986. I co-workers, vis-a-vis his but a agree majority’s position with the Maj. op. evaluation does not. 626(d) in 29 U.S.C. be- § ignores per- This conclusion the function gins practice to run when the unlawful formance evaluations serve the work only employee if the occurs has some sort place. Employers use these evaluations to practice notice that the could affect him. compare employees in order to make deci- patently require It would be unfair to demotion, regarding promotion, sions complaint prac- to file a about a do, termination. Performance evaluations tice which he has no idea would hurt his therefore, employee’s rights fix an vis-a-vis employment By holding status. that the his co-workers. period triggered by neg- limitations is not ative evaluation it does not where have majority great signifi- also attaches consequences employee immediate or the is cance to the fact that the evaluation indi- actually explicit an company not aware of sixty cated would be re-evaluated in policy under which the evaluation could ninety days, finding could however, discharged, cause him to be negative not have known that conse- majority expands requirement the notice quences might flow from the evaluation effect, holds, The court too far. opportunity improve before he had an receipt employment of an unlawful evalua- performance. Maj. op. at his 1419-20. pe- tion does not commence the limitations finding only This warranted if the would be employee riod unless the or knows should negative record showed that the evaluation he definitely know will be harmed. expunged Colgan’s person- from would be holding improved performance.

In nel file if he had majority disregards so however, negative Supreme contrary, To the Au- essence of the Court’s most re- gust case in have remained cent the area. The Court in Lor- 1986 evaluation would file, explicitly if discriminatory part Colgan’s personnel ance held that the even explains pro- It its failure to period. tions and had not been re-evaluated had been guidance by future pos- 1986. The vide in December of discharged that, eventually cause him admonition in Ricks Court’s sibility that it would employment or termi- discrimi- promotion, complaints regarding demoted to be denied by a vary eliminated not have been in circumstances that nated would nation arise subsequent positive regarding evaluation. widely, the determination period begins to run must the limitations period did By holding that the Maj. op. case-by-case made on a basis. be un commence because necessarily inquiry That the consequences that actual aware of the however, mean that fact-specific, does not evaluation, majori flow from the would guide it. can be no standards to there Colgan had a cause ty ignores the fact that ADEA based on of action under the holding Following Lorance’s that an un- itself at unlawful evaluation purportedly employment practice can commence lawful prohib it. The ADEA the time he received only period even if it causes the limitations could discriminatory practices harm, adopt I potential future would some status as an merely “affect an individual's employee” standard for de- a “reasonable employment as final employee,” as well negative performance termining whether a 623(a)(2). 29 U.S.C. Courts actions. See § period. starts the limitations evaluation recognized employee’s explicitly have during the time which an em- Specifically, discriminatory per action for a cause of ployee complaint must file a See, e.g., evaluation. Smith formance 626(d) pursuant to 29 EEOC U.S.C. § (D.C.Cir. Navy, 659 F.2d Secretary of begin employee when the receives an would 1981) (Title Rights Act of of the Civil VII suspects to have moti- evaluation he been seq., 2000 et creates a 42 U.S.C. § age, if that is such vated employee of an of action on behalf cause know that a reasonable discriminatory job perform who receives significant detri- that it could have some evaluation, cannot demon ance but who I impact employment on his status. mental him to that the evaluation caused strate tie the emphasize that this standard would job promotion). The specific denied a period of the limitations commencement relief in such an action is ex- appropriate employee’s knowledge reasonable at the em of the evaluation from the pungement The run- time he receives the evaluation. tying begin file. In ployee’s personnel period ning of the limitations could not be ning the limitations to notice of employ- tied to an event threatened action, majority final only hindsight. Employers ee’s status potential seems to assume permitted potential could not be to conceal consequence nega of a only actionable discriminatory acts and then be harm evaluation, ignores the fact the tive subterfuge. from suit their shielded other, ADEA creates a cause of action practices. non-final considering whether a reasonable em- perform- ployee would have known that a II. ance evaluation could have detrimental impact, the trier fact consider at would nothing prac- Today’s decision adds likeli- three The first is the least factors.2 significance tical to future determinations part will remain hood that the evaluation parameters the ADEA regarding the employee’s employment record for an strictly limits period. The Court Obviously, time. period of writ- extended giving no holding subjudice, to the case its permanency have more ten evaluations potential indication as to how concrete evaluations, possible it is for but than oral a evaluation would harm from part remain of an em- evaluations to trigger the limita- oral have to be order to may implicated situations. in different rele- be 2. These are the factors that I believe to be course, in this case. Of different factors vant decision, reaching In the ma improve.4 well. Sec- some time as ployee’s record jority on the fact that Fisher failed to relies evaluation formality of the ondly, Colgan should have been aware show that issued Evaluations be considered. would specific policy whereby employees evaluation company’s formal part of a records dis poor performance amount of de- greater a procedure reflect during charged first reductions force. may have a by employer liberation dispositive. if This fact should be Even not employee’s status impact on the greater explicit policy, unaware of this comments. extemporaneous than would employee in his situation reasonable consider trier of fact would Finally, the negative perform that a would have known em- was. An negative the evaluation how rating The results ance harms status. well-be- rating that is receives a ployee who range potential of this harm could of a likely to be aware average is more low receiving promotion. a to not employ- impact on his negative potential is ac- employee who status than ment Moreover, indisputably indi- the record ratings “excel- receiving customed fact, was, in cates that aware that rating of suddenly receives a lent” and him. August 1986 evaluation could hurt “very good.” merely through Colgan appealed that evaluation intra-company performance evaluation here, I would this standard Applying appeal process. He would not have both- by is time-barred Colgan’s action hold that if not appeal ered to the evaluation he did file an EEOC com- of his failure to virtue might that it hurt his believe receiving pur- days of plaint within 300 status. View- discriminatory evaluation.3 portedly Colgan, favorably to ing the evidence most as to of material fact is no issue

there III. aware that should have been whether he majority’s conten- Finally, I turn to the could have performance evaluation his last file a requiring tion that impact employ- on his had detrimental upon receipt of complaint with the EEOC ment status. discrimina- suspects to be an evaluation unquestiona the Court The record before disruptive impact on the tory have a would have should bly establishes place. Our reversal work harm him might known that this indicates that concerns in Ricks Court The evaluation day he received it. on the place disruption from re- potential work written. That it was also was formal and filings should not af- quiring early EEOC extraordinarily negative is illustrated analysis. period fect the limitations supervi Fisher’s testimony of one of that the limita- had held this Court Colgan’s August effect that sors to the plain- began to run when tions terminated, was the worst he had ever 1986 evaluation employment was based tiff’s specified requiring The evaluation even the rationale that partially seen. demoted, reassigned, or filed earlier would cause complaint to be Colgan could be “[w]orking relation- following result: if he company did separated from majority "im- pro that it adopted I 4. contends had the standard If the Court peri determining pose possible when the limitations at which an evaluation to draw line run, began had to address it would have negative od Colgan’s must then be deemed so should the standard contention Maj. op. the "reasonable at 1421. Under filed.” retroactively applied this action on the not be precise propose, no line employee” I standard equitable I do not be considerations. basis of case, particular be drawn. In this need strong presump Colgan can overcome the lieve negative that no reasonable evaluation was so newly application of retroactive tion in favor of it have failed to realize that could (see v. Price Wateh Gruber announced rules ouse, might negative consequences. have (3d Cir.1990)), but it purpose here for me to delineate serve no why this is so. the reasons sundered, if not and injured, ships will be attention litigation process will divert FIRE AND MARINE ST. PAUL responsi- job of proper

from the fulfillment INSURANCE COMPANY 256, 101 at 503 449 U.S. at bilities.” (quoting College, Ricks v. Delaware State LEWIS, Lewis, Nya Barbara Khalid Lew (3d Cir.1979)). By revers- 605 F.2d is, Mincy, Mincy, John Shahida Sheila Ricks, holding Supreme ing our Furey, M. Administratrix of the Estate rejected this rationale. Court Deceased, Furey, of John Dela Charles Authority Pennsyl may workload While it ease the EEOC’s River of ware Port Jersey, Kling limiting filings, today’s the number vania and New Andrew type holding needlessly another hoffer. introduces place disruption into the work —uncer- Lewis, Lewis, Nya Barbara Khalid given tainty. effectively has Court Lewis, 90-1810, Appellants in negative perform- employee who receives Mincy Mincy, understanding ance evaluation with the and John Shahida 90-1821, Appellants in that he will be re-evaluated at a later date employer time cannot and at a Authority Delaware River Port show he should have known that he could Pennsylvania Jersey, and New evaluation, discharged of that 90-1822, Appellants in any negative ability to file suit for consequences Furey, Sheila M. Administratrix relationship, during time Furey, Estate of John Charles Deceased, Appellant re- no matter how far the future those in 90-1823. occur. The has removed all sults Court 90-1810, Nos. 90-1821 to 90-1823. during restraints on the time Appeals, United States Court employer dragged can he into court under Third Circuit. consequences might ADEA for Argued May 1991. given ensue from an evaluation to an em- ployee age forty under condi- over Decided June judice. tions similar to those sub In so Rehearing Rehearing In Banc doing, only ignored has not Court July Denied recognize Court’s refusal Evans, “continuing theory in violation” Lorance, but it has rendered period meaningless

the ADEA limitations by enabling employees

in such situations must,

completely I circumvent it. there-

fore, today’s dissent from decision.

Case Details

Case Name: Jack Colgan v. Fisher Scientific Company

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 19, 1991

Citation: 935 F.2d 1407

Docket Number: 90-3659

Court Abbreviation: 3rd Cir.