*1 however, designed to be to eliminate favor itism manufacturers towards certain GRAHAM, John T. Appellant, distributors, so as prevent compe unfair
tition. To this end manufacturers are re F.B. COMPANY, LEOPOLD quired by the 1980 amendment to make the INC., Appellee. same terms and conditions available all distributors and to terminate those distrib No. 85-3166. good utors for only. Arguably, be United States Court Appeals, cause the distributing beer business is a Third Circuit. industry mature with established distribut ing relationships, purpose of the 1980 Submitted Under Third 12(6) Circuit Rule amendment could only be fully achieved Dec. applying the amendment to existing fran Decided Dec. agreements. chise But an equally plau argument sible could be made that
Pennsylvania Legislature decided to re
spect the established contracting rights of
private parties and therefore chose to deal problem
with of favoritism prospective
ly. Because amendment is not on clear face, its we say cannot that it was “clearly manifestly” intended legislature applied be retroactively. Rudolph —
Rosa, Inc. v. Latrobe Brewing
Pa.Super. —,
1985) (holding that the ninety-day notice
provision of the 1980 amendment to the
Pennsylvania Liquor Code does not apply
retroactively).
Our reluctance to apply the 1980 amend-
ment retrospectively, absent a legisla- clear directive,
tive reinforced the presump-
tion legislators that the were aware of the
strict construction regarding the issue of
retroactivity. Indeed, in enacting legisla- designed
tion to deal with similar franchise
problems involving gasoline distribution,
the Pennsylvania legislators expressly ad-
dressed the issue of retroactivity and chose
to limit the statute to prospective applica-
tion. See Pa.Stat.Ann. tit. (Purdon Supp.1984-1985). Thus, although
arguments can be made for applying the
1980 amendment to Liquor Code retro-
actively, the principles codified Pennsyl-
vania law dictate that the amendment be
given a prospective interpretation. judgment appealed will, from there-
fore, be affirmed. *2 cadre,
supervisory which included Graham Although and Green. Graham had re- generally performance ceived favorable re- tenure, during views his he was the one Pa., Krizner, for City, Evans Frank P. supervisor for elected dismissal. appellant. George Goyak, Leopold’s operations McAllister, Unkovic, David J. John C. manager, delivered the termination letter Pittsburgh, McClay, Shaw & Reed Smith day on the last of 1983. At that Graham Pa., appellee. for Graham, him, time, according told get you, lawyer “If I were and ADAMS, and GIBBONS STA- Before fight apparently this.” Graham took this PLETON, Judges. Circuit advice to heart. Alleging Leopold had violated THE OF COURT OPINION Act, Age Employment Discrimination in GIBBONS, Judge. Circuit (1982), it fired U.S.C. when §§ in brought suit the Federal appellant The him,1 against Leopold filed suit Graham District of for the Western District Court May 1984. The defendant moved alleging that his former em- Pennsylvania, summary judgment, which the district discharged him improperly be- ployer had February granted opinion court in an dated grant- district court age. The cause of 1985. See v. F.B. employer’s motion for ed the defendant (W.D.Pa.1985). F.Supp. 1423 plaintiff em- and the summary judgment, We reverse. ployee appealed. II. Employment Age Discrimination I. (ADEA) makes it unlawful for an em- Act defendant, 31, 1983, the December On discharge any ... be- ployer “to individual plain- Leopold Company, fired the
the F.B.
age.” 29 U.S.C.
cause of such individual’s
Graham,
tiff,
T.
who had
John
Graham.
623(a)(1)(1982).
alleges
that Leo-
§
years
twenty-four
worked
pold discharged
age.
him because of his
at the time of his dismissal was
and who
Analogizing the ADEA to Title VII
plant that
superintendent
plastics
1964, 42 U.S.C.
Rights Act of
the Civil
Pennsylvania,
Leopold operates in western
(1982),
seq.
the district court
2000e et
years
Leopold promot-
fifty-three
old.
§
three-step
ADEA suit the
employed in this
Green,
previously served
who had
ed James
Supreme Court
procedure developed
Leopold plant, to
foreman in another
as a
claims. Both
of Title VII
for assessment
At
position formerly
held Graham.
district
appeal argue that the
parties to this
forty-
promotion,
the time of his
Green
doctrine was
of Title VII
court’s invocation
years old.
one
agree.
Rodriguez v.
appropriate. We
eighteen months before
Approximately
(3d Cir.1977),
1231, 1239
569 F.2d
Taylor,
dismissal,
Company
the Muller
2254, 56
denied,
cert.
eye
Leopold. With an
towards
acquired
(1978).
L.Ed.2d 414
op-
Leopold’s
increasing
profitability
scheme, a
Supreme
Court’s
erations,
met
Under
officials
Muller
first must establish
plaintiff
personnel Title VII
of 1983 to consider
in the fall
discrimina-
case of unlawful
target-
prima facie
group these officials
One
cutbacks.
Corp.
Douglas
five-person tion.2 See McDonnell
Leopold’s
reduction was
ed for
appellant's
nothing
or in the
in the record
alleged
complaint
also
in his
1. Graham
question this decision.
us to
brief leads
the Civil
Leopold’s
violated Title VII of
actions
seq.
Rights
U.S.C.
2000e et
Act of
(i)
showing
that he
This
be done
claim,
dismissed this
The district court
class]; (ii)
he
belongs
[protected
...
to a
792, 802,
U.S.
granted
S.Ct.
summary judgment
Leopold.
See id. (1973);
see
also Texas
L.Ed.2d 668
1425-26.
Department
Community
Affairs
addressing
When
a summary judgment
253 & n.
101 motion,
appropriate
inquiry is
S.Ct.
1093 & n.
ments to be show port plaintiff_ for the We take Go- *4 yak’s plaintiff being comment about in a anyone alluded to only A. The time that protected age group layman’s sug- as a being my like anything that was— gestion age might that provide Graham’s misused, Goyak and that’s when was legal protections him with some extra not that he felt he made the statement others, to afforded rather than as an very strongly that I should take this age. intent to of discriminate because fight it. to court and We, therefore, plaintiff’s find evidence
insufficient as a matter of law to show either that defendant’s nondis- fact, yes. George As a matter of A. criminatory pretext, reason was a or that I in the Goyak did tell me that was discriminatory defendant intent in had group. protected age terminating plaintiff. Q. you him he meant And did ask what Leopold F.Supp. Graham v. F.B. by that? (footnotes (W.D.Pa.1985) by omitted). A. Well I knew what he meant age that I was an bracket the district court chooses to infer What just talked out on that couldn’t be simply not infer is not rele- or chooses the street. summary judg- of a vant to consideration (Deposition Appendix at 62-63 of
Joint Rather, appropriate in- motion. ment Graham). John whether, avail- quiry is from the evidence disposition, of the motion’s able at the time appeal is question The critical for this reasonably have inferred that jury could deposition testimony creates a whether this illegally against Leopold had discriminated genuine dispute a material issue of about ruling made no The district court comments, Graham. Goyak’s as re- fact—whether jury could not draw such an infer- that a Graham, ported by jury would allow a ence, deposition and in of Graham’s discharged infer that has law, of believe as a matter age.6 court held we of his The district because finding. support record not We enough to de- testimony was not that will reverse. summary judgment motion: feat the Yet, produced Goyak’s the decision. considerations that contends in its brief that
6. comments, contrary they imply, implication are irrelevant. is to the record. whatever such an According employer, Goyak fully apprised because Robert quite of It clear that Leopold president, Lyons, Indeed, made the former decisionmaking process. the record Graham, only his decision to dismiss ultimate Goyak who was reveals that it was Appellee’s at Brief is relevant. See intent responsible Graham. for the decision to release Goyak’s argument implication is that of this The (Deposition Appendix of Robert See Joint at 133 opinion dismissal is irrelevant be- of Graham’s (Deposition Appendix Lyons); at 166 Joint party deci- either was not to the George Goyak). sionmaking process or was not aware of the ADAMS, Judge, Circuit dissenting. Corp., Cir.1985). At point, it was upon incumbent majority The appellant holds that John to meet his ultimate burden of proving that Graham submitted sufficient evidence to explanation for his termination articu- support a reasonable inference that his dis- lated pretextual, and that missal by age was motivated discrimina- his dismissal tion, was motivated and that the considera- district court therefore age. tion of his erred in granting 450 U.S. at defendant’s motion for summary judgment. 1095; Bellissimo, Because I believe 764 F.2d at finding that a age discrimination could not reasonably upon be based the record The evidence of record shows that Gra-
presented here, I respectfully dissent. ham discharged by his employer dur-
ing the course
reorganization
of the
company
I.
brought
about
serious busi-
reverses,
ness
and that
replaced
he was
My disagreement
majority
with the
is not
James
Green.
age
41 was also
appropriate
over the
standard
review. I
within
group protected by
agree
summary judgment
may be
ADEA.
only
other
granted
proffered
only
genuine
when no
issues of
might give
material fact are
rise to an
dispute,
inference of
Wolk v. Saks
Avenue,
F.2d
deposition
Cir.
Fifth
1984), and that we must
all disputed
testimony
view
regarding alleged comments
*5
facts in
light
most favorable to the made
by
to him George Goyak, Leopold’s
party opposing the motion. EEOC v. operations manager,
Goyak
when
informed
Great
Co.,
Atlantic &
Tea
735 F.2d appellant
Pacific
that he
being
terminated.
69,
(3d Cir.1984).
81
agree also,
I
that the Goyak purportedly advised Graham to re-
grant of summary judgment may be af
tain a lawyer
“fight
and
also,
this.” He
only
firmed
if the
viewed,
so
according
appellant,
that
remarked
Gra-
would support
judgment
moving
ham was in
age
protected
bracket
party as a matter of law. Koshatka v.
the ADEA.
Philadelphia Newspapers, Inc., 762 F.2d
Assuming that
this testimony is accu
329,
(3d Cir.1985).
333
rate,
must,
as we
see Goodman v. Mead
In
appeal,
produced
evi-
Cir.1976),
Johnson
566,
&
(3d
F.2d
age 53,
dence
at
he was
dismissed
denied,
1038,
rt.
97 S.Ct.
ce
his replaced
younger
732,
(1977),
50 L.Ed.2d I do not believe
man. This evidence concededly was suffi-
of the other undisputed evi
cient to
out prima
make
facie case under
record,
dence in the
it is
sup
sufficient to
Age
Discrimination in Employment Act
port a reasonable inference that Graham’s
(ADEA), 29
U.S.C.
seq.
et
discharge was
by age
motivated
discrimina
v.
Duffy Wheeling Pittsburgh Steel
tion.
notes,
As the majority
see Majority
Corp.,
Cir.1984);
at 172 n. Goyak himself
v.
Massarsky
General
Corp.,
Motors
responsible
selection of Graham as
F.2d
Cir.1983).
However,
the supervisory employee to be dismissed.
when
defendant
Company prof-
App.
hardly
166. It is
rational to
fered a
reason
having
dis-
assume
Goyak’s
that
remarks were meant
charged appellant, the legal presumption
imply
Goyak
that
himself had recom
that Graham’s dismissal
was motivated
mended that
Graham be
terminated be
dispelled.
See Tex-
cause of his age,
as
Community Department
thus in violation of
v.
of Affairs
Indeed,
the law.
255 n.
testified without
n.
(1981);
records. at 188-90. PENNBANK and First Seneca Leopold, also testi- Bank, acting president of Appellants, chosen for dis- that had been fied compared his record solely missal because America, The UNITED STATES of and its supervi- unfavorably to of the other those agencies, the Environmental Protection 133,147. employees. App. at On this sory Agency and the Farmers Home Admin record, the inference believe Depart istration of the United States by con- termination was tainted Agriculture. ment of impermissible. sideration of his
No. 85-3066. II. Appeals, United States Court of job Leopold, Graham’s loss of Third Circuit. employed for over 23 where he had been Argued Oct. naturally sympathy. None- years, evokes theless, recognized that when it must be Decided Dec. it is
company upon falls hard times—as 31,1986. Rehearing Denied Jan. frequently must did—it clear collapse. reorganize or risk financial Un- restructuring usually en-
fortunately, such some of laying-off employees,
tails may have been devoted workers
whom distressing pros- as this
many years. As be, the ultimate survival of the
pect making may depend upon its such
company role of a federal
decisions. It is not the way struggling
court to stand *6 rally to efforts
business’ Pittsburgh Wheeling forward.
move
(Adams, J.,
Corp.,
Steel
dissenting). compa- suggest that such a
This is not statutes
ny is free to violate federal bar- I mere-
ring employment. view, my the record
ly state support reasonably does not
presented here terminate that the decision to
an inference by anything but eco- was caused reorganiza-
nomically efforts at motivated snippets to find If courts strain
tion. in- support highly questionable discriminatory they conduct not
ferences unduly necessary restruc- hobble
only will industries, hard-pressed but
turing by reconsider
eventually Congress controlling legislation. district court’s order affirm the judgment for the de-
granting summary
fendant.