*3
POLLAK, District
Judges, and
Circuit
Judge.**
**
*
Poliak,
Becker,
States Dis-
Louis H.
United
Cir-
Honorable
United States
Edward R.
Honorable
Pennsylva-
Circuit,
Judge
District of
trict
nia,
for the Eastern
Judge
Chief
the Third
assumed
cuit
sitting by designation.
February
Judge
status
I.
OF THE COURT
OPINION
Plaintiff,
Simpson, was an
Sandra
BECKER,
Judge.
Chief Circuit
Mall in
ee of
Jewelers in the DuBois
County, Pennsylvania. Kay Jew-
Clearfield
appeal
This is
Sandra
stores,
jewelry
chain
elers
of retail
summary
grant
judgment
defen-
by Sterling, Inc.
purchased
which was
alleging
dant
a suit
originally hired as
Age
in violation of
Dis-
promoted
May,
bookkeeper
(“ADEA”),
Employment
Act
crimination
promot-
1976. She was
assistant
(1985
Supp.1997),
§§ 621-34
&
29 U.S.C.A.
1979, position
manager in
ed to store
Pennsylvania
Act
and the
Human Relations
held
in 1994.
until her demotion
(“PHRA”),
§§
Ann. tit.
951-63
Pa. Stat.
*4
1994, Simpson’s
to
forte was
From 1991
(1991
Supp.1997).1 Simpson
&
contends
jewelry
sales. The overall
individual
evidence of the more favorable treatment
sales, howеver,
store
were considered defi-
allegedly similarly
younger
situated
em-
one
Kay
quotas
cient.
set sales
for
Jewelers
permit
to
ployee
inference
stores, taking into account such
each of its
employer’s proffered
reason for her
conditions, mall condi-
as economic
factors
pretext for
demotion is a
discrimination. We
tions,
competition.
September
From
and
reject
that a
this contention and hold
1994, Simpson’s
store satisfied
to March
merely by
fact
does
create an issue of
quota eight
monthly
its
store sales
out
choosing
comparator
selectively
single
who thirty-one
During
months.
the fourteen
favorably,
allegedly treated
while
demotion,
immediately
prior to her
months
comparators
ignoring
significant group of
manager
quota
met
three
The district
times.
equally
to her.
who
treated
Simpson’s
repeatedly indicated on
evalua-
improve
quota
tions that she needed to
pretext
also contends that
can be
performance and
The
increase store sales.2
alleged
inferred from
inconsistencies be-
1991, 1992, and 1994 evaluations identified
proffered
Kay
and
tween
reasons
“major developmental
increased sales
reject
its actions. We also
contention
needs." The
evaluation stated
Block,
and,
Wolf,
following Ezold
Schorr
get
[quotas]”
to
to
needed
“work
6/6
(3d Cir.1993)
Solis-Cohen,
demoted
failed to
attain the store
First, Simpson’s
reliance
motivate her staff
adequately train and
selec
misplaced
Field
because she cannot
dispute her
Simpson does not
quotas.
meet
The
has
tively
comparator.
choose
quotas or to
the store sales
failure to attain
similarly
demonstrating that
the burden of
staff,
does make
adequately train her
but
differently.
persons
treated
were
situated
attempt
in an
to both
arguments
numerous
Burdine,
at
647 valid perceives choose is a favоrable treatment discredits a proffered reasons her demotion. comparator allegedly treated more who was Jewelers, however, represent did not that it completely ignore significant favorably, and a Thus, Simpson’s on relied evaluation scores. comparators who treated group of were performance, by of her view as measured equally favorably than she. or less scores, Instead, evaluation is not relevant. focusing on quo- the stated criterion —sales IV. superior performance tas —Field’s Moreover, if even Field were Simpson’s, dispute. not result does Simpson’s on proper comparator, reliance surpassed quotas Field met or her six out of determining misplaced. would still Simpson’s preceding the fourteen months de- similarly nonmembers of whether situаted motion; Simpson only quo- met her whereas favorably protected class treated more were three the same tas out of fourteen months.11 class, the a member Accordingly, Simpson’s evaluation evidence particular qualifica focus criteria or is on genuine not does create a issue material by employer rea as the tions identified fact. Ezold, F.2d for the adverse action. 983 son performance employee’s positive at 528. The V. id., relevant, category not another is A. judgment to the employee’s as neither is the arguments other are also criterion, Healy v. importance stated inadequate summary judgment. to survive Co., 1209, 1216 Ins. New York Life Simpson argues quotas that the of sales use (3d Cir.1988). Furthermore, does court suspect. as the criterion is She claims subjectively weigh faсtors it considers using performance on sales incon Quaker Re important. Brewer v. State Oil points scoring, with sistent evaluation (3d Cir.1995);
fining Corp., F.3d having despite fact Field satisfied Ezold, (rejecting see also quota Simpson, sales more often than subjective plain weighing of district court’s scores in all sales criteria Field’s evaluation abilities). Rather, plaintiff must tiffs This, equal Simpson’s. to or below point which a factfinder to evidence from according Simpson, meeting counsels reasonably that the satis could infer quotas is not determinative the ade employer fied the criterion identified manager’s performance. Implicit quacy of actually rely or that did argument is the contention evalu in this F.3d upon the stated criterion. perfor ation scores are more indicative Brewer, Compare at 331-32 at 767. F.3d quоtas or evaluation mance. Whether sales plaintiffs receipt perfor (finding that appropriate are more measure of scores raised of fact to wheth mance bonus issue as manager’s is not court performance-based explanation employer’s er (or factfinder) Healy, 860 F.2d at to decide. pretext) with discharging (“our independent ... inquiry Ezold, plain (finding F.2d at 528-29 might evaluate[an] how assessment of analy legal other than tiffs abilities areas question is not whether employee”). “The determining firm’s if law sis not relevant sound, best, or even made legal analysis explanation promoting for not decision; rea it is whether real business pretext). plaintiff was Keller, 130 [discrimination].” son is completely (quoting relies evaluation v. Bethlehem Steel Carson (7th Cir.1996)) (alter Field, that, compared Corp., 82 arguing scores *9 original). in superior performance but less ation allegedly significance Kay likely in the decision. Nonethe- use was not a factor no in We find less, equa- month of sales data from March Simpson same 1994 from the if eliminate March demoted, arguing that Field was tion, was performed Simpson: than Field still better position. Simpson qualified months, quotas five of thirteen Field met her out the decision on or about March demoted quotas three Simpson met out of whereas approximately week one to demote made thirteen months. Thus, Simpson's March earlier. morale was addition, employees such that their Bray Mar citing In (3d Cir.1997), Hotels, low, Simpson F.3d 986 provide riott with and failed to alleged inconsisten Simpson claims that this necessary merchan- to offer discount codes raises an inference cy evaluation scores with percent. greater fifteen dise discounts Bray, improper In we found motives. can be made extent the inference To the discrepancies in how the various impacted manager’s behavior the district on purportedly relied evaluated the criteria more, evidence, sales, the without the store’s the black promote over white a factfinder such a level that does not rise to questions of to raise plaintiff, was sufficient by preponder- reasonably conclude could 110 F.3d employer’s motives. fact as to the Kay acted Jewelers ance of the evidence timing (finding discrepancies at 993-97 evaluations, priority given to employee discriminatory Bonura v. motive. with Cf. candidates, interpreta ranking factors in N.A., Bank, Manhattan Chase levels, grade all of which occupational tion of (2d Cir.1986) (finding evidence to promoting not identified as reasons for were plaintiff allegedly dis- uphold jury verdict for however, clearly Bray, is distin plaintiff). performance where charged for substandard discrepancies guishable. Bray were supervisor in- to inference that evidence led criteria identified as determina in the use of efforts, as well as employee’s terfered with id., by employer, whereas this tive adequately and em- employee performed discrepancies pointing to case is sought younger persons). ployer to hire by Kay Jewel a criterion identified between (sales quotas) and a criterion asserted ers C. scores). (evaluation As we only by Simpson the failure to Simpson argues that said, is on the criteria identi have the focus Kay only with emрloyer, explanation not the criteria train is inconsistent fied Healy, important. plaintiff thinks are if asserts that train actions. She at 1216.12 important then the ing actually had manager would have conducted the district B. GID, training pursuant sessions Simpson argues that the district have sent a trainer to the home office would training, manager’s failure to assist Furthermore, Simpson points to the store. operations, gives his interference with store counseling further on the absence of manager an inference that the district rise to completion of training after her successful seeking predetermined re to obtain light Viewing evidence in the the GID. this discriminatory rea sult —her demotion —for Simpson,14at most it leads most favorable to Simpson claims that the Specifically, sons. Kay did not inference that Jewelers to an conduct two two- manager failed to district Simpson important to assist consider training as indicated on the day sessions staff; inferred that training her it can not be GID,13 present at the helpful when improve unimportant Simpson to verbally it was berated and on one occasion store Kay demoted Jewelers sales to the 12.Simpson the use of also asserts inference something suspect man- than the asserted quotas because some of the store other contrary, agers purportedly quotas nondiscriminatory for failure to meet demoted reason. To meeting actually "proficient" superior perfor- at younger managers with fact that managers points quotas. Simpson to five their who percent be viewed as evidence mance were demoted can fifty quotas minimally sales met their store age was irrelevant. times, (ten five of twelve of the time out accurately times, times, It is not clear that of six seven of seven four out out out of twelve Identifying times, times). viewing claims the district the facts. of six and three out sessions, training manager how- conduct thirty-five persons who was to five out only that the man- substantially Simpson ever the GID indicates performed better than store, reasonably may meeting ager lead to which be inter- quotas does not was to visit the sales rely merely requiring preted Jewelers did not on the district the inference that Simpson. demoting training. The issue is follow-up efforts to Nonetheless, conflicting motivated the animus "whether evidence in we resolve wise, employer, shrewd, [was] whether the Simpson. favor competent.” prudent, successfully completed contradiction, Thus, contends allеged F.3d at 765. GID, argues that she did question as to the wiseness of raise a implement instructions on the list. give all of the managers, rise demoting does not those five *10 narrowly demotion too insofar as it training her accord. record is is stated on own evidence, contrary Simpson’s to replete with appears contemplate to the evidence, Kay no that there is assertion actually must establish that she has training important. considered staff Jewelers significantly replaced by younger person. a Simpson’s evalua- From 1991 to each of appellant in fact re- Because needed to conduct tions indicated that she placed by significantly younger person, a the specifically training. The GID re- question present no in the is of moment training daily on quired to be conducted is, therefore, litigatiоn, present and there no is no Accordingly, there basis basis. to But need for this court resolve it. expla- infer failure to train which to that the question likely that is is one to surface “unworthy of nation was credence.”15 flagging some future ADEA case. So at 765. makes question serve to some now stimulate find arguments, additional we three thinking by useful those in this interested completely without merit.16 field of law. sum, Simpson provided In has not Kay prof- to discredit Jewelers’ In 5 the court the “three footnote outlines permit reasons or the inference that
fered steps analysis in the of discrimination likely not a was more “[ujnder pursued cases” which must be cause motivating or for her determinative cases, Douglas applied line McDonnell of as Accordingly, the district court’s demotion. analogous provision to the of ADEA and judgment granting summary to the order explains footnote that the PHRA.” The will be affirmed. defendant steps of of “estab- first three consists discrimination,” lish[ing] prima facie case of POLLAK, Judge, H. District LOUIS accomplishes “by showing which a concurring. (1) is a member of the opinion join judgment and I class, years age, least 40 29 U.S.C. i.e. at of court. (2) (3) 631(a), qualified position, merely to call separately I write attention decision, employment suffered an adverse unobtrusively in legal question that lurks to a (4) ease of a or dis- demotion opinion question footnote of the court’s —a sufficiently youn- charge, replaced fully in this circuit. The that is resolved an ger to create inference of question is whether this circuit’s conventional support of this four- discrimination.” summary prima facie elements of phase of a facie ADEA discharge formulation ADEA case (7th Cir.1992) (declining Kay defendants did bind also claims that Jewelers initially "positions they in state adminis- explanation assert to the not raise the failure to train any by rendering different proceedings trative Kay position statement to the EEOC. pretext”). position per has not se EEOC states: pointed such evidence. Party's Charging declining As a result of the responsive ini- level and lack (1) manag- asserts that the district Charging Party ... was demoted from tiative revision of evaluation score er's downward Manager employee to full-time sales ... Store veracity; adversely Kay reflects on Jewelers' Party's upon Charging based failure to im- departure scores in evaluation downward Charging prove Par- [I]t store sales.... suspicious; and 1993 is between 1992 ty’s responsibility ... to maintain the sales Kay due to claim of low morale Jewelers' stоre by training, motivating and the entire store "stealing” alleged Simpson’s associates’ sales managing the staff. store previ- As discussed is a baseless accusation. Appendix at if this statement could 731a. Even ously, "qualification^] is on the the focus specifically indicating as be read Ezold, lacking.” F.2d at found was a reason for her failure to train Simpson was defi- Kay found that Jewelers demotion, Kay make Jewelers’ subse- does not meeting quotas and in cient her store sales raising quent explanation pretextual. staff; rely Kay training Jewelers did post mere fact that a defendant relies on stealing. ”[T]he alleged scores or the the evaluation morale, [explanation] in and of create gen- hoc does not itself indicated store dispute [explanation eral, inadequate whether the a fаctual about of several causes for was one not, pretextual.” Healy, put by Simpson, F.2d at 1215. The was] forth store sales. It Thus, point plaintiff must to evidence that demon- reason for the demotion. alternate explana- light favorable viewing to disbelieve the claims in most strates there reason these 1215-16; dis- McCoy not tend to Simpson, also v. WGN the evidence does tion. Id. Co., Broadcasting credit articulated reasons. Continental *11 650 case, discharge or ADEA prima of a facie discharge case footnote 5 cites or demotion whether, the dis- Inc., in circumstance in which a Spencer Gifts, 814 F.2d Chipollini v. (3d dismissed, replaced, other evi- Cir.), charged plaintiff is not
893,
cert.
483 U.S.
897
(1987).
26,
support prima
facie case.
1052,
dence can
L.Ed.2d 815
108 S.Ct.
97
in
apposite
Chipollini,
an
one:
The citation is
may
that
be relevant
In this сonnection
case,
forth
discharge
ADEA
this court set
Douglas
Supreme
in McDonnell
Court
essentially
four-phase formulation.
the same
phase of a
require, as the fourth
did not
case,
turn,
prima facie race-based-refusal-to-hire
four-phase
Chipollini, in
derived the
hiring
plaintiff
of a
that
establish
v.
In
formulation from
Sinclair
Maxfield
(3d
job
fill
which
tern.,
788,
Cir.1985),
non-minority person to
793
cert.
766
rather,
rejected;
796,
the Court
denied,
plaintiff
was
88
474 U.S.
S.Ct.
showing
(1986).
limited
that “the
required the more
this court
L.Ed.2d 773
Maxfield
employer
open and the
position remained
adapted
discharge
ADEA
eases the Su
persons
applicants from
in
continued to seek
four-phase formulation
preme Court’s
Green,
complainant’s qualifications.” 411 U.S. at
Douglas Corp. v.
McDonnell
language from
(1973),
at 1824. The
93 S.Ct.
L.Ed.2d 668
of a
93 S.Ct.
just
Douglas which has
been
racially
McDonnell
primа facie Title
case of
discrimi
VII
Maxfield/Chipol
may signify that the
quoted
natory
hire.
McDonnell
refusal
Under
(inadvertently)
matter,
lini
formulation has
plaintiff, as an initial
Douglas the
susceptible
that are
to an
crafted in terms
carry
establishing a
“must
the burden of
reading.
example
An
of such
overly narrow
prima facie case of racial discrimination.
(i)
reading
Siegel Alpha
v.
Wire
a narrow
may
by showing
that he
This
be done
(3d
Cir.1990),
(ii)
in
Corp.,
which
minority;
he
belongs to a racial
prima facie case could be
explication
our
of a
joba
applied
qualified
and was
(iii)
signifying that the four listed
understood as
seeking applicants;
plaintiff
obligatory:
all
“a
that,
reject
elements were
despite
qualifications,
his
he was
(1)
(iv) that,
that she was a member of
ed;
rejection,
must establish
after his
(2)
ADEA,
by
the class
open and the
positiоn remained
qualified
position
from which
she was
applicants
persons
continued
seek
(3)
discharged,
that she was dis
she was
complainant’s qualifications.” 411 U.S. at
charged despite
qualifications,
those
discus
Maxfield
by person
position was then filled
ADEA that the
prima
of a
facie
sion of the elements
sufficiently younger
permit
an inference of
question
discharge
dealt with the
wheth
case
showing
age discrimination.”
phase required a
er the fourth
replaced by per
complainant had been
Casio, Inc.,
However,
in Torre v.
forty i.e.,
person
younger
son
(3d Cir.1994),
—
we made it clear
830-31
statutorily protected class. This
within the
not to be
Siegel
our
formulation was
rejected such a construction of
court
graven in stone. We referred to our
read as
plaintiff
an ADEA
ADEA: “we hold that
Newspa-
Gray
in
v. York
intervening оpinion
may
the fourth element of
establish
(3d Cir.1992),
Inc.,
pers,
F.2d 1070
stat-
prima
Douglas test for a
facie
McDonnell
“[wjhile
that,
Gray
noted in
that an
ing
by
by showing
replaced
case
s/he
his or her
ADEA
establish
sufficiently younger
permit an in
by meeting the four criteria
prima
case
facie
F.2d at
ference of
discrimination.”
there,
we did not conclude
announced
inflexible.”
F.3d at
those elements were
Torre,
fron-
Then in
we addressed
830-31.
should be noted is
what
What
in
seemingly
language
Sie-
tally the
directive
to decide
court was called on
Maxfield
gel:
by person
replacement
within
whether
regarded
tending
by
could
statement
protected class
are not troubled
our
We
discharge
Siegel Alpha
Corp.,
facie case of
to establish
Wire
ADEA,
(3d Cir.1990),
prove
this court’s an-
“must”
contravening the
that a
Gray.
What the Max-
later discussed
the аffirmative.
the four elements
swer
purport
to create
on to decide —or at
did not
court was not called
This statement
field
First,
opinion
rule.
our later
on to decide— an inflexible
expressly
called
least was
reading, since it
signifi-
Gray
undercuts such a
replacement by someone
was whether
permissive
more flexible and
ingredient
speaks in the
younger
indispensable
cantly
is an
younger;
mandatory
show other-
“must.”
someone
“may”
than the
rather
*12
reading Siegel to create
Additionally,
age.
discharge
of
wise
his
was because
incon-
prima
be
rigid
burden would
facie
(The
Olitsky
Fifth Circuit’s
formulation has
authority re-
Supreme Court
sistent with
Group
v.
origins in Elliott
Medical &
its
approach.
quiring a contextual
Cir.1983),
(5th
Service,
Surgical
at 831 n.6
Id.
denied,
rt.
U.S.
S.Ct.
ce
trans
plaintiff who was
Torre involved a
(1984),
terminated. These prima Id. case.”
Torre’s facie may “reformulation” be seen
Torre’s
and similar
to reduction-in-force
confined
MERIANO,
Philip
ESTATE OF
harbinger of
be the
scenarios. Or
Deceased,
Panepinto,
Anita
generally
in a
more flexible
acquiescence
Administratrix, Appellant,
constituting
pri-
elements
treatment
v.
discharge
A court
facie ADEA
case.
ma
proceeds in
fashion is the
this latter
which
OF INTERNAL
COMMISSIONER
Circuit,
Olitsky
Spenc
which said
Fifth
REVENUE SERVICE.
(5th
Gifts,
n.19
Cir.
er
96-7329.
No.
(1993):
denied,
1992),