Judson C. Brewer v. Quaker State Oil Refining Corporation Quaker State Corporation

compensation claims. The provision appears Pennsylvania Motor Vehicle Financial Re- provide “any remedies in arising claim (MVFRL) sponsibility Law provided an ex- an policy.” under insurance It is unclear first-party clusive remedy for bad faith deni- language from this § whether merely 8371 is by Using als insurers. statutory rules of relief, another count for gives or if it rise to a construction, this Court found that MVFRL separate cause of action litigation from on was intended to singularly be a specific ex- Pennsylvania insurance itself. claim case ception general to the provisions. faith bad law an shows intent to separate allow a ac- Pennsylvania’s We now construe Workmen’s tion on However, the “bad faith” statute. to Compensation Act in the way. same There- true, the extent that this is it is in conflict fore, although § indepen- create an with the intent Compensa- of the Workmen’s action, dent cause of cause action does tion Act. 8371 may Section create an inde- supersede not already statutes enacted con- pendent cause of action. Such cause ac- taining exclusive remedies. tion, however, inapplicable in the work- compensation men’s context. V. The bad faith statute has been held to summary, court district committed permit a number actions cases where no error in dismissing plaintiffs complaint the policy claim was not or could not be against the defendant. The claims asserted brought. In March v. Paradise Ins. Mutual are jurisdiction within the exclusive Co., Pa.Super. (1994), 646 A.2d 1254 compensation workmen’s scheme. Accord- permitted the court an insured to sue for bad ingly, the district court’s order of dismissal handling

faith claim, an insurance even will be affirmed. though the action on the claim itself be would by barred Accord, the statute of limitation.

Margolies v. Co., State Farm Fire and Cas. (E.D.Pa.1992). This does §

show 8371 creates a cause of action that exists separately independently BREWER, Judson Appellant, C. from a claim on the insurance contract itself. See, Romano v. Nationwide Fire Ins. Mut. Co., Pa.Super. 646 A.2d QUAKER STATE OIL REFINING (1994).6 CORPORATION; However, disregarding procedural these Corporation. limitations to underlying quite claims is dif- No. 95-3101. ferent than disregarding jurisdictional limita- United Appeals, States Court of tions. Our court has recently faced a similar Third Circuit. issue in Physical Gemini Therapy v. State Farm Mut. Auto. Ins. 40 F.3d 63 Argued Oct. 1995. Cir.1994), rehearing denied In that Decided Dec. 1995. case, we held that remedies gener- under the al bad faith insurance are statute not avail-

able arising in claims from automobile acci- injuries.

dent predicted This court that the Appellants argue UIPA, controlling Romano is but to enforce an arbitration award. Sim- jurisdiction. case, the issue of In that an insured ilarly, plaintiffs' if in this case receive an award brought suit to by enforce a umpire. compensation from judge, Workmen’s It included in attorney's this suit a claim fees court, need enforce such award they in this § under pay because refusal to such award bring could a bad faith claim for the insurer's constitutes bad faith under the Unfair Insurance refusing conduct pay already monies (UIPA). Practices Act Jurisdiction for UIPA vio- awarded compensation Workmen’s judge. lations is not vested in the courts. The decision not, however, Romano does jurisdiction confer in Romano focused on ap- whether courts could bad over faith in actions that could be ply UIPA determining standards in bad un- faith brought in that court. suit, however, § der 8371. The was not under Jones, (argued), Ogg,

Samuel J. Cordes PA, Ignelzi, Pittsburgh, DeSimone & Judson C. Brewer. (argued), Cotting-

Peter D. Post Robert B. ton, Reed, Smith, McClay, Shaw & Pitts- PA, burgh, Quaker Refining State Oil Quaker Corporation; Corporation. State Gregory, Equal Employment Robert J. Commission, Opportunity DC, Washington, amicus-appellant Equal Employment Op- portunity Commission. SCIRICA, ROTH,

Before: COWEN and Judges. Circuit OPINION THE OF COURT COWEN, Judge. Circuit Plaintiff-appellant ap- Judson C. Brewer peals grant the district court’s employer, Quaker in favor of his Refining Corporation State Oil Corporation (“Quaker State”), Age Employment Brewer’s Discrimination in (“ADEA”) claim, (1988), § Act 29 U.S.C. pendent the dismissal of his state-law brought claim Michigan’s under anti-discrim- statute, ination the Elliott-Larsen Civil Rights Act, §§ Mich.Comp.Laws 37.2101- 2804. Because genuine the record reflects a regarding issue of material fact whether nondiscriminatory State’s asserted discharging pretextu- reasons for Brewer are al, we will entry reverse the district court’s summary judgment in favor of State and remand the matter for further proceedings.

I. Brewer worked for State as representative from 1968 until the time of his in March fifty- three. He Pittsburgh worked office until it During closed the course of Pittsburgh, his Brewer was supervised by manag- two different division ers, Bruce Drummond and Michael O’Don- During tenures, nell. respective their both average for 1987 to 1991 overall cer- encountered and O’Donnell Drummond was 2.9. performance. problems with tain that Brew- stated example, Drummond For ninety-day probation, At the end they run out had complained that clients er’s that Brewer repeated his concerns Pfauser representa- their sales not seen or had of oil territory little time spending too January O’Don- time. in some tive communicating cus- adequately and not probation ninety-day on a placed Brewer nell probationary time Brewer’s At this tomers. deficiencies, includ-

for similar sixty for an additional period was extended running out of complaints about ing customer 18, 1992, February Pfauser days. On wrote projects, inaccurate- oil, follow-up with poor documenting per- to Brewer á memorandum days, work paperwork, short incomplete including mis- problems, formance Shortly after organization. of lack and orders, his and failure to advise processing period, probationary his completed Brewer problems. accounts of credit division. to the Detroit transferred he was appraisal, challenged Pfauser’s Brewer supervised Manager Paul Pfauser District im- commenting performance his had gave In 1990 Pfauser in Detroit. Brewer that Pfau- also has claimed proved. Brewer ratings, but acceptable performance Brewer problems and that the “nitpicking,” ser was Pfauser planning. poor him for criticized misunderstandings, petty of were the result more work that he needed to Brewer advised really problems at Nonethe- all. or were not higher set accounts and with his client closely February less, days that followed the the of 1990 At the for himself. end standards memorandum, 18, sought and Pfauser 1992 exceeding bonus a sales for received Brewer approval to terminate em- obtained year. quota for that company’s sales the discharged on March ployment. Brewer 9,1992, The district and lawsuit ensued. 1991, second shortly before his May In summary judgment against granted court supervision, Pfauser’s under review annual Brewer. facets that various notified Brewer Pfauser improvement. required performance of his more effi- II. Brewer to be counseled

Pfauser requests both from cient, follow-up with to jurisdiction pursuant to 28 We have U.S.C. management, and to from and his customers dis- the final order the § 1291 to review completeness of and improve the timeliness court, jurisdiction under exercised trict which in' formal reports. In his evaluation his sales 626(c)(1), §§ and § 1331 28 U.S.C. 29 U.S.C. 1991, marginal or un- received Brewer June pur- 1343(a)(4), jurisdiction supplemental and categories. ratings in all acceptable § 1367. to 28 U.S.C. suant 1991, on a placed August Brewer In grant court’s of a district On review de- ninety-day probation for the test summary judgment, apply we same time, criticized Pfauser At ficiencies. applied have initial should the district court areas of poorly the performing for Brewer Higgins, 45 F.3d & ly. Sempier v. Johnson In organization. communications client — denied, U.S. -, (3d 724, Cir.), cert. 727 1991, again exceeded Brewer December (1995). L.Ed.2d 854 115 S.Ct. another quota and received company’s sales only when appropriate Summary judgment is only salesperson Brewer was bonus. fails to demonstrate the admissible a receive such bonus region to the Detroit fact material genuine a issue 1990 and both judgment as moving party is entitled 56(c). Fed.R.Civ.P. When matter of years prior law. file for the personnel the burden nonmoving party bears However, disputed is not was lost. to 1990 trial, moving party persuasion at performance evaluation mean that Brewer’s by summary judgment meet its burden “3” out of through 1990 was from 1987 rating nonmoving party’s evidence showing “compe- “5”, translates into possible persua carry its burden is insufficient performance stan- tent” Catrett, Corp. v. Celotex sion at trial. Factoring in his evaluation dards. 317, 322-23, 2548, 2552-53, U.S. 106 S.Ct. 91 at 728. opportuni The then has the (1986). Thereafter, ty L.Ed.2d 265 the nonmov- demonstrate stated ing genuine reason, party creates material issue of reason was not its true merely but — provides fact if it Hicks, sufficient pretext evidence to allow for discrimination. U.S. jury at -, 2747; him reasonable find for at trial. Sempier, S.Ct. at Inc., Liberty Lobby Anderson 242, 248, 106 2505, 2510, S.Ct. 91 L.Ed.2d (1986). record, reviewing the court A. give nonmoving party must the benefit of The district court dispo held that the all reasonable inferences. Sempier, 45 F.3d sition of stage this case turned on the third 727; Colgan v. Fisher Scientific Douglas analytical McDonnell frame Cir.), work because Brewer pri- had established a U.S. 116 L.Ed.2d 330 discrimination, ma case of facie Quaker State had articulated non-discrimina tory discharge. reasons III. Corp., State Oil Ref. prohibits age ADEA discrimination (W.D.Pa.1995). agree 681-82 We employment against any person age over for the analysis up district court’s point. to this 623(a)(1). ty. § pro U.S.C. Because the undisputed It is that Brewer is a member against age hibition discrimination contained class, protected a discharged by Quaker was text, tone, in ADEA the is similar in and State, replaced by and was an individual not VII, purpose to that contained in Title courts Moreover, protected within the class. Brew routinely developed look to law under Title qualified er position was for the of sales guide See, inquiry VII to under ADEA. representative. Quaker He- worked as a Int’l, e.g., 788, v. Sinclair 766 F.2d Maxfield representative State sales twenty-three for (3d Cir.1985), denied, 1057, cert. 474 U.S. years. During years job, his last five on the (1986). 796, 106 S.Ct. 88 L.Ed.2d 773 We he received overall evaluations that translat evidentiary follow the framework first set “competent” by Quaker ed into per by Supreme forth the Court in McDonnell formance Accordingly, standards. Brewer Green, Corp. 792, Douglas v. 411 U.S. prima has a age established case of facie 1817, (1973), 36 L.Ed.2d 668 subse discrimination. quently in refined Department Texas Burdine, State has also Community 248, established le Affairs gitimate, non-discriminatory (1981), 101 S.Ct. reasons ter L.Ed.2d for and minating employment. recently in Mary’s clarified Pfauser St. Honor Center — Hicks, -, continuous prob documented U.S. 113 S.Ct. lems, (1993). including poor follow-up on customer L.Ed.2d requests, poor communications with clients order prima to establish a facie management, and with spent too little time in (1) case, Brewer must show that is he: over territory, ambiguous late and sales (2) 40; qualified position for ques the reports. (3) tion; employment suffered an adverse (4) decision; and replaced by was a suffi B. ciently younger person permit an infer age ence of Sempier discrimination. v. John must We next determine whether (3d Higgins, Cir.), son & Brewer has met his demonstrating burden of — U.S. -, 115 S.Ct. that a factfinder could allegedly find that the 132 L.Ed.2d 854 showing This legitimate proffered cre reasons for his presumption ates only discrimination that pretext, were discrimination employer by can stating legiti rebut order to survive State’s motion for nondiscriminatory mate summary reason for the ad judgment. To defeat a —Hicks, employment verse decision. U.S. motion based on a defendant’s at -, 2747; 113 S.Ct. at Sempier, proffer nondiscriminatory reasons, plain- First, testimony disputed the showing of Brewer’s own (cid:127)prima made a has tiff who facie evidence, problems raised Pfau- significance of the point to some need discrimination circumstantial, challenged extent from which a factfin- ser. While Brewer or direct (1) degree rather than reasonably either: disbelieve of his deficiencies der could reason; existence, legitimate specific articulated their Brewer testified employer’s (2) discriminatory misplaced or examples that an invidious of Pfauser’s errant believe motivating likely than not a more evidence amounts to more reason was criticisms. Such employer’s ac cause of the subjective opinion perfor- of his or determinative than his Perskie, 763-64 Second, tion. Fuentes v. provided mance. Brewer Cir.1994). may infer from The factfinder selling nearly that he had succeeded in oil for plaintiffs prima employ the combination twenty-five years in the facie rejection case, own of the State, as well as its years, and for the last five he was nondiseriminatory rea proffered “fully acceptable” by rated son, unlawfully discrimi employer Third, provided evi- his evaluations. merely against plaintiff and nated surpass- dence that he received bonus illegal act the artic trying conceal its quota in ing his sales 1990 and —Hicks, at -, U.S. ulated reason. See only salesperson region the Detroit Thus, if has at 2749. 113 S.Ct. quota years. exceed his or those hei: pointed sufficient to discredit to evidence evidence, district court discounted this reason, to sum proffered survive defendant’s pick and reasoning that Brewer cannot plaintiff need not also mary judgment will choose which standard he dis additional evidence of come forward with that “al- meet. The district court reasoned beyond prima his or her crimination facie average rating numerical though plaintiffs Fuentes, case. somewhat contradic- and sales bonus be termination, employer’s proffered the the tory To discredit with the fact of his reason, simply they give show that plaintiff the cannot not believe that rise court does “weaknesses, wrong or mistak implausibilities, decision was inconsis- the such en, dispute tencies, incoherences, in factual issue is contradictions’ since the or discriminatory motivated Quaker explanation a animus that a whether State’s reasonable employer employer, rationally explana- not the is find the whether factfinder could the Brewer, “wise, shrewd, prudent, competent.” 874 unworthy of credence.” tion Fuentes, Wolf, (citing disagree Ezold v. “some- F.Supp. 32 F.3d at 765 at 682. We the Solis-Cohen, Block, contradictory” does not dem- Schorr & evidence what — (3d U.S. -, Cir.), summary 114 of fact. On onstrate a triable issue (1993)). Rather, 88, 126 weigh the court’s role to judgment, L.Ed.2d it is not the such is nonmoving plaintiff disputed must demonstrate and decide which inconsistencies, “weaknesses, implausibilities, probative. Sempier, 45 F.3d more incoherences, em three or contradictions in the received a bonus The fact that Brewer only for its proffered legitimate reason was fired and was the ployer’s months before he region could ra in representative that a reasonable factfinder the Detroit action sales credence, unworthy contradictory tionally of a bonus is find them who received such employer act for im- Quaker that the did not that the most hence infer State’s admission non-discriminatory job performance reasons.” is sales. portant asserted] standard of [the (citations Fuentes, inter F.3d at 765 Vice President of State’s Executive omitted.). Ezold, quotations nal See Sales, Marshall, that sales stated William burden of (“plaintiff has the F.2d at evaluating “extremely important in is volume employer’s articulated casting doubt an represents “the best sim- salesperson,” and a decision”) (quot an reasons for performance. salesperson’s ple measure” of a Corp., 940 ing Billet v. CIGNA Quaker State’s counsel App. at Cir.1991)). argument oral acknowledged this fact at also Indeed, of the volume before this court. challenged has measure of may always primary be the discharge. reasons for his asserted State’s salesperson’s performance. a Kiliszew had demonstrated success in other areas of See Co., Transp. job. employer It ski Overnite was also clear that the (W.D.Pa.1993) (evidence person legal analysis that a considered to be the critical performed category performance well the traditional role review. dis- salesperson precluded questioned trict court had wisdom the despite employer’s plaintiff standards, claim that employer’s partnership and we time-management suffered from efficient de not “[i]t held that for the district court to ficiencies). job segregate To determine that Ezold’s skills in areas other categories organi into the neat sales and legal analysis sufficiently than made her reality zational skills defies the of the role of qualified partnership.” for admission to the salesperson company. in a distinguishable Id. at 528. This ease is on its Ezold, facts. suffered defi- recognized employer may We that an have ciencies the one area deemed critical any discharging reason or no reason for an Here, contrast, employer. Brewer had employee long discriminatory so as is not a problems aspects job. some a few reason. Yet, performed he well in the one area super-personnel do not sit as a [W]e de- by Quaker perfor- deemed State to merit a entity’s partment that reexamines an busi- genuine mance bonus. This raises issues ness decisions. No matter how medieval perfor- about the credence of practices, high-hand- firm’s no matter how explanation. mance-based process, ed its decisional no matter how managers, mistaken the firm’s the ADEA questionable why company It is also Rather, inquiry does interfere. our only salesperson would fire the to receive employer gave limited to whether the an response annual consecutive bonuses in explanation honest of its behavior. organizational the same deficiencies that the McCoy Broadcasting v. WGN Continental employer tacitly accepted had for over two (7th Cir.1992) (cita- During twenty-three years decades. omitted). quotations An tions and internal State, Brewer worked he consis employer may legitimate have reason for tently high despite sold volume of oil firing employee nothing that has to do repeated aspects job criticisms of other of his employee’s performance with that core performance. It was not until late in his Nonetheless, job. functions of his or her our Quaker career that State turned the criti is role to determine whether a factfinder performance cisms of Brewer’s into the basis reasonably employer’s could find that for A adverse action. reasonable factfinder unworthy stated reason is of credence. In Quaker could view belated on State’s reliance case, pale Brewer’s deficiencies beside these criticisms as evidence that tends to consistently good performance, his in- sales pretext. Analysis show See Levin & explicably supervisor’s unaccounted for in his Inc., (2d Technology, Cir. negative evaluations. A factfinder could find 1992) (employer’s plaintiff claim that was ter implausible Quaker it that would have “poor minated because of his attitude” did fired Brewer for such deficiencies when he provide basis for by was successful in the sole area identified plaintiff’s where there was that Quaker performance State’s own incentive many years “irascible nature had for been program —sales. by accepted superiors”); his co-workers and Ezold, In 983 F.2d at we held that a Giacoletto v. Amax Zinc (7th Cir.1992) (evidence finding district court had erred in supported that the 426-27 employer’s explanation denying pro- finding pretext despite employer’s claim plaintiff pretextual. motion to plaintiff “poor interpersonal was had employer partner- claimed that it had manager” plaintiff denied skills as a where the “had ship plaintiff to the kept supervisor years because of her deficien- been on as a for 14 legal analysis. despite cies in the area of personality There was his abrasive and because question ability produce”); no that the suffered from of his Blalock v. Metals Trades, Inc., (6th Cir.1985) area, although serious in that shortfalls she (fact legitimate con- 26-27. employer had Brewer asserts this remark is that the plaintiffs performance Quaker at the with the circumstantial evidence of cerns State’s not determinative time of his preference younger was workers. The dis- performance” that “same level of had where trict court determined Corn’s statement its acceptable employer to the until been remark, “stray was a unconnected with and criterion). protected consideration of decision-making process remote from the testimony disputing significance Brewer’s which discharge.” resulted Brewer’s twenty-three alleged problems, Brewer, consistently good performance years of stray by We have held that remarks non- and recent merit bonuses cast sufficient by or decisionmakers decisionmakers unre- contention that doubt State’s process rarely given lated to the decision are job discharged poor because of Brewer great weight, particularly they if were made company which had areas temporally remote from the date of the deci- long overlooked or tolerated.1 Ezold, agree sion. 983 F.2d at 545. We provided evidence that in Brewer has also the district court that the Corn statement is Weaver, August of Wanda “stray by remark” made a non-decision- personnel manager, wrote a memo- State’s temporally maker and remote from the deci- summarking to Pfauser randum sion to terminate Brewer. The comment years. In performance for last fifteen years made almost two before Brewer’s the memorandum Weaver noted that “Judd supervi- March 1992 termination. Brewer’s old, years presents prob- another is 53 sor testified that could he not recall ever App. court deter- lem.” at The district statement, seeing hearing or Corn’s merely mined that this statement indicated there is no evidence of a causal link between that, terminated, if Weaver’s awareness Corn’s statement and Brewer’s termination. may age suit. file an discrimination Though the Corn statement should not be may very Although jury well conclude given significant commanding weight, or merely reflects an aware- that this remark trial, may provide some relevant evidence legal obligations, the ness of subject of discrimination. have held that a su competing is also inter- We statement interpreta- pervisor’s about pretations. Another reasonable statement “problem” managerial policy was a employment practices tion is summary judgment, State. On we corporate relevant show the culture draw all reasonable inferences in favor must company which a makes its deci party. Drawing nonmoving the infer- sion, be used to build a circumstan favor, statement ence Weaver’s tial Abrams v. case discrimination. See discriminatory to show a animus. tends Inc., Lightolier, Cir. whole, must, viewing as a as we the record 1995) (discriminatory statements nondeci- probative, we conclude that the statement is properly sionmakers used to build a circum jury’s consid- and should be submitted a discrimination); stantial case of Lockhart eration. Westinghouse Corp., Credit 879 F.2d (3d Cir.1989) (same); Josey see also v. John produced that Brewer next evidence Hollingsworth Corp., R. 996 F.2d Corn, March Jack Chief Executive Offi- (3d Cir.1993) (court may State, consider as circum Quaker cer of discussed two new exec- atmosphere in which stantial evidence the company utives in the newsletter. He stat- ed, employment company made its deci young “two of our star men in their mid- sions). age group App. 40s. That is our future.” presented was also

1. The dissent states that Brewer has “done noth- unrefuted evidence past performance twenty years ing proffered Quaker to rebut” State's non-sales Brewer's firing to that for which he was fired. It was reasons for him. Dissent at 337. The identical tes- not until late in his career that the criticisms dissent has overlooked evidence of Brewer’s timony specific examples performance were into reasons in which he related Brewer's turned directly goes supervisor's misplaced termination. This evidence errant or criticisms. for his his subjec- discrediting related to State's non-sales Such evidence amounts more than firing opinion job performance. Brewer. tive of his Of reasons course. pro may party prevented that the that has be used as evidence dence Corn’s statement out of the well-founded fear managerial policy. The remark was not duction did so by made a low-level would harm him. Gumbs an off-hand comment that the contents Harvester, Inc., Rather, supervisor. the comment was made v. International (3d Cir.1983); by Cherkasky in a written the Chief Executive Officer United States Cir.1958). Co., major company “When a execu- 259 F.2d 89 newsletter. Meat ‘everybody corpo- speaks, listens’ tive apply, it is essential that For the rule hierarchy, rate and when the executive’s party’s question be within the the evidence disadvantageous a prove to be comments Gumbs, Further, 718 F.2d at 96. it control. litigation posture, company’s subsequent it appear that has been an actual must there if compartmentalize this executive as cannot withholding of evidence. suppression or company nothing more to do with he had unfavorable inference arises when the No janitor policy than the or watchman.” Lock- circumstances indicate the document hart, 879 F.2d at 54. question has been lost or acciden- article statement State claims Corn’s tally destroyed, pro- or where the failure to at all be should not be considered evidence properly for. duce it is otherwise accounted too innocuous. The statement 156(2); cause it is § generally 31A See C.J.S. Evidence company’s age group (“Such that the mid-40’s is the § pre- Evidence 29 Am.Jur.2d however, future indeed be considered truism— arises, sumption only or inference any the future of business lies with its rela spoilation when the or destruction evi- [of See, tively e.g., young employees. Smith v. intentional, and indicates fraud dence] (4th Cir.1980) Flax, 1062, 1066 truth, suppress it desire to (statement lay that “future in the does not arise where the destruction was truism, young Ph.D’s” was a and not evi of routine with no fraudulent in- matter discrimination.). Quaker age tent.”). dence of praising youth further asserts that does court file The district found against not more mature work indicate bias in connection with the death of was lost See, Co., e.g., ers. Mesnick v. General Elec. attorney, State’s in-house and was (1st Cir.1991). denied, destroyed intentionally. Quaker 2965, 119 985, 112 L.Ed.2d 586 attorney in-house died of a terminal illness could While factfinder find Corn’s possession after he took of the file. age comment too abstract to evince discrimi that it has continued to search State avers nation, may jury also be considered file, say for the but to no avail. We cannot corporate culture in as evidence of the applied legal court the district the incorrect decision to Brew standdrd, findings clearly nor were its factual made, circumstantial er was pro The destruction or erroneous. failure age discrimination. We conclude that many duce the record could have been due to Corn statement is relevant evidence of See, e.g., reasons unrelated to the lawsuit. discrimination. Rogers Eng’g v. Exxon Research & (3d Cir.1977) (refusing to draw IV. an adverse inference where destruction of a argues Brewer next that the district lawsuit), diary could have been unrelated to the refusing court erred in to draw an adverse 1022, rt. 434 U.S. 98 S.Ct. ce 749, inability inference from State’s (1978). L.Ed.2d 770 The 54 district produce pre-1990 personnel file. properly court refused to draw an adverse general principles concerning The the infer inference. ences to be drawn from the loss or destruc tion of are well documents established. V. When the contents of a document are rele case, brought age in a an vant to issue the trier of fact Brewer has also discrimi- may generally Michigan Rights receive the fact of the docu nation claim under the Civil Act, §§ nonproduction Mich.Comp.Laws ment’s or destruction as evi- 37.2101-2804. The

335 1070, that Brewer failed to es- 942 F.2d at district court held and not the McDonnell standard, Douglas prima closely case on his state law which more tablish fits facie provided Accordingly, he no evidence that the facts of this claim because case. the dis- Pfauser, Quak- any entry other at trict summary judgment court’s decisionmaker State, predisposed was er discriminate the state law claim will be reversed for the Brewer, against age. the basis of Brewer on same reasons that we will reverse the sum- mary judgment at 874 entered on ADEA claim. evidentiary pro burdens for ROTH, Judge, Dissenting: Circuit ceeding age on an discrimination claim under I respectfully agree I dissent. cannot Rights Act are the the Elliotb-Larsen Civil his sales as used in ADEA eases. same those Mc litany specific rebuts State’s rea- 1155, Camp Corp., v. Donald Union sufficiently sons for termination (6th Cir.1990). to raise a However, in contrast to genuine issue of fact. I material would af- law, Michigan under law a federal firm the district court.1 prima case demon establish facie (1) strating that: he is a member of the majority, Unlike the I believe that (2) class; employ affected that some adverse analyzed properly district court the case (3) him; against ment action was taken particular, reached a correct result. I person responsible for this adverse action disagree majority’s with the rebuke that the against predisposed per was to discriminate weighed disputed district court evidence. (4) class; sons in the that the affected Majority See I conclude that person responsible actually pre acted on this court, granting summary district judg- disposition plaintiffs detriment. Pitts v. ment, properly focussed on Rental, 1067, Michael Miller Car articulated reasons termination and de- Cir.1991). (6th 1070 n. termined that these reasons were an ade- quate, non-discriminatory basis for plaintiff may prima A also establish a facie along even when considered with Brewer’s Michigan using case under law the traditional acknowledged sales record. federal law standard set forth McDonnell 802, Douglas, at 411 U.S. 93 S.Ct. at 1824.2 summary judgment inquiry Our flows from Douglas The McDonnell standard has been Supreme Court’s decision Celotex adopted by Michigan Supreme Court. Catrett, 317, 2548, Corp. v. 477 U.S. 106 S.Ct. Camp Corp., McDonald v. Union (1986), applies equally L.Ed.2d (6th 1155, Cir.1990); 1159-60 Matras Douglas to McDonnell discrimination cases. Co., 675, Amoco Oil Mich. 385 N.W.2d Healy See v. New York Ins. Life Cir.1988), (1986). Therefore, Michigan law 1219 n. 3 cert. de provides establishing prima case facie nied, 109 S.Ct. age differing discrimination varies (1989). Celotex, L.Ed.2d 1004 Under situations, factual and the standard that best district court must evaluate the nonmovant allegations applied. fits the factual should be plaintiffs evidentiary showing to determine Matras, 590; Lytle Malady, 385 N.W.2d showing genuine whether the raises issue Mich.App. 530 N.W.2d past of material fact. This court’s discus degree proof required sions of the applying only The district court erred in survive in McDonnell Pitts, prima Douglas recognized standard set forth cases have the need for facie III.B, prima applied 2. A case as in the dis- and I would not reach Part V. Because I facie requires showing context that the crimination grant would affirm the district court’s of sum- (1) class; plaintiff: protected awas member of a mary judgment State on the federal (2) action; subjected was to adverse claim, I the state to the would remand claims (4) (3) qualified position; for the jurisdiction district court to determine whether replaced by younger person. a pursuant should be retained to 28 U.S.C. 1367(c)(3). § II, III.A, I, quarrel 1. I with have little Parts or IV majority's opinion. disagree of the I with Part remaining evidence are unreason- from his evidentiary evaluation. Fuentes type of treat able. provides our most extensive v. Perskie (3d subject. 32 F.3d 759 Cir. of the ment majority opinion provides a fair sum- The 1994). summary judgment, avoid “[T]o facts of this case. Brewer was mation ... a factfin- evidence must allow plaintiffs significant perfor- following a series fired reasonably infer that each of the to der letting problems, such as his custom- mance nondiscriminatory proffered rea failing complete to or run out of oil and ers post either a hoc fabrication sons was paperwork. To demonstrate even file actually motivate the em otherwise did not pretextual reasons were and these (that is, proffered reason ployment action firing for his discrim- the real reason (citations omitted) at 764 pretext).” is a Id. ination, pieces principal three Brewer offered (first added); Sempier v. emphasis see John first, general performance evi- of evidence: Cir.) (3d 724, Higgins, 45 F.3d son & positive person- comments on dence such as implicitly infer (adopting the “reasonable selling a nel evaluations and sales bonus — denied, U.S. -, standard), cert. ence” termination; years prior to oil in the two (1995); 2611, L.Ed.2d 854 ac 115 S.Ct. second, by personnel memorandum written a 50, Corp., Siegel Alpha Wire 894 F.2d cord Weaver, Quaker Manager of State’s Wanda denied, Cir.), 496 U.S. cert. Compensation, and to Employment and sent (1990); 2588, 110 L.Ed.2d 269 Sorba v. time, S.Ct. Pfauser, supervisor at Brewer’s Co.,

Pennsylvania Drilling personnel which summarized Brewer’s evalu- (3d Cir.1987), 1019, 108 approved “performance ations since submitted, 98 L.Ed.2d 679 and ob- plan” that Pfauser had served, “[ajlso, old, years Judd is 53 Fuentes, that “this stan- we observed third, presents problem”; another plain- places dard difficult burden Corn, comment Jack then chief executive requires It tiff.” 32 F.3d company, company officer of the news- “present sufficient evidence paper referring to two of his new “seconds-in i.e., meaningfully question, throw into young star command” as “two of our men prof- ... upon, doubt cast substantial [tjhat age group ... their mid-40s is our added). (emphasis reasons[.]” fered Id. ” future.... Elsewhere, we have described the standard clarity, analyze I will each of Coplay terms. Ce- For similar See Seman (3d Cir.1994) evidentiary proffers independently. Brew- ment (“our acceptable job per- requires general er’s evidence of standard consideration evi- formance forms the nub of the case. The whether or not there is substantial employ- support in the record to Weaver memorandum and the Corn com- dence and, believe, age he far weaker I insuffi- ee’s contention that ‘but for’ his ment are summary judgment discharged” (citing have cient to stave off absent would not been Corp., v. CIGNA 815 Brewer’s evaluations sales bonus. Billet (3d Cir.1991))). alleges that it fired Brewer case, present litany specific performance problems.

In the Brewer did not cast reasons, profferred responds generic with evidence of his doubt on State’s i.e., allege they generally not true. successful as a sales- he did not were they majority man. He contended instead that were inade- believes “weaknesses, good showing im- quate because he was a reveals sufficient inconsistencies, incoherences, plausibilities, salesman. explana- or contradictions” in State’s agree. I cannot that Brewer’s evidence produce tion a triable of fact. issue Ma- Douglas the McDonnell meets jority agree. I do general perfor- standard. His evidence, general good perfor- in connection mance considered specific reasons for dis- mance is insufficient to cast doubt on the charge, genuine specific undisputed reasons for termi- is insufficient to raise issue fact; by Quaker he draws nation articulated State. Put sim- material inferences

337 get general performance ply, good salesmen fired for non-sales to evidence rebut a proffered proffered discharge. Although reasons. related reason we reásons, nothing repeatedly recognized employees and Brewer has done have that such rely performance good performance to them. Good alone will can on evidence rebut of -wrongful pretext, of termi show employers not raise an inference those cases the Schering-Plough inevitably poor v. have performance nation. See Turner relied on (3d Cir.1990) 335, See, Corp., e.g., 343-44 as a reason for termination. Wal Inc., (3d posi 491, (observing proximity that close between dron v. SL Indus. 496 Cir.1995) (rebutting poor performance tive and terminations will not evaluations pretext); necessarily charge charge necessity); raise an inference of and of economic awards, Healy, (noting Sempier, F.2d at 1215 that 45 F.3d at (rebutting per 860 730 commendations, promotions sug and do not formance evidence where non-performance gest countervailing given); Colgan weaknesses do not was sole reason v. Fisher (3d Cir.) important exist or would not be in future 1422 Scientific evaluations). (in carry banc), out failure 502 112 U.S. (1991) specific dispositive, regardless of (allowing tasks his S.Ct. 116 L.Ed.2d 330 general proficiency. employee Pierce v. poor using New Process to contest evaluation (W.D.Pa.), co-workers); Company, F.Supp. testimony Siegel Alpha of v. (3d Cir.1984) (“The Wire, 749 F.2d 27 absence (rebutting charge F.2d at 51-52 of aff'd Sorba, complaints performance, poor performance disloyalty); of about the ab commands, plaintiffs (rebutting charge sence of earlier F.2d at 205 poor perfor of mance); (rebut opinion fight ... Chipollini own are all irrelevant of 814 F.2d at 900 charge ... poor performance pri direct order undeni of ting based out.”). ably carry marily credibility employee). failed to .on Had poor perfor State relied on Because Brewer failed to offer evidence discharge, mance as its reason for I would reasons, that addresses sum confidently join majority in finding mary judgment properly granted. See reason rebutted and in hence a reasonable Geary Virgin Visitation Blessed pretext. ference of That is not the case: School, Mary Parish F.3d Quaker State terminated Brewer because Cir.1993) (affirming summary judgment omissions, specific failures and not because of employee where did not contest reason for generally inadequate performance. (affirm dismissal); Turner, 901 F.2d at 344 Nevertheless, ing employ analysis, where “[the some level of tending performance always ee] has offered no evidence to show will be rele- problems though Quaker serious unattended did not vant. Even State did not jurisdiction se, rely poor performance per exist or that [the within em we must ployer’s] explained other criticisms at the time of the still consider it. As we in a foot- Fuentes, foolish, unjustified.”); impru- ... decision were Keller v. note “a decision Bluemle, (E.D.Pa.1983), dent, incompetent by comparison or (3d Cir.1984) aff'd, (noting employer’s operation 735 F.2d 1349 usual mode of can ren- inconsistent, employee explained implausible, or deficiencies but did der weak.” 32 them); Cola, firing contest see also Fowle v. & F.3d at 765 n. 8. an extreme- C C Because (3d Cir.1989) (affirming ly qualified employee 868 F.2d 59 sum and effective could be “foolish, mary judgment employee incompetent by imprudent, where failed to re com- qualifica parison employer’s op- but of lack mode of reason usual n tions); eration,” Spangle Valley Forge summary judgment Au court on Sewer (3d Cir.1988) thority, (affirming inevitably employee perfor- must consider grant summary judgment employee where mance.

presented quali no evidence to show he was evidence comes to job). fied for the Fuentes, naught. unless Under our rule position employer poor performance as in this case differs from the relies on previous justification, employees eases have the evidence of where used articulated

338 after change in circumstances to make rieneed must be sufficient good performance “foolish, long- no previous im- deficiencies were appear which his employer’s decision contradiction here. accepted. There is no incompetent.” Neither er prudent, or inconsistent, medio- often sales bonus nor contradiction, to create a In an effort cre, occasionally complementary evalua- but sales majority makes much of Brewer’s Turner, 901 See tions meet this burden. ex- combined with a State bonuses of fact (refusing at to find issue 343 is sales volume ecutive’s statement reviews); Healy, mixed employee’s from evaluating a “extremely important in sales- (affirming grant of F.2d at 1215 Unfortunately, Majority at 331. person.” and at despite generally positive majority’s con- propositions in the the two evaluations); performance see worst mixed night. pass in the contradiction structed Fowle, (discounting posi- at 868 F.2d also A, was fired de- Proposition that Brewer evaluations). company A is performance tive simply not spite good figures, does “foolish, incompetent” imprudent, or not B, volume Proposition that sales contradict lets his custom- it fires a salesman who when evaluating “extremely important in oil, spend sufficient run out of fails to ers Descriptives “ex- salesperson.” such as consistently territory, and ne- time in his simple tremely important” and “best mea- paperwork. glects his impor- volume is one sure” show that sales Brewer, Moreover, firing in company, one tant factor to the indeed employer’s usual did not deviate from “the company, but very important factor to Fuentes, operation.” 32 F.3d at 765 mode of is the they not show that sales volume do otherwise, majority suggests n. 8. The only company. to the Ab- important factor questionable why a claiming that is also “[i]t alternative, final Brewer could sent salesperson ... company fire [a] would acceptable sales num- had more than have response organizational deficien- to the same cause without and still be fired for bers employer tacitly accepted cies that the had contradiction. Majority two decades.” for over seg majority suggests that “[t]o The next recognized changes This court has job performance catego into the neat regate pre- turn that were circumstances can flaws organizational of sales and skills defies ries viously legitimate overlooked into reasons reality salesperson in a of the role of Healy, 860 F.2d at termination. See addition, company.” Majority at 332. In it employee (discussing change environ- Block, Wolf, finds in Ezold v. Schorr & Solis- ment). undisputed that Brewer’s It was Cohen, Cir.1992), problems to a head his transfer to came after — denied, -, U.S. Detroit, supervisor where he encountered a (1993), concept job’s of a L.Ed.2d everyone who hard on and a stickler for area,” company implying that a “critical (“[Pfauser] App. at 72a is a cross the rules. despite acceptable employee fires an type person point Ts and dot the Is automatical that critical area being Corporate a fanatic it. almost about ly pretext.2 These raises an inference line, always ... policy [a]nd first in in dif arguments dress the same contention there.”) everybody (deposition of affected out argument, paraphrase clothes. To ferent Brewer). Contemporaneous with Judd majority selling is what sales claims that termination, supervisor do, firing a who sells is men so salesman thirty-two year al- old salesman for fired inherently pretextual. Brewer, 874 most identical deficiencies. See Waldron, “reality 686; agree. F.Supp. [a at 499 I cannot sales- cf. role,” (relying person’s] and the “critical area” of on evidence of double standard to concepts.3 summary judgment). expe- job simply helpful See reverse are job passing in other extent cannot be terminated for failures 2. I note in that to the stands Ezold despite area. proposition employee areas success in a critical that an who falls for the performance can be short in a critical area of despite hypothetical terminated demonstrated success in oth- reveals the difficulties with A brief areas, job employee a law firm excels at follow that an these ideas. An associate in er it does not Sec., Inc., Perry complaints v. Prudential-Bache 738 where long-standing were (D.N.J.1989), aff'd, employee nature); been had informed of their (3d Cir.), Billet, (same); cert 111 S.Ct. 940 F.2d at 827 Colgan, cf. (1990) (affirming L.Ed.2d 397 sum (stressing 935 F.2d at 1422 that evaluations mary judgment employer showing despite surprise were a ratings and that became employee that aberrationally terminated excelled core employee low when to refused retire). underwriting). concepts skill of Both at He never contested these evalua- tempt general “per to prior establish ideal of tions to termination.4 There no job” forming any contrary the such that rea corporate evidence of plot machinations or a given by employer son the with that to conflicts transfer Brewer up and set him for termi- so, doing adopts ideal. In the majority Waldron, 496-97; the nation. 56 F.3d at Cf. very “super-personnel depart Armbruster, of posture 32 F.3d at 772-74. of- Brewer strenuously ment” that it all too declines. fered no statistical or testimonial evidence Majority majority indicating defines the that State had discrimi- position essence of a against sales and evaluates nated similarly parties. situated Cf. performance against Wire, Siegel Brewer’s that standard. v. Alpha 894 F.2d at 55. I redefining would save this court the task of view, my Brewer’s evi- job description only Brewer’s to include quantum dence fails reach required by to the requirements those that he meet. could We presented He has not Fuentes. “sufficient good should instead look to whether his meaningfully evidence question, to throw into performance was inconsistent with his rea i.e., to cast upon, substantial doubt [the de- sons termination. I find no contradiction proffered (e.g., by fendant’s] reason ... pretext. and no of reasonable inference weak, painting implausible, as them contra- incoherent)[.]” noting firing Brewer,

It also bears that in dictory, or 765. at Indeed, ques- State committed none of presented the he has no evidence indi- past tionable acts which we have cating cited the employer his did not act for its pretext. as perfor- indicative of non-discriminatory asserted reasons. The problems mance long-standing were and well record shows State’s reliance on his Healy, documented. See 860 F.2d at 1215 requirements failure to meet work ade- be (discounting performance consistent, quate, plausible, based inferences and coherent.5 research, legal job. post the concept typically applied "critical area” his of Yet hoc is em the occasions, ployer's on terminating several this associate fails to employee, send reason for it important to an equally post timing documents client. He also con- valid here. Just as hoc sistently neglects employer’s to record his hours and pretext, billable indicates the reason is see Waldron, 498; aspects Sempier, maintain other mundane of law office 56 F.3d at at F.3d 731; 764; paperwork. Although partners accept some Siegel Alpha Fuentes 32 F.3d at foibles, Wire, eventually these similarly associate encounters at undermine s particular supervising attorney a more who seeks Brewer's claim. Assuming and obtains his termination. that the subsequent discriminatory associate's suit for observed, 5. As we have so often McDonnell pretext stage, reached the I have little Billet, Douglas inherently fact-specific. are cases hypothetical that this doubt associate could not ("discrimination 940 F.2d at 828 cases are inher employer's specific rebut the for termi- reason fact-bound”); ently Healy, 860 F.2d general good perfor- nation ("each judged case ADEA must be on own its job. mance in the critical area of his Nor could . facts”). rejection My showing of Brewer’s would "reality lawyer’s some elusive vision of the of a perfor the success of foreclose some future linking inextricably failings role” aid him in his termination, challenge mance-based either correspondence paperwork to his more employer poor performance where the relied on forays library. successful in the firm Such evi- where, justifications per as one of its or as good performance would dence not raise an Fuentes, employee’s performance is sufficient employer’s inference for termi- reasons "foolish, appear to make decision Indeed, pretextual. were nation such evidence Fuentes, imprudent, incompetent.” See entirely be consistent would with the reasons (explaining employee F.3d at n. need given for termination. reasons). only employee cast doubt on certain evidence, however, Brewer's does not meet burden, pretext grant summary judgment fact makes This claim post Although explanation. proper. like a hoc sound high that she probation manee sufficiency of Brew while

Having addressed supervisor his age to alert evidence, lighted I now general performance er’s age and to ensure protected status proffers, items that he the two turn to other Id.; see for termination. not the reason com was and the Corn memorandum the Weaver Sec., Inc., 738 Perry Prudentia-Bache items, dis inference of both ment. For (D.N.J.1989) (holding that hopes to draw is crimination that records was on various competing infer data light of “in unreasonable employee’s pension, not computing v. Ze used Elec. Indus. Co. Matsushita ences.” discrimination), aff'd, 904 574, 589, 106 purpose, for the Corp., 475 U.S. Radio nith (3d Cir.), denied, 498 U.S. F.2d 1348, 1357, 696 538 89 L.Ed.2d (1990). The 112 L.Ed.2d 397 111 S.Ct. memorandum, I have As to the Weaver that noth correctly concluded district court analysis the trial court. to of little to add discrimination, supported an inference ing of Brewer, F.Supp. at 683-84. 874 in light valid that is all the more a conclusion impact of greatly amplified Weaver’s employment long history of of Brewer’s problem” statement “[age] presents another problems. of context. quoting it out by repeatedly comment, expresses a whole, it As to the Corn it be- is read as a the letter When stray to be a I would deem age dis- truism that an inference of apparent that comes if it Even a non-decisionmaker. remark reasonable.6 The district crimination is not relevant, I do not considered were to be only conclusion: drew the reasonable court a material issue it would create age being a believe that as to Brewer’s “The statement Quak warrant a denial of fact of his sufficient together with the notations ‘problem,’ summary judgment. service, motion for obviously indicate er State’s years of age and Westinghouse Elec. might file See White that Brewer Weaver’s awareness (3d Cir.1988) (considering similar if terminated.” lawsuit discrimination comments); Perry v. Prudential-Bache Sec. Id. at 684. (D.N.J.1989) Inc., F.Supp. its the sentence and From the tone of (3d Cir.), (same), 904 F.2d 696 aff'd memorandum, it is clear placement in the 111 S.Ct. against firing. age militates his that Brewer’s I not dwell on will L.Ed.2d para- separate in a appears The comment further. of Brewer’s em- graph from the discussion whole, that, Moreover, I viewed as conclude problems. ployment Weaver’s meaning- nothing that casts contains testimony, she stated record deposition unrebutted reason proffered in ful procedures were followed doubt that standard plaintiff is discharge. perfor- “While requiring documentation statement, including up discipline, to and more severe properly it must be evaluate To quotation discharge.” extensive understood as written. This places in context: your comment review is a brief Attached plan you ... performance that outlined is appraisals performance over the last 15 Judd's identify you important is that excellent. specific It disappointed not years. that action was I am performance] [in Brewer's deficiencies problems. ago It years to correct these taken by management. desired and the results appraisals performance from the apparent time, point I would recommend At this you identify specific prob- ongoing performance has had that he you monthly dates when history. throughout lems his get together over and discuss two can results obviously take we have to I am concerned that (30) thirty days. previous The results of employ- years type of action after meetings in letter should be summarized those old, Also, pres- years Judd is 53 ment. sign ac- the letter to format and Judd should However, problem. within the ents another receipt. important knowledge It is also (90) extremely important ninety days, next it is provide action with written notice of we Judd possible you much as in the to document as problems are not will be if taken improve. performance not event does summarizing your suggest meet- I corrected. ing August personnel each for our forward letter Judd, Please 19, acknowledge receipt by stay you City. touch with Oil I will file in empha- by stating, "I and close the letter must progress has made.... see what been your permanently you size to failure App. improve your lead work inference,’ every ‘entitled to favorable he is gossamer

not entitled to build a case on ‘the whimsy, speculation conjec

threads of ” Bluemle, ture.’ Keller v. (E.D.Pa.1983), aff'd, 735 F.2d 1349

Cir.1984).

I do believe that Brewer made has

showing necessary to survive motion for

summary judgment. I Because would affirm court,

the district I respectfully dissent.

CHEMETRON CORPORATION

Phyllis Jaskey JONES; Pamela Jo Swan

singer; Jaskey Hujarski; Sandra Patri Hujarski; Hujarski Ross;

cia Teresa Jaskey Butvin; Butvin;

Janice Frank Butvin; Butvin;

Robert Brian Susan

Butvin; Anielski; Vans; Walter Arlene Bekoscke; Anthony Vans;

Yvonne Vans

Gregory Vans; Schultz; Mary Carol

Shaffer; Brittany Cull; Stephanie

Schaffer, Appellants.

No. 94-3371.

United States Court of Appeals,

Third Circuit.

Argued Feb. 1995.

Decided Dec. 1995.

As Amended Dec.

Case Details

Case Name: Judson C. Brewer v. Quaker State Oil Refining Corporation Quaker State Corporation

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 14, 1995

Citation: 72 F.3d 326

Docket Number: 95-3101

Court Abbreviation: 3rd Cir.