Appeal from the United States District Court for the District of New Jersey - Camden (D.C. Civil No. 84-1669)
Before HUNTER, MANSMANN, Circuit Judges, and McCUNE, District Judge.*fn* Before GIBBONS, Chief Judge, SEITZ, ADAMS,*fn** WEIS, HIGGINBOTHAM, SLOVITER, BECKER, STAPLETON, MANSMANN, ALDISERT,**fn** and HUNTER,***fn** Circuit Judges.
Plaintiff Anthony J. Chipollini brought this action against Spencer Gifts, Inc. ("Spencer") alleging that his termination from employment at age 58 violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1982) (as amended) and demanding a jury trial. The district court concluded that the indirect evidentiary materials of record could raise no issue of fact as to whether Chipollini's age was a determinative factor in Spencer's decision to terminate him. The court then credited Spencer's evidence of a non-discriminatory motive and granted Spencer's motion for summary judgment.
We granted rehearing in banc to consider whether, within the confines of a summary judgment motion, there existed a genuine issue of material fact regarding the reason for Chipollini's discharge and whether circumstantial or indirect evidence of discrimination could serve to challenge the employer's reason for discharge as a mere pretext for discriminatory intent. Specifically, we examine the burden of production under Fed. R. Civ. P. 56(e) which a defendant employer must meet to support a motion for summary judgment based upon the employer's demonstrated ability to produce evidence at trial on a non-discriminatory reason for its challenged action and the plaintiff's burden to withstand the motion under these circumstances.
The defendant's burden of production as the moving party on summary judgment generally is to show that the plaintiff cannot meet his burden of proof at trial. We agree with the plaintiff and amicus curiae the Equal Employment Opportunity Commission that a defendant employer is not entitled to summary judgment merely by showing the plaintiff's inability to prove by direct evidence that the defendant's proferred reason is a pretext for age discrimination. Because the plaintiff may meet in alternate ways his burden to show that age was a determinative factor in his discharge, the plaintiff is entitled to show that the employer's explanation was pretextual by preferring evidence which is circumstantial or indirect as well as that which shows directly discriminatory animus ("smoking gun" evidence).
Accordingly, the district court erred in effectively combining what should have been separate inquiries by requiring that, in challenging the defendant's proferred reason, Chipollini must point to direct evidence that his age was a determinative factor in the defendant's decision to terminate him.
In light of the evidentiary materials of record which raise issues of fact as to Spencer's asserted reason for Chipollini's discharge, we hold that the defendant has failed to show that the plaintiff can raise no genuine issue of material fact. Therefore, we will reverse the district court's entry of summary judgment for Spencer.
The following facts are stipulated. From November, 1971 until October 1982, Chipollini was employed by Spencer Gifts as Construction Manager. He coordinated and supervised the construction of Spencer's new stores and remodeling and maintenance of Spencer's existing stores. Chipollini performed his new store construction duties in a satisfactory manner and received pay increases and bonuses every year of his employment except the last year. In June, 1982 Ralph Liberatore, who had been with Spencer as a field construction supervisor since 1979, was promoted, at Chipollini's recommendation, to replace Chipollini's assistant construction manager.
In early October, 1982, Spencer's parent company imposed a moratorium on new store construction by Spencer. Shortly thereafter Chipollini, who had attained 58 years of age and ten years of service, was terminated. He was informed at the time that the termination was due to a cutback in expenses and the moratorium on new store construction. Chipollini's duties, and later his title as construction manager, were assumed by Liberatore who was 43 years of age.
In his complaint, Chipollini alleged that Spencer violated the ADEA because his age was a determining factor in the decision to terminate him and to replace him with a younger employee. Spencer answered that Chipollini was terminated because of a reduction in force of executives necessitated by a virtual cessation of store construction and remodeling and because of his indifferent, uncooperative and ineffective attitude regarding certain special projects. Thus, the issue for resolution was framed by those opposing factual contentions. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).
After discovery was completed, Spencer moved for summary judgment. The district court granted Spencer's motion after concluding from evidentiary materials of record that Chipollini would be unable to prove at trial that his age was a reason for his termination.
Spencer, in its motion for summary judgment, asserted that the evidentiary materials of record established that Chipollini would not be able to prove at trial either that he was performing satisfactorily or that the asserted reason for his dismissal was pretextual. Spencer identified portions of depositions tending to show that Chipollini was inflexible and uncooperative, that he had failed to perform satisfactorily as Spencer's "energy warden" and that his general performance ratings had gradually declined. The district court noted record evidence that Chipollini's ratings had declined only from "excellent" to "good". The court concluded that this evidence established that the plaintiff was performing satisfactorily, and the defendant does not seriously contest this.
The district court then turned to the other evidence which the defendant proferred regarding its reason for discharging Chipollini. Spencer had further supported its motion with the affidavit of L. Eugene Brog, President of Spencer Gifts, attesting to the need for a reduction in force of construction management personnel. Spencer asserted that the need for staff reduction when coupled with Chipollini's declining performance and assertedly inflexible and uncooperative attitude was a legitimate, non-discriminatory reason for the plaintiff's termination and that the plaintiff's submissions were inadequate to support a finding of pretext.
The district court found evidentiary materials of record sufficient to carry the plaintiff's burden to establish a McDonnell Douglas prima facie case of age discrimination and also found that the defendant's evidentiary material, if credited, would satisfy its burden of articulating a non-discriminatory reason for the plaintiff's discharge. The district court concluded, therefore, that the plaintiff must show that he can raise an issue as to whether the defendant's asserted reason is a pretext for discrimination. Finding no evidentiary materials of record which "necessarily" show that the true reason is age discrimination, the court granted summary judgment for Spencer.
On appeal, Chipollini asserts that Spencer has failed to meet its burden of showing that the evidence raises no material fact issues. He asserts that evidence of record would allow a jury to infer that Spencer's asserted reason for retaining Liberatore in performance to Chipollini is not its true reason. He further asserts that, in reviewing his submissions, the district court erred both in requiring that he have some direct evidence of age discrimination and in deciding disputed issues of material fact by resolving competing evidentiary inferences in favor of Spencer. We agree.
On review of a grant of summary judgment the appellate court is required to apply the same test the district court should have utilized initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977). A trial court may enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." Fed. R. Civ. P. 56(c). "As to materiality, the substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505, 2510 (1986).
The burden to demonstrate the absence of material fact issues remains with the moving party regardless of which party would have the burden of persuasion at trial. If, however, the nonmovant will bear the burden of persuasion at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986).
Under the ADEA, the ultimate burden remains with the plaintiff to prove that age was a determinative factor in the defendant's employer's decision. See e.g., Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984). The plaintiff need not prove that age was the employer's sole or exclusive consideration, but must prove that age made a difference in the decision. Id. A plaintiff may establish his case with direct evidence that the employer acted with discriminatory motivation. When direct evidence is available, ...