U.S. Court of Appeals, Third Circuit
July 23, 1998
SANDRA L. SIMPSON, APPELLANT
KAY JEWELERS, DIVISION OF STERLING, INC.
On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 95-cv-00270J)
Before: BECKER,*fn* Stapleton, Circuit Judges, and Pollak, District Judge.*fn**
The opinion of the court was delivered by: Pollak, District Judge.
Submitted Under Third Circuit LAR 34.1(a)
January 22, 1998
Opinion Filed: April 24, 1998
Judge Pollak's Concurring opinion in the above casefiled on April 24, 1998 is hereby substituted as follows:
POLLAK, J., Concurring:
I join the judgment and opinion of the court.
I write separately merely to call attention to a legal question that lurks unobtrusively in a footnote of the court's opinion--a question that is not fully resolved in this circuit. The question is whether this circuit's conventional summary of the elements of a prima facie ADEA case of discriminatory discharge or demotion is too narrowly stated insofar as it appears to contemplate that the plaintiff must establish that she has actually been replaced by a significantly younger person. Because appellant Simpson was in fact replaced by a significantly younger person, the question is of no moment in the present litigation, and there is, therefore, no present need for this court to resolve it. But the question is one that is likely to surface in some future ADEA case. So flagging the question now may serve to stimulate some useful thinking by those interested in this field of law.
In footnote 5 the court outlines the "three steps in the analysis of pretext discrimination cases" which must be pursued "[u]nder the McDonnell Douglas line of cases, as applied to the ADEA and the analogous provision of the PHRA." The footnote explains that the first of the three steps consists of "establish[ing] a prima facie case of discrimination," which a plaintiff accomplishes"by showing that she (1) is a member of the protected class, i.e. at least 40 years of age, 29 U.S.C. §631(a), (2) is qualified for the position, (3) suffered an adverse employment decision, and (4) in the case of a demotion or discharge, was replaced by a sufficiently younger person to create an inference of age discrimination." In support of this four-phase formulation of a prima facie ADEA discharge or demotion case footnote 5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). The citation is an apposite one: in Chipollini, an ADEA discharge case, this court set forth essentially the same four-phase formulation.
Chipollini, in turn, derived the four-phase formulation from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir. 1985), cert. denied, 474 U.S. 1057 (1986). In Maxfield this court adapted to ADEA discharge cases the Supreme Court's four-phase formulation in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), of a prima facie Title VII case of racially discriminatory refusal to hire. Under McDonnell Douglas the plaintiff, as an initial matter,"must carry the burden of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802. The Maxfield Discussion of the elements of a prima facie ADEA discharge case dealt with the question whether the fourth phase required a showing that the complainant had been replaced by a person younger than forty -- i.e., a person not within the statutorily protected class. This court rejected such a construction of the ADEA: "we hold that an ADEA plaintiff may establish the fourth element of the McDonnell Douglas test for a prima facie case by showing that s/he was replaced by a person sufficiently younger to permit an inference of age discrimination." 766 F.2d at 793.
What should be noted is that what this court was called on to decide in Maxfield was whether replacement by a person within the protected class could be regarded as tending to establish a prima facie case of discharge contravening the ADEA, and this court's answer was in the affirmative. What the Maxfield court was not called on to decide -- or at least was not expressly called on to decide -- was whether replacement by someone significantly younger is an indispensable ingredient of a prima facie ADEA discharge case, or whether, in a circumstance in which the discharged plaintiff is not replaced, other evidence can support a prima facie case.
In this connection it may be relevant that the Supreme Court in McDonnell Douglas did not require, as the fourth phase of a prima facie race-based-refusal-to-hire case, that the plaintiff establish the hiring of a non-minority person to fill the job for which the plaintiff was rejected; rather, the Court required the more limited showing that "the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." 411 U.S. at 802. The language from McDonnell Douglas which has just been quoted may signify that the Maxfield/ Chipollini formulation has (inadvertently) been crafted in terms that are susceptible to an overly narrow reading. An example of such a narrow reading is Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir. 1990), in which our explication of a prima facie case could be understood as signifying that the four listed elements were all obligatory: "a plaintiff must establish (1) that she was a member of the class protected by the ADEA, (2) that she was qualified for the position from which she was discharged, (3) that she was discharged despite those qualifications, and (4) that the position was then filled by a person sufficiently younger to permit an inference of age discrimination."
However, in Torre v. Casio, Inc., 42 F.3d 825, 830-31 (3d Cir. 1994), we made it clear that our Siegel formulation was not to be read as graven in stone. We referred to our intervening opinion in Gray v. York Newspapers, Inc., 957 F.2d 1070 (3d Cir. 1992), stating that, "[w]hile we noted in Gray that an ADEA plaintiff may establish his or her prima facie case by meeting the four criteria announced there, we did not conclude that those elements were inflexible."42 F.3d at 830-31. Then in Torre, we addressed frontally the seemingly directive language in Siegel:
We are not troubled by our statement in Siegel v. Alpha Wire Corp., 894 F.2d 50, 55 (3d Cir. 1990), that a plaintiff "must" prove the four elements later discussed in Gray. This statement did not purport to create an inflexible rule. First, our later opinion in Gray undercuts such a reading, since it speaks in the more flexible and permissive "may" rather than the mandatory "must." Additionally, reading Siegel to create a rigid prima facie burden would be inconsistent with Supreme Court authority requiring a contextual approach.
Id. at 831 n.6.
Torre involved a plaintiff who was transferred and ultimately discharged when the defendant employer implemented a reduction in force. In the district court, the plaintiff stipulated that he had not been replaced, but rather that the employer had eliminated the plaintiff's former position. Accordingly, the district court granted the employer's motion for summary judgment, since " `plaintiff has not established a prima facie case of discrimination.' " 42 F.3d at 830. In reversing the grant of summary judgment, we pointed out that two cases decided after Chipollini--Billet v. CIGNA Corp., 940 F.2d 812, 816 n.3 (3d Cir. 1991), and Healy v. New York Life Ins. Co. , 860 F.2d 1209, 1214 (3d Cir. 1988)--"noted that the fourth element must be relaxed in certain circumstances, as when there is a reduction in force." 42 F.3d at 831. Turning to the facts of record, we observed that "[h]ere, reformulation of the fourth element of Gray was appropriate." Id. "[Y]ounger people were not transferred when Torre was transferred, and younger people subsumed his duties." Furthermore, "younger people were retained when Torre was terminated. These facts suffice to complete Torre's prima facie case." Id.
Torre's "reformulation" may be seen as confined to reduction-in-force and similar scenarios. Or it may be the harbinger of acquiescence in a generally more flexible treatment of the elements constituting a prima facie ADEA discharge case. A court which proceeds in this latter fashion is the Fifth Circuit, which said in Olitsky v. Spencer Gifts, 964 F.2d 1471, 1478 n.19 (5th Cir. 1992), cert. denied, 507 U.S. 909 (1993):
In McDonnell Douglas Corp. v. Green, 411 U.S. 799, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973), the Supreme Court formulated an evidentiary procedure for race discrimination cases which has been adapted for ADEA cases. First the plaintiff must prove a prima facie case of age discrimination, which consists of evidence that the plaintiff: (1) was discharged; (2) was qualified for the position; (3) was within the protected class at the time of discharge; (4) was replaced by someone outside the protected class; or (5) by someone younger; or (6) show otherwise that his discharge was because of age.
(The Fifth Circuit's Olitsky formulation has its origins in Elliot v. Group Medical & Surgical Service, 714 F.2d 556, 562 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984), a Fifth Circuit case referred to by this court in Maxfield. See 766 F.2d at 792.).
Determining whether the Fifth Circuit's articulation of the prima facie case for ADEA plaintiffs is a more apt description of the state of the law than that employed in Chipollini and Maxfield may be postponed for another day, since resolution of the question one way or another can have no bearing on the present appeal. As noted above, Ms. Simpson was in fact replaced by a significantly younger person, and, accordingly, she was able to make out a prima facie case within the letter of Maxfield and Chipollini. The weakness of Ms. Simpson's case came at a later stage. As the opinion of the court makes plain, the magistrate Judge and the district court correctly concluded that her case on the merits was too insubstantial to survive Kay Jeweler's motion for summary judgment.
Dated: July 23, 1998
Louis H. Pollak, United States District Judge
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit