Burt N. Sempier v. Johnson & Higgins

OPINION OF THE COURT

On March 9, 1994, the district court granted summary judgment in favor of Johnson & Higgins (“J & H”), the employer of appellant Burt Sempier. Sempier now appeals the district court’s grant of summary judgment on his Age Discrimination in Employment Act (“ADEA”) claim, 29 U.S.C. § 623 (1988), 1 and the discretionary dismissal of his pendent state law claims. He also raises as error the district court’s substitution of a “Bill of Particulars” in place of his interrogatories.

We have jurisdiction pursuant to 28 U.S.C. § 1291 to review the March 9, 1994 final order of the district court. Because the record reflects a genuine issue of material fact regarding whether J & H’s asserted nondiscriminatory reasons for discharging Sempier are pretextual, we will reverse the summary judgment entered in favor of J & H. We also conclude that the district court abused its discretion in substituting its own “Bill of Particulars” for Sempier’s interrogatories.

I

Sempier joined appellee J & H, an insurance brokerage and employee benefits consulting firm, in 1968. 2 Sempier worked as Comptroller until 1971 when he became Treasurer of J & H. In 1984, J & H created a new position of Chief Financial Officer (“CFO”), and the Board of Directors elected Sempier to that post.

The parties dispute whether the J & H directors criticized Sempier’s performance as CFO. Sempier avers that no one advised him that his performance was less than satisfactory nor did anyone bring to his attention any deficiencies in his performance of his functions. App. 300. Robert Hatcher, the *726 firm’s chairman who was Sempier’s friend and had been instrumental in Sempier being elected as CFO, states that he was generally-pleased with Sempier’s work. At the same time, he acknowledges that other directors had criticized Sempier’s performance. App. 363-65. Other J & H directors state in affidavits that they believed that Sempier performed below expectations. App. 727 (affidavit of Eric Johnson); App. 778-79 (affidavit of - Kenneth Heeken).

In 1985, one year after Sempier assumed his duties as CFO, an outside audit of the Finance Department, requested by J & H director Eric Johnson, criticized the department’s operations. App. 728-29. After further investigation, Johnson sought to have Sempier replaced. Despite Johnson’s criticisms, J & H unanimously elected Sempier to the Board of Directors in 1986. Hatcher supported Sempier’s election to the Board of Directors because he believed that this move would assist Sempier in improving the Finance Department’s operations. When Sem-pier was elected, J & H required that he execute a letter of resignation that would become effective upon a two-thirds vote of the Board of Directors.

In May 1987, J & H removed Sempier from his responsibilities' as CFO and made him Chief Administrative Officer (“CAO”) in charge of Management Information Systems (“MIS”), Human Resources, Professional Development, and Real Estate and Facilities. Sempier was unanimously reelected to the Board in 1989. Both sides dispute how Sem-pier performed as CAO.

Due to the increasing importance of MIS services and the department’s unsatisfactory record, J & H decided to elevate the MIS department’s status by hiring a Chief Information Officer (“CIO”), thereby removing MIS from Sempier’s supervision. Notwithstanding some lobbying by Hatcher, the firm denied Sempier the CIO position. In December 1989, J & H hired Alan Page, who is fourteen years younger than Sempier, as CIO. The directors elected Page to the board in 1990.

Three months later, j & H hired Thomas Carpenter, who is four years younger than Sempier, to assume responsibility for Human Resources and Professional Development, starting in May 1990. Carpenter’s arrival left Sempier with significantly reduced responsibilities.

In May 1989, before either Page or Carpenter had been hired, J & H had instituted an early retirement program to retire “redundant” and “poorly performing” employees who were 55 years of age or older. App. 636-37. The firm intended to use the program either to “pull” employees into retirement through incentives or to “push” them into retirement through involuntary “terminations” which were to be characterized as downsizing. App. 637 (Exhibit 8).

In April 1990, Hatcher, who was still the Chairman of J & H, advised Sempier to retire early with certain enhancements to his existing retirement package. Hatcher stated that Sempier had “lost credibility” with unnamed senior managers. App. 301. Sempier refused to retire. Hatcher responded, using strong and unequivocal language, that Sem-pier had no choice but to retire or to be forced out. App. 302.

Between April 1990 and April 1991, J & H engaged in extended, and occasionally bitter, negotiations with Sempier seeking to obtain his retirement or resignation. In January 1991, David Olsen succeeded Hatcher as Chairman of J & H. When, in the spring of 1991, Sempier told Olsen that he had hired a lawyer, Olsen told Sempier that he could no longer return to J & H and should vacate his office. App. 81. At the same time, Olsen wrote the firm’s general counsel that “[i]t’s obviously time for hardball.” App. 80. After Sempier consistently refused to retire, the Board made effective Sempier’s previously executed resignation in June 1991.

Sempier filed an age discrimination claim with the Equal Employment Opportunity Commission, received a right to sue letter, and instituted an ADEA suit in the District of New Jersey with pendent state law claims for breach of contract as well as violations of the New Jersey Law Against Discrimination and the New Jersey Business Corporations Act. J & H answered that Sempier had been discharged for poor performance.

*727 At the outset of the litigation, Sempier served two sets of interrogatories and a series of document requests on J & H. When J & H refused to respond to a substantial portion of the discovery requested, Sempier sought an order from the magistrate judge which would have compelled J & H to respond. The magistrate judge denied Sempier’s motion. On appeal, the district court judge vacated the order of denial but remanded the dispute to the magistrate judge without entering an order compelling discovery. On remand, the magistrate judge relieved J & H from answering the original two sets of interrogatories and required that Sempier draft a third set of interrogatories. App. 563-64. After J & H refused to answer almost all of these interrogatories, Sempier again sought a second order compelling discovery. The magistrate judge denied Sempier’s motion to compel answers and ordered J & H to provide information responding to a “Bill of Particulars” drafted by the court. App. 576. On appeal, the district court affirmed the magistrate judge’s order and added one question of its own to the “Bill of Particulars.”

Between November and December 1993, the parties disputed whether J & H had complied with the court’s orders to answer the court’s questions and to provide documents. In December, Sempier filed additional motions for an order to compel discovery and for partial summary judgment. J & H replied with its motion for summary judgment.

The district court granted J & H’s summary judgment motion on the ADEA claim and dismissed the remaining pendent claims without prejudice. The district court expressed concern that Sempier had not made out a prima facie case because of an inability to show that he was a qualified employee or replaced by a sufficiently younger employee to raise an inference of age discrimination. Nonetheless, it turned to J & H’s asserted nondiseriminatory reasons for Sempier’s discharge and Sempier’s evidence of pretext.

The district court found that J & H had come forward with two alleged reasons for Sempier’s discharge: (1) that Sempier’s reduced responsibilities did not justify his continued presence on the Board of Directors and (2) that Sempier’s poor performance had justified the reduction in his responsibilities and eventual discharge. Moreover, the district court held that Sempier had not produced sufficient evidence to allow a jury to find that J & H’s alleged nondiseriminatory reasons were a pretext for discrimination. Accordingly, the court entered a judgment in favor of J & H, denied Sempier’s motion for partial summary judgment, and dismissed Sempier’s pendent state law claims without prejudice.

Sempier filed a timely appeal.

II

A.

When we review a grant of summary judgment, we apply the same test that the district court should have applied initially. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dism’d, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). Summary judgment is appropriate only when the admissible evidence fails to demonstrate a dispute of material fact and the moving party is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.P. 56(c) (1994). When the moving party (here, J & H) does not bear the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the non-moving party’s (here, Sempier’s) evidence is insufficient to carry its burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Thereafter, the nonmov-ing party creates a genuine issue of material fact if sufficient evidence is provided to allow a reasonable jury to find for him at trial. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

In reviewing the record, the court must give the nonmoving party the benefit of all reasonable inferences. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.1992); Chipollini, 814 F.2d at 900; see also id. at 901 (discussing the impropriety of credibility de *728 terminations on summary judgment); Josey, 996 F.2d at 639 (same).

B.

Sempier prosecuted his case on the “pretext” theory announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and later clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) and St. Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). 3

As applied to ADEA cases, the plaintiff establishes a prima facie case by showing that (1) he is over 40, (2) he is qualified for the position in question, (3) he suffered an adverse employment decision, and (4) he was replaced by a sufficiently younger person to create an inference of age discrimination. Chipollini, 814 F.2d at 897. 4 This showing creates a presumption of age discrimination that the employer must rebut by stating a legitimate nondiscriminatory reason for the adverse employment decision. Hicks, — U.S. at -, 113 S.Ct. at 2747; Chipollini 814 F.2d at 897. The plaintiff then has the opportunity to demonstrate that the employer’s stated reasons were not its true reasons but were a pretext for discrimination. Hicks, — U.S. at -, 113 S.Ct. at 2747; Chipollini, 814 F.2d at 897. He may do this through direct or circumstantial evidence of falsity or discrimination. Chauhan v. M. Alfieri Co., Inc., 897 F.2d 123, 128 (3d Cir.1990); Chipollini, 814 F.2d at 898-99.

Moreover, to defeat a summary judgment motion based on a defendant’s proffer of a nondiscriminatory reason, a plaintiff who has made a prima facie showing of discrimination need only point to evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994). A plaintiff is not required to produce evidence which necessarily leads to the conclusion “that the employer did not act for nondiscriminatory reasons.” Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).

Ill

Without holding that Sempier failed to establish a prima facie case, the district court questioned whether Sempier made out a pri-ma facie ease of discrimination. The district court doubted that Sempier had shown that he was qualified to work as the Chief Administrative Officer of J & H and doubted that he was replaced by a sufficiently younger employee to raise an inference of age discrimination.

We note however that the prima facie case under the McDonnell Douglas-Burdine pretext framework is not intended to be onerous. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94. The prima facie case merely “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Fur nco Construction Co. v. Waters, *729 438 U.S. 567, 577, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978).

A.

We determine a plaintiffs qualifications for purposes of proving a prima facie case by an objective standard. Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir.1990); Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 725, 107 L.Ed.2d 745 (1990). “[Wjhile objective job qualifications should be considered in evaluating the plaintiffs prima facie case, the question of whether an employee possesses a subjective quality, such as leadership or management skill, is better left to” consideration of whether the employer’s nondiscriminatory reason for discharge is pretext. Weldon, 896 F.2d at 798. “Thus, to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext.” Id. at 798-99.

Here, the district court misapplied this rule when it evaluated Sempier’s qualification by reference to J & H’s subjective criticism that Sempier lacked “management oriented” skills and leadership ability. App. 895. Sempier had the objective experience and education necessary to qualify as a viable candidate for the positions he held. He had held executive level positions at J & H for over twenty years.

Sempier also relied on the affidavit and depositions of Hatcher, J & H’s chairman. Hatcher had testified that he had been satisfied with Sempier’s performance. App. 895. In response to this record, the district court observed, “[although it would be unusual for a corporation to place an unqualified individual in an executive position, it is not unimaginable.” App. 896-97. In so stating, the district court failed, as required on summary judgment, to consider the evidence in the light most favorable to Sempier, the nonmoving party. See Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.1992); Chipollini, 814 F.2d at 900. Indeed, the district court apparently inferred that Sempier was unqualified for the position he held.

Contrary to the inference of the district court, if we consider the evidence in the fight most favorable to Sempier, the record of his twenty years employment as an executive, his record as Comptroller and then Treasurer of J & H, his election to the Board on two occasions, and his appointment as Chief Financial Officer and then as Chief Administrative Officer leads to the almost inevitable inference that he was qualified for the position from which he was discharged. As we have said in a similar context, “[t]hus, [plaintiffs] satisfactory performance of duties over a long period of time leading to a promotion clearly established his qualifications for the job.” Jalil, 873 F.2d at 707. Sempier’s qualifications therefore satisfy the second prong of the prima facie case that Sempier was charged with establishing, thus putting to rest the doubts raised by the district court.

B.

To complete his prima facie case, Sempier does not need to produce compelling evidence or conclusive proof that J & H’s adverse employment decision resulted from age discrimination. Chipollini, 814 F.2d at 900. Rather he may point to a sufficient age difference between himself and his replacement such that a fact-finder can reasonably conclude that the employment decision was made on the basis of age. Maxfield v. Sinclair Intern’l, 766 F.2d 788, 792 (3d Cir.), cert. denied, 474 U.S. 1057, 106 S.Ct. 796, 88 L.Ed.2d 773 (1985). Nor is there any particular age difference that must be shown. Id. Different courts have held, for instance, that a five year difference can be sufficient, Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir.1981), but that a one year difference cannot. Gray, 957 F.2d at 1087.

The district court in this case considered only the four year age difference between Sempier and Carpenter, who had taken over some of Sempier’s responsibilities. However, we are not limited to considering only Sempier’s final replacement. Four months *730 prior to the date that Carpenter became responsible for Human Resources and Professional Development at J & H, a substantial portion of Sempier’s other functions were transferred to Alan Page. Page is well over ten years younger than Sempier. App. 711. The combined differences in age between Sempier on the one hand and Page and Carpenter on the other is clearly sufficient to satisfy the fourth prong of a prima facie case by raising an inference of age discrimination. 5

IV

A.

Having concluded that the record is more than sufficient to dispel the district court’s doubts as to Sempier’s prima facie case, we turn now to consider the evidence of J & H’s alleged reasons for Sempier’s discharge. As we earlier stated, after the plaintiff has established a prima facie case, the employer must produce evidence of a nondiseriminatory reason to rebut the presumption of discrimination created by the prima facie case. Hicks, - U.S. at -, 113 S.Ct. at 2747; Chipollini, 814 F.2d at 897.

Here, J & H has presented two reasons. First, J & H states that it terminated Sempier because his company duties no longer justified retaining him in his position. Second, it contends that Sempier performed those duties poorly. J & H attempted to establish each of these justifications through affidavits of J & H executives and directors. As we understand the record, J & H’s nondiscriminatory reasons for Sempier’s discharge come down to this; Sempier performed so poorly that almost all of his responsibilities at the firm were transferred to others, leading ultimately to Sempier’s discharge.

J & H produced the affidavits of two directors, who had previously supervised Sem-pier, reflecting the directors’ discontent with Sempier’s work. App. 778-79, 783-84 (affidavit of Hecken); App. 726-32 (affidavit of Johnson). Additionally, Hatcher’s affidavit averred that many directors did not regard Sempier highly and that Hatcher had used his influence to have Sempier elected to the Board against the other directors’ wishes. App. 365, 369-70. To corroborate these assertions, J & H included a consultant’s report that criticized the operations of the finance department during 1985-1987 when Sempier served as CFO. App. 738-749. Finally, the company produced documents disclosing that Sempier received less compensation from the directors’ merit compensation pool than some of the other directors who held comparable positions.

B.

On the other hand, Sempier claims that these allegations of poor performance are not worthy of credence and are no more than a pretext for discrimination. The Supreme Court, in Saint Mary’s Honor Center v. Hicks, — U.S. -, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), recently clarified the showing of pretext that a plaintiff must make to win a discrimination case. Rejection of *731 the employer’s nondiscriminatory explanation does not compel a verdict in favor of the employee, but it permits the trier of fact to infer discrimination and find for the plaintiff on the basis of the allegations of discrimination in his prima facie case. Hicks, — U.S. at -, 113 S.Ct. at 2749; Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994); Seman v. Coplay Cement Co., 26 F.3d 428, 433 (3d Cir.1994). “The factfinder’s disbelief of the reasons put forward by the [employer] ... may, together with the elements of the [employee’s] prima facie ease, suffice to show intentional discrimination.” Hicks, — U.S. at -, 113 S.Ct. at 2749.

Accordingly, “a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Fuentes, 32 F.3d at 764 (emphasis in original). If the plaintiff produces sufficient evidence of pretext, he need not produce additional evidence of discrimination beyond his prima facie ease to proceed to trial. Id.

Pretext is not demonstrated by showing simply that the employer was mistaken. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531 (3d Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993). Instead the record is examined for evidence of inconsistencies or anomalies that could support an inference that the employer did not act for its stated reasons. Josey v. John R. Hollinsworth Corp., 996 F.2d 632, 638 (3d Cir.1993).

Thus, we turn to the record to determine whether Sempier has produced sufficient evidence to allow a jury to find that J & H did not terminate him for poor performance. Sempier emphasizes three evidentiary threads which create a genuine issue of material fact. He first points to statements in his own affidavit, in Hatcher’s affidavit, and in Hatcher’s deposition testimony that his performance was satisfactory. App. 321, 325 (Sempier); App. 363-65 (Hatcher); App. 797 (Hatcher). The district court found that Hatcher’s additional statement that other directors did not agree with Hatcher’s favorable assessment undermined the credibility of Hatcher’s assertions of satisfactory performance. While we may or may not find Sem-pier’s self evaluation and Hatcher’s assessments of Sempier’s performance to be compelling evaluations of Sempier’s work, it is neither our role nor the district court’s role on summary judgment to compare the testimony of various affiants and decide who is credible. Chipollini, 814 F.2d at 901; Josey, 996 F.2d at 637.

The district court, citing Billet ¶. CIGNA Corp., 940 F.2d 812 (3d Cir.1991), also concluded that Sempier’s self evaluation was meaningless because only J & H’s evaluation of Sempier’s performance was at issue. Billet states that the inquiry into pretext centers upon the employer’s beliefs and not the employee’s own perceptions. Id. at 825 (“[plaintiff’s] view of his performance is not at issue; what matters is the perception of the decision maker.”). Nonetheless, Billet does not stand for the proposition that the employee’s belief that his performance was satisfactory is never relevant. Billet concluded that the employee’s assertions of his own good performance were insufficient to prevent summary judgment where the employer produced performance reviews and other documentary evidence of misconduct and insubordination that demonstrated poor performance. Id. at 818-22.

Where, as here, Sempier asserts not only that he performed well but that he never received any unfavorable criticism that his performance was poor or inadequate, the jury could conclude that J & H’s failure to fault Sempier’s performance for the twenty years prior to the negotiations leading to his discharge makes suspect its post hoc assertions of poor performance. This is especially true when J & H has failed to produce any other evidence of poor performance or make specific allegations of Sempier’s deficiencies.

Sempier next points to two formal performance evaluations from 1988 and 1989 in which Hecken, Sempier’s supervisor, wrote that Sempier’s performance was satisfactory. App. 308-19. In considering these evaluations, the district court stated, solely on the *732 basis of Hecken’s affidavit, that “[t]he evaluations were a first attempt by Defendant to open the lines of communication between lower level directors and the senior members of the board to whom they reported. Viewed in this light, they are of little value in determining Plaintiffs true level of performance.” App. 906. In so stating, the district court ignored the testimony of Hatcher at his deposition that any critical comments concerning Sempier’s performance should be recorded in the performance evaluations. App. 799. Hatcher also said that the compensation committee had previously used the evaluations in determining directors’ compensation. App. 824-26. On summary judgment, it is not the court’s role to weigh the disputed evidence and decide which is more probative.

Finally, Sempier points to the coercive early retirement program that J & H instituted shortly before it forced Sempier’s resignation. J & H documents showed that the company instituted this program to generate a significant number of retirements largely through monetary incentives. The district court correctly concluded that the use of an early retirement program to dismiss redundant or underperforming employees is not by itself a violation of the ADEA. See Gray v. York Newspapers, 957 F.2d 1070, 1080-81 (3d Cir.1992); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1422 (3d Cir.), cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991). On the other hand, an early retirement program designed to force employees who reach a senior age to leave or face significant pressure to resign or retire might itself create an inference of age discrimination. Gray, 957 F.2d at 1081 (citing Henn v. National Geographic Soc’y, 819 F.2d 824, 826, 828-29 (7th Cir.), cert. denied, 484 U.S. 964, 108 S.Ct. 454, 98 L.Ed.2d 394 (1987)). It is impermissible to force older employees to choose between retirement or termination in an effort to eliminate older workers on account of their age.

The record clearly discloses that Hatcher told Sempier in no uncertain terms that he could either retire, face continuing pressures to retire, or be terminated. 6 The record also reflects a mandatory policy at J & H that directors must retire at set intervals corresponding to age. Later, after the company learned that Sempier had sought legal counsel, Olsen, J & H’s Chairman, told Sempier to pack his office and leave. While this evidence does not itself establish age discrimination, a jury might reasonably determine from these events that J & H offered Sempier early retirement as an effort to remove him because of his age and not because of poor performance.

In cases such as the present one, the question for the court is whether the record “could support an inference that the employer did not act for non-discriminatory reasons, not whether the evidence necessarily leads to that conclusion that the employer did act for discriminatory reasons.” Chipollini, 814 F.2d at 900 (emphasis in original); see also Fuentes, 32 F.3d at 764 (stating that the plaintiff need not show more than that the employer’s articulated reasons were implausible to survive summary judgment). When the evidence is read in the light most favorable to Sempier, a jury could reasonably find that J & H did not terminate him because of poor performance but rather discharged him because of his age.

V

To recap, once Sempier had made out a prima facie case of age discrimination, a presumption arose that J & H had discriminated against him. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094. J & H dispelled that presumption by coming forward with a nondiscriminatory reason for Sempier’s discharge, leaving nothing but the permissible inference of discrimination created by the prima facie case.