sales in Maine, despite having encouraged defendant to develop
facilities for caustic distribution in that state.
Plaintiff claims that his encouragement of facilities for
caustics was based not on sales estimates, but on the needs of
paper mills owned by defendant in Maine. He also argues that
his failure to develop caustic sales in Maine was due to the
short period of time that he had the account. Since both
parties rely solely on depositions, there remains a question of
witness credibility, raising an issue of material fact.
Plaintiff offers an alternative explanation of the American
Cyanamid problem which may raise a factual issue. However, he
produced no evidence to counter the other complaints regarding
account management. On the whole, then, plaintiff has not
raised an issue of material fact as to this basis for
(7) Plaintiff did not follow proper office procedures. Some
of these errors appear to have been relatively minor. For
example, he mischaracterized at least one request for action as
"urgent." Def. ex. 67. He also made requests for information in
"call reports," which are intended to transmit information.
Def. ex. 69; Mackintosh dep. at 166-67. However, some of these
errors were more serious. Plaintiff did not follow office
procedure for documenting contracts. For example, plaintiff
failed to obtain clearance from the legal department for
purchase orders on at least two occasions, and did not always
ensure that changes were agreed upon before the contract was
executed. Def. ex. 39.
In response, plaintiff "categorically den[ies]" that he did
not follow contract procedures. Retter affid. ¶ 30. This
unsupported denial is insufficient. Further, his assertion that
he followed contract procedures, without any evidence, does not
present an issue of material fact, particularly in light of
defendant's contemporaneous memorandum addressing this problem.
Def. ex. 39.*fn2 Plaintiff argues that the "urgency" problem
happened only once. However, defendant only alleges one
occurrence, which plaintiff admits.
(8) Defendant also asserts that plaintiff had a poor sales
record, and did not perform as well as other sales
representatives. Plaintiff claims that he was a successful
salesman. Both parties rely on depositions and affidavits.
Thus, the court is left with a question of witness credibility
as to this particular basis for defendant's actions, and there
remains a factual issue.
While plaintiff was able to present issues of fact about a
few of defendant's proffered reasons, most of these claims
stand up to summary judgment scrutiny. Defendant's evidence
more than satisfies the requirement under Spangle that
defendant show "nondiscriminatory animus."*fn3
Defendant has proffered legitimate reasons for firing
plaintiff, and the burden shifts to plaintiff to present a
material issue of fact as to whether these reasons were
pretexts for improper discriminatory reasons. However,
plaintiff fails to carry this burden. He submits no actual
evidence that these reasons are pretextual. Instead, he
presents assertions and denials, which are not enough to
counter defendant's motion for summary judgment. Lacey
Township, 772 F.2d at 1109.
As already discussed, plaintiff has failed to raise any issue
as to whether the majority of defendant's reasons for its
actions are pretextual. For example, while plaintiff
"categorically" denies that his letters to customers contained
inaccuracies, he submits
no proof, and thus fails to create an issue of material fact.
Other responses to defendant's proffered grounds are similarly
Nor is it enough for plaintiff to substitute his own judgment
for the defendant's. The decision to demote and fire plaintiff
need not be sound business practice. Defendant must only
demonstrate that it had legitimate, nondiscriminatory reasons
for its actions. Healy v. New York Life Ins. Co.,
860 F.2d 1209, 1216 (3d Cir. 1988).
Plaintiff asserts (and defendant denies) that he was given no
feedback or criticism of his work, and that defendant's actions
were made without warning. See, e.g., Retter affid. at ¶ 22,
24. Plaintiff argues that this supports his claim of pretext;
that defendant felt compelled to come up with reasons after the
fact. Id. However, he gives no evidence to support this
assertion. Plaintiff relies on a Seventh Circuit case for the
proposition that an employer must inform an employee of job
expectations. Kephart v. Institute of Gas Technology,
630 F.2d 1217 (7th Cir. 1980). While Kephart requires an employer to
make job expectations known, it appears that the decision does
not actually require employers to follow this up with critiques
of an employee's performance. Further, the Third Circuit has
clearly stated that "from a legal perspective managers are not
compelled to convey their dissatisfaction to employees." Healy,
860 F.2d at 1216. Thus, the court need not consider the merits
of plaintiff's argument.
Even if plaintiff could show that defendant's reasons for
demoting and terminating plaintiff were pretextual, he must
still establish that defendant's actions were discriminatory.
Spangle, 839 F.2d at 173. Plaintiff fails to present any
evidence which suggests that he was personally subjected to age
discrimination; instead, he relies on unsupported assertions.
For example, plaintiff's affidavit states that "the only reason
for [demoting plaintiff] was . . . the desire to bring in
Macintosh [sic], a younger employee." Retter affid. at ¶ 46.
However, plaintiff gives no evidence that plaintiff was demoted
in order to "bring in Mackintosh," let alone that Mackintosh
was assigned because he was younger. Plaintiff's allegations
that Mackintosh tried to "create problems . . . because of my
age and higher compensation," id. at ¶ 53; that defendant
wished "to get rid of other, more highly paid employees, such
as myself, . . . to pay off its heavy debt load," id. at ¶ 44;
and that defendant criticized plaintiff "to put [defendant] in
the frame of mind to discharge me because my age was allegedly
interfering with my work," id. at ¶ 61, are similarly
conclusory and unsupported.
Plaintiff states that "I was one of the older persons on the
payroll whom defendant was anxious to get rid of." Id. at ¶ 14.
However, plaintiff presents insufficient evidence to back up
his assertion. Defendant presents convincing evidence to show
that its termination practices were not discriminatory. From
1985 until mid-1987, when plaintiff was terminated, forty
persons were terminated due to elimination of positions.
Twenty-one of these employees were more than forty years old,
and nineteen were less than forty years old. Petersen affid. at
¶ 10. Thirty-six employees were discharged for cause, twelve of
whom were more than forty years old, and twenty-four of whom
were less than forty years old. Id. at ¶ 11. Thus, there is no
evidence of discriminatory firing patterns.*fn5
Plaintiff admits that his only "evidence" of discrimination
consists of certain hearsay evidence that four employees were
forced to retire. Retter dep. at 101-05. There is no indication
that they were forced
to retire because of age discrimination. Plaintiff's own
statements only indicate that they were older employees who
were terminated. Indeed, defendant has presented evidence that
all four either were fired or accepted retirement based on
legitimate, nondiscriminatory reasons. According to evidence
presented by defendant, Mr. Fergesen was fired for poor job
performance. Marshall affid. at ¶ 5-11. Mr. Battcock was
similarly terminated for cause. Mackintosh dep. at 176-80; Def.
ex. 72-76. A third employee, Mr. Panulas, accepted retirement
when his job was eliminated, id. at 42-43, and a fourth, Mr.
Klemp, accepted retirement because of poor performance and
because his position was being eliminated. Id. at 144-45.
In response to this strong evidence, plaintiff can only
assert that defendant's explanations are "disingenuous,"
without providing any facts to back up this assertion. Retter
affid. at ¶ 64. He attempts to present alternative theories,
but they are unsupported by any evidence. Id. Thus, plaintiff
has not established that there is any issue of material fact on
this particular issue.
Since summary judgment in favor of defendant is warranted,
the court need not consider whether plaintiff's affidavit is
admissible under Rule 56(c) and Local Rule 27(A). Defendant has
requested that sanctions be imposed under Local Rule 27(A) for
plaintiff's affidavit. Plaintiff's affidavit, however, was not
wholly without merit, as indicated by the fact that he was able
to raise issues of fact regarding two of defendant's proffered
reasons for discharge. Since the awarding of sanctions under
Local Rule 27(A) is up to the court's discretion, we will
refrain from exercising that discretion.
For the reasons presented in this opinion, it is therefore on
this 28th day of January, 1991
ORDERED that defendant's motion for summary judgment be and
hereby is granted, and plaintiff's complaint hereby is
dismissed, and it is further
ORDERED that defendant's motion to strike the affidavit of
James R. Retter be and hereby is denied as moot, and it is
ORDERED that defendant's petition for sanctions under Local
Rule 27(A) be and hereby is denied.