Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 02-cv-8610) District Judge: The Honorable Bruce W. Kauffman
The opinion of the court was delivered by: Aldisert, Circuit Judge
Before: SLOVITER, FISHER and ALDISERT, Circuit Judges
This appeal by Richard J. Kautz from the District Court's order granting Met-Pro Corporation's motion for summary judgment in an age discrimination case requires us to decide whether Kautz met his burden of proving that his employer's reasons for laying him off, in a reduction in force situation, were pretextual.
Kautz presents no direct evidence of age discrimination. His claim must, therefore, be analyzed under the burden shifting framework provided by McDonnell Douglas Co. v. Green, 411 U.S. 792 (1973). In Stanziale v. Jargowsky, 200 F.3d 101 (3d Cir. 2000), we explained this burden shifting framework in the context of an Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 (2000), claim:
A plaintiff must first produce evidence sufficient to convince a reasonable factfinder as to all of the elements of a prima facie case of discrimination. If a plaintiff establishes a prima facie case, "'[t]he burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that the defendant had a legitimate, nondiscriminatory reason for the [adverse employment decision].'" An employer need not prove, however, that the proffered reasons actually motivated the [employment] decision. If a defendant satisfies this burden, a plaintiff may then survive summary judgment by submitting evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.
Id. at 105 (citations omitted).
The District Court held that Kautz established a prima facie case of discrimination under the ADEA and the Pennsylvania Human Relations Act ("PHRA"), 43 P. S. §§ 951-963 (1991). The Court determined that Met-Pro met its burden of going forward with the evidence by establishing legitimate nondiscriminatory reasons for his termination and that Kautz failed to establish that Met-Pro's reasons were pretexual. We will affirm.
This dispute arose when Met-Pro laid Kautz off from his position as a regional sales manager ("RSM") during a reduction in force which cut back the number of RSMs from six to five. Kautz was laid off by Met-Pro on February 20, 2002 after he had worked for the company as an RSM since 1987. He had just turned 64.
Met-Pro manufactures and sells industrial pumps. In October 2001, Met-Pro consolidated two of its divisions: Fybroc and Dean Pump. Kautz had previously been one of four RSMs for Dean Pump. With the consolidation, he became one of the six RSMs in charge of Fybroc and Dean Pump and his account responsibilities were revised, as were those of the other RSMs. He was assigned to the Southwest Region. Attrition, rather than layoffs, provided the vehicle for this consolidation.
In August 2001, Kautz was told that he would have to transfer from Houston, Texas to Telford, Pennsylvania to work in an office in Met-Pro's Fybroc plant located there. At this time, the five other RSMs all worked from factory locations and Kautz was the only RSM who worked from his home. Met-Pro agreed to pay Kautz's relocation expenses. Kautz gave his assent to the transfer but did not actually begin work from the new location until January 5, 2002. In February 2002, Met-Pro decided to reduce the number of RSMs from six to five because further consolidation of the sales force was necessary.
Met-Pro asserts that it decided to lay off Kautz after two statistical comparisons of the RSMs and then, after narrowing the field of possible candidates to two, a comparison of the candidates personnel files. Kautz asserts that these reasons were pretextual. We examine each of Met-Pro's proffered reasons in detail below and, therefore, will not recount them here.
When laid off, Kautz signed an agreement for a severance package which allowed him to receive 13 weeks of severance pay. The agreement provided that Met-Pro had no obligation to re-employ him. Subsequent to Kautz being laid off, two other RSMs (ages 30 and 43) were fired for cause and replaced by David Hakim, age 33, and Christopher Cousart, age 47. Kautz was not notified about these job openings or considered for either position. When these openings became available he was, and still is, working for Kirkwood Company, one of Met-Pro's distributors. His salary at this new position is significantly less than the salary he earned at Met-Pro. Met-Pro continues to employ only five RSMs.
Subject matter jurisdiction over Kautz's claims under the ADEA arises pursuant to 28 U.S.C. § 1331. We exercise pendent jurisdiction over Kautz's claims arising under the PHRA pursuant to 28 U.S.C. § 1367. *fn1 We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
The standard of review applicable to the District Court's order granting summary judgment is plenary. Carrasca v. Pomeroy, 313 F.3d 828, 832-833 (3d Cir. 2002). We must apply the same test employed by the District Court under Federal Rule of Civil Procedure 56(c). Id. Accordingly, the District Court's grant of summary judgment was proper only if it appears "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. Kautz, as the non-moving party, is entitled to every favorable inference that can be drawn from the record. Carrasca, 313 F.3d at 833.
The District Court's conclusion that Kautz has "made out a prima facie case," Kautz v. Met-Pro Corp., No. Civ. A. 02-CV-8610, 2004 WL 1102773, at *3 (E.D. Pa., May 17, 2004), is not disputed by Met-Pro on appeal. The sole issue of contention in this appeal, therefore, is whether Kautz has succeeded in creating an issue of fact as to whether Met-Pro's proffered nondiscriminatory reasons for eliminating Kautz's position are a pretext.
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Court held that proof of pretext does not have to include evidence of discrimination, but rather "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." 530 U.S. at 147.
Although Reeves makes clear that we may not require affirmative evidence of discrimination in addition to proof of pretext, it does not change our standard for proving pretext which "places a difficult burden on the plaintiff." Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). In order to avoid summary judgment, Fuentes requires a plaintiff to put forward "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence." Id. (internal quotation and citation omitted; emphasis in the original).
Fuentes further explains that "to avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons... was either a post hoc fabrication or otherwise did not actually motivate the employment action." Id. at 764 (emphasis in the original); see also Logue v. Int'l Rehab. Assocs., Inc., 837 F.2d 150, 155 (3d Cir. 1988) (holding that "the district court erred in failing to consider all of [the employer's] proffered evidence of legitimate business reasons for [the plaintiff's] termination"). In a footnote, Fuentes allowed for the possibility that in a case where a "defendant proffers a bagful of legitimate reasons," casting "substantial doubt on a fair number of them... may impede the employer's credibility seriously enough so that a factfinder may rationally disbelieve the remaining proffered reasons." Id. at 764 n. 7; see also Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1074-1075 (3d Cir. 1996) (en banc) (determining that where a plaintiff: (1) completely undermined the employer's main complaint by proving that she was on jury duty on several days when she was alleged to have given out free drinks; (2) called into question the credibility of central employer witnesses; and (3) presented affirmative evidence of retaliatory bias against her, there had been a showing of pretext and there was, in that situation of overwhelming evidence, no need to discuss whether pretext had been shown for each allegation that the employee was tardy or in violation of the grooming policy).
Fuentes instructs that pretext is not shown by evidence that "the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Id. at 765.
We have applied the principles explained in Fuentes to require plaintiffs to present evidence contradicting the core facts put forward by the employer as the legitimate reason for its decision. See Stanziale, 200 F.3d at 106 (upholding summary judgment where the plaintiff attempted to show pretext by disputing the importance of the difference in educational qualifications between himself and the person hired rather than challenging the disparity itself or proving that the qualifications at issue bore no actual relationship to the employment being sought); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1110 (3d Cir. 1997) (en banc) (determining that summary judgment was appropriate notwithstanding the plaintiff's contention that his failure to meet or approach his goal of raising $1.5 billion in financing was due to factors beyond his control, stating that "the relevant question is not whether Keller could have done better; instead, the relevant question is whether the evidence shows that it was so clear that Keller could not have done better that ORIX Credit Alliance could not have believed otherwise").
An employer may not use evaluating criteria which lacks any relationship at all to the performance of the employee being evaluated because to do so would be inconsistent with and contradictory to the employer's stated purpose. See Fuentes, 32 F.3d at 765. Absent this type of violation of the Fuentes standard, we will not second guess the method an employer uses to evaluate its employees. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) ("Whether sales quotas or evaluation scores are a more appropriate measure of a manager's performance is not for the court (or factfinder) to decide."); Keller, 130 F.3d at 1109 ("The question is not whether the employer made the best or even a sound business decision; it is whether the real reason is discrimination."); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) ("[O]ur inquiry must ...