Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 89-8941.
Sloviter, Chief Judge, and Greenberg and Weis, Circuit Judges. Sloviter, Chief Judge, dissenting.
This is an appeal from an order of November 16, 1990, granting a directed verdict for the employer in an action under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. The action was brought by Lewis H. Billet, Jr., a former sales manager or director of Connecticut General Life Insurance Company, following his termination as part of a management level reorganization consolidating high-level management positions. After the jury was unable to reach a verdict, the district court granted a motion for directed verdict in favor of Connecticut General on which it had reserved decision. The district court held that there was not "enough evidence in this case for a jury to make a finding of pretext," referring to Connecticut General's articulated business reasons for terminating Billet. We conclude that Billet failed to cast legally sufficient doubt on these articulated reasons to survive the motion for a directed verdict and therefore we will affirm the district court's order.
Billet joined Connecticut General in 1955.*fn1 He continued to be employed there until November 1, 1988, when he was advised that his position as sales manager for the Philadelphia group sales office was being eliminated and that his employment would be terminated effective January 31, 1989. At the date of his termination, Billet was 55 years old.
On August 16, 1989, Billet filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination based on age. This charge was referred to the Pennsylvania Human Relations Commission for the purpose of dual filing.*fn2 In response, Connecticut General articulated numerous reasons for terminating Billet, including a poor evaluation of him, his forging of a supervisor's signature, his interrupting a sales staff meeting, and his disregard for company policy and procedure. On December 18, 1989, more than 60 days after his EEOC filing, Billet commenced the present action in the district court, alleging that he was terminated because of his age in violation of the ADEA.
Connecticut General moved for summary judgment and as a portion of his response Billet filed an affidavit of his co-worker, Andrew Baker, also a former sales manager in the Philadelphia office. The motion for summary judgment was denied but Connecticut General, anticipating that Baker would be called as a witness at trial, then filed a motion in limine seeking to limit his testimony. The trial started on November 5, 1990, and when Billet called Baker as a witness, Connecticut General reminded the court of its outstanding in limine motion. The court stated that Baker could testify only about work he did directly with Billet and it later sustained objections by Connecticut General to certain questions asked Baker.
Connecticut General moved for a directed verdict at the close of Billet's case and the district court took this motion under advisement. Connecticut General then presented evidence and again moved for a directed verdict at the conclusion of all of the evidence but the court also reserved decision on this motion. Connecticut General argued that it was entitled to a directed verdict, as Billet had failed to present evidence sufficient to challenge its articulated reasons for his termination.
On November 15, 1990, the district court submitted the case to the jury, though it refused to allow the jury to consider the issue of whether Connecticut General's conduct was "willful" under the ADEA, warranting liquidated damages. On November 16, 1990, the jury reported that it was deadlocked and unable to return a verdict in favor of either party. At that time, Billet moved, pursuant to Fed. R. Civ. P. 48 for a majority verdict, which requires the consent of both parties. Connecticut General refused and the jury was discharged.
Immediately thereafter, the district court granted Connecticut General's motion for a directed verdict made at the close of all the evidence, stating that there was not enough evidence for a jury to find pretext. On November 16, 1990, the district court issued an order directing a verdict in favor of Connecticut General and entered judgment thereon. This appeal followed. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343, and we have jurisdiction under 28 U.S.C. § 1291.
Billet first claims that the district court erred in granting Connecticut General's motion for a directed verdict. Second, he argues that the district court erred in precluding the jury from considering the issue of willfulness. Third, he contends that the district court erred in sustaining Connecticut General's objections to certain questions asked Baker. We consider the claims of errors seriatim and we reject each.
A. Grant of the Directed Verdict
Our review of the grant of a directed verdict is plenary and thus we apply the same standard as did the district court. Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990). Accordingly, we may affirm the order for the directed verdict only if there was insufficient evidence from which the jury could reasonably have found for Billet, as the nonmoving party, and we must view that evidence in a light favorable to Billet and draw all reasonable inferences in his favor. Id. In particular, as applied in this ADEA disparate treatment case, this standard requires that we affirm if there is not "substantial evidence in the record to support the plaintiff's contention that 'but for' his age he would not have been discharged." Steffen v. Meridian Life Ins. Co., 859 F.2d 534, 546 (7th Cir. 1988), cert. denied, 491 U.S. 907, 109 S. Ct. 3191, 105 L. Ed. 2d 699 (1989). See also Healy v. New York Life Insurance Co., 860 F.2d 1209, 1219 (3d Cir. 1988), cert. denied, 490 U.S. 1098, 109 S. Ct. 2449, 104 L. Ed. 2d 1004 (1989) (affirming a summary judgment for the defendant-employer, stating that the plaintiff had not presented the court with a genuine issue of material fact as to whether "but for" his age he would not have been discharged). We must take the record as a whole and determine whether a rational trier of fact could have found for Billet. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986).
The ADEA proscribes discrimination against an individual over age 40 with respect to "compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a); see id. § 631. To recover in an age discrimination suit, "a plaintiff must prove by a preponderance of the evidence that age was the determinative factor in the employer's decision" at issue. Bartek v. Urban Redevelopment Authority of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989). Though the plaintiff has the ultimate burden to prove that age was a determinative factor, he does not have to prove that age was the sole or exclusive reason, but rather that "age made a difference" in the employer's decision. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S. Ct. 592, 83 L. Ed. 2d 702 (1984).
Under the ADEA, a plaintiff must first prove a prima facie case of discrimination but this can be done with either direct or circumstantial evidence.*fn3 Maxfield v. Sinclair International, 766 F.2d 788, 791 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986). If the plaintiff establishes his prima facie case, an inference of unlawful discrimination arises. The burden then shifts to the defendant employer who can dispel the inference of discrimination by articulating a legitimate, nondiscriminatory reason for the plaintiff's discharge. If the defendant meets this burden of production of evidence, the plaintiff must prove by a preponderance of the evidence that the articulated reasons are a pretext for discrimination. Bruno v. W.B. Saunders Co., 882 F.2d 760, 764 (3d Cir. 1989), cert. denied, 493 U.S. 1062, 110 S. Ct. 880, 107 L. Ed. 2d 962 (1990). The plaintiff can prove pretext directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Fowle v. C & C Cola, 868 F.2d 59, 62 (3d Cir. 1989). See also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987) (indirect evidence can establish pretext). However, this indirect evidence must be enough to support a reasonable inference that the reasons given for the employment decision are pretextual. Merely reciting that age was the reason for the decision does not make it so. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S. Ct. 91, 88 L. Ed. 2d 74 (1985) (conclusory allegations of discrimination are insufficient to satisfy the requirements of Fed. R. Civ. P. 56(e)). See also Matsushita, 475 U.S. at 586, 106 S. Ct. at 1356 (in response to summary judgment or directed verdict motion, the nonmoving party must show more than that there is some "metaphysical doubt" as to the material facts).
Thus we, along with numerous other courts, have stated that summary dispositions can be applicable in employment age discrimination cases. Healy, 860 F.2d at 1219 (only when the plaintiff proffers evidence of pretext and a genuine issue of fact exists as to defendant's articulated reasons is summary judgment foreclosed). See also Smith v. Goodyear, 895 F.2d 467, 471-72 (8th Cir. 1990) (reversing an ADEA jury verdict, explaining, "the jury could rationally have believed that plaintiff ought in good conscience have been permitted to stay . . ., but there is absolutely no substantial evidence in this record that would justify attributing [the employer's] actions to plaintiff's age. . . . This court will not second guess business decisions made by employers, in the absence of some evidence of impermissible motives." (citations omitted)); Carter v. City of Miami, 870 F.2d 578, 584 (11th Cir. 1989) (reversing an ADEA jury verdict and holding that the trial court should have granted a directed verdict where the employer rebutted the prima facie case with evidence of disruptive behavior by and complaints about the plaintiff); Lucas v. Dover Corp., 857 F.2d 1397, 1403 (10th Cir. 1988) (in affirming a judgment notwithstanding the verdict for the employer, the court stated, "in short, while plaintiffs may disagree with [the employer's] evaluation of who was the best qualified employee to fill the consolidated positions, as long as a jury had no reasonable basis for determining that age was a determining factor in those evaluations, the jury verdict for plaintiffs cannot stand.")
Once a case has been tried to a jury on its merits, it is unnecessary for an appellate court to decide whether a prima facie case was established. Bruno, 882 F.2d at 764. Rather, the reviewing court considers the ultimate issue of whether the plaintiff proved by a preponderance of the evidence that age was a determinative factor in the employment decision. Id.
Although it attempts to dispute whether Billet satisfied his prima facie case, Connecticut General acknowledges that since the full case was tried to a jury, the appropriate focus here is on whether Billet submitted sufficient evidence from which a jury, viewing the evidence in a light most favorable to Billet, could find pretext. In light of this, we consider the reasons articulated by Connecticut General for Billet's termination, along with Billet's attempts to refute these reasons, to determine whether a jury could reasonably have found these articulated reasons pretextual, and conclude that there is not sufficient evidence in the record to support Billet's claim that but for his age he would not have been terminated.
In view of the nature of our disposition of the case, we will set forth the evidence at length. Billet joined Connecticut General in 1955 at age 21 selling group indemnity insurance. In 1959, Billet became assistant manager in the Boston office and in 1961 he was promoted to manager of the Cincinnati Group office. In 1966, Billet became sales manager of the Syracuse office, which eventually included all of upstate New York.
In September 1983 Billet became sales manager for the Philadelphia Group Sales office, which almost exclusively sold group indemnity insurance. Between 1984 and 1988, the office twice won a Superior Achievement Award (1984 and 1987), and salespersons in the Philadelphia office often qualified for the Gold Circle, a sales award. In February 1988 Andrew Baker was placed in charge of the pre-paid (i.e., HMO) insurance side of Connecticut General's Philadelphia business.
In 1988, Connecticut General decided to merge its group indemnity product line with its pre-paid health insurance product line and to sell a "managed care" type of insurance, a combination of both indemnity and HMO plans. As part of this reorganization, Connecticut General reduced the number of regions throughout the country from 11 to eight. The Northeast Corridor Region, headquartered in Philadelphia, and the Chesapeake Region, headquartered in Columbia, Maryland, were consolidated into a single region called the East Coast Region, to be headed by a single regional vice president.
The sales manager and regional vice-president positions were affected by this reorganization. The consolidation resulted in the need for only one regional vice president, whereas before both the Northeast and Chesapeake Regions had a vice-president. In addition, since the pre-paid and HMO product lines were merged, only one sales manager was needed in the Philadelphia office, resulting in the elimination of the positions held by Billet and Baker.
In addition to the elimination of one regional vice president and the sales manager positions, a new position of city manager was created in "merged" cities, such as Philadelphia, to oversee the merged operations. On November 1, 1988, El Kenyon, age 40, who had been regional vice president of the Chesapeake region, was named the new regional vice president for the East Coast Region. Joseph Botta, age 39, who had been regional vice president for the Northeast Corridor region, and who was Billet's immediate supervisor, was named to the city manager position for Philadelphia. Kenyon and Botta had each sought the regional vice president position. Botta resigned from the city manager position in June 1989 and was replaced by Larry Savage, age 43.
Billet was informed by letter on November 1, 1988, that due to the reorganization his position had been eliminated and he would be terminated effective January 31, 1989. The same day, Baker, then age 53, Billet's counterpart in the Philadelphia office in that he headed sales of pre-paid plans while Billet headed sales of indemnity plans, was informed that his position as sales manager/director*fn4 was being eliminated. He was, however, offered the position of associate sales manager/ director, reporting to the city manager and he accepted this position. But in January 1989 Baker resigned from Connecticut General.
Prior to the 1988 reorganization, there were two associate sales manager/directors in the Philadelphia office, Vincent Sobocinski, age 34, who reported to Billet, and Virginia Pfeiffer, age 43, who reported to Baker. After the reorganization, Sobocinski became a sales director as did Pfeiffer.*fn5 Pfeiffer, however, resigned in February 1989 and was replaced in April 1989 by Timothy O'Brien, age 30.
The decision to terminate Billet was made by Edward Parry, Vice President of Sales. According to Parry, the termination was part of a nationwide reorganization and reduction in force (RIF). In this reorganization, sales offices and management positions were combined, resulting in a decrease in the number of jobs at management and regional vice president levels. Parry's decision was approved by James Grigsby, head of sales for the Employee Benefits Division, in which Billet worked.
There is no question that, as a result of the reorganization, the positions held by Botta, Billet and Baker were eliminated and two positions, city manager and associate sales manager, were substituted. Thus, there were three persons vying to fill only two positions. Connecticut General articulated a host of reasons why it was Billet who was terminated. We first set out the undisputed facts regarding these reasons and then address Billet's burden and attempt to prove them pretextual.
In an interim evaluation for 1988 in July of that year, Botta, who was then Billet's supervisor, and who was making his first evaluation of Billet, gave him an overall score of 4, based on a 1-5 scale, 1 being the highest.*fn6 As a result of this evaluation, on July 21, 1988, Billet was given a performance warning.
In this review Billet received a 3 in the sales category, a performance described as "poor" or "very poor." In human resources management, Billet received a rating of 5. The review stated that training and attention to integrated product sales education were "virtually non-existent" and that new employees were being trained "'on the job.'" This review also noted that unauthorized quotes were sometimes given out by salespeople and that Billet had inappropriately handled the closing of the Harrisburg office. The review pointed out that Billet was insubordinate and unwilling to take direction from the regional vice-president and noted that he had behaved improperly at a training conference at Southbury, Connecticut. Billet was also criticized for having "only fair relationships" with underwriting. In summarizing the review, Botta noted his "concern" over several specific instances and over Billet's relationship with underwriting and management regarding the integration of product sales.
Pursuant to this performance warning, Billet was put on a 90-day probation during which he was given a list of improvements to make and goals to meet, namely in the areas of human resources management, new sales, relations with the underwriting department and leadership skills. Billet was informed that if, after the probation period, he had not met these goals he would be put on formal probation which could result in his being discharged.
Billet was entitled to a company automobile but, as might be expected, Connecticut General had formal requirements before he could obtain one. It is undisputed that in February 1988 Billet received the paperwork required to replace his automobile but that Botta's signature was required for him to obtain it. Billet, however, circumvented this requirement by printing and signing Botta's name on the requisition form, without Botta's permission or knowledge, in direct violation of the caveat on the form with respect to approvals, and directly over the lines for signatures, that "No employees may authorize assignment to themselves." This important requirement was also emphasized in Connecticut General internal memoranda and there is no doubt that Billet was aware of it. Four months later, after Botta discovered that Billet had signed his name to the form, he informed Billet that he had no authority to do so. Botta, however, did not terminate Billet at that time, although under Connecticut General rules the false signature was cause for termination. Instead on July 21, 1988, Billet received a misconduct probation memorandum from Botta, advising him that he had forged Botta's name on the form. There was testimony from Edward Parry, Vice President of Sales, that he interceded on Billet's behalf to prevent Billet's termination over this incident.
At a meeting during a sales training conference in Southbury, Connecticut, in June 1988 words were exchanged between Botta and Billet. Botta subsequently sent a memo to his supervisor, Parry, which described this interruption, explaining that Billet entered the meeting in an intoxicated condition carrying liquor, and acted in an insubordinate way by yelling at Botta and insulting him. Witnesses at the trial testified that there was a disruption at the meeting, though none verified that Billet was intoxicated or insubordinate. Billet testified that the incident occurred and that he interrupted Botta and the two had words, although he denied yelling or being intoxicated. Billet did, however, acknowledge having a decanter of wine but stated that he had not consumed more than two or three glasses of wine.
Botta did not seek to terminate Billet over this incident, although he had the approval of Connecticut General's human resources department to do so. Parry testified that both human resources and James Grigsby, the sales head, sought to terminate Billet over this incident, but that he interceded on Billet's behalf because a misconduct dismissal would have precluded Billet from receiving all benefits to which he would be entitled in a few months' time when he turned 55. In particular, Parry pointed out that if terminated for misconduct in 1988 Billet would have lost about $200,000 in severance pay, health benefits other than having his coverage converted to an individual policy, and vacation day pay. In addition, a misconduct termination would have resulted in Billet's pension being reduced from that ultimately awarded. Parry explained that because of the "very significant financial burden" which would have flowed from a misconduct discharge "in light of his extensive employment record with us [we did] not terminate him." Instead, Billet was placed on misconduct probation.
Billet's misconduct probation attributable to the automobile requisition and Southbury incidents was unrelated to, and independent of, the performance warning Billet was given pursuant to his July 1988 interim evaluation. The misconduct probation was to last "for the duration of [Billet's] employment with Connecticut General," and thus he was warned that if "either of these two situations or any misconduct situation occurs again, you will be terminated." Billet signed a statement that he understood the terms of the probation.
4. Complaints from Underwriting Department
Connecticut General asserted that Billet's department was having problems with the underwriting department which predated his 1988 evaluation. These problems were so serious that underwriting, in Parry's words, had threatened to "pull the plug" on the Philadelphia office and not write any more policies for it, an act which would clearly have had a devastating impact. In support of this claim, ...