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Barber v. CSX Distribution Services

October 16, 1995

SIMON A. BARBER APPELLANT NO. 94-3604

v.

CSX DISTRIBUTION SERVICES, A UNIT OF CSX TRANSPORTATION, INC,; CSX TRANSPORTATION, INC. APPELLANTS



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 92-cv-01241)

Before: NYGAARD and McKEE, Circuit Judges and FULLAM, District Judge *fn*

McKEE, Circuit Judge.

Argued July 28, 1995

filed October 16, 1995)

OPINION OF THE COURT

Simon A. Barber appeals from the district court's entry of judgment in favor of his employer, CSX Transportation, Inc., following a jury verdict in favor of Barber. Barber sued under the Age Discrimination in Employment Act, 29 U.S.C. Section(s) 621 et seq. (1988) ("ADEA"), alleging discriminatory failure to promote and retaliation for his assertion of his discrimination claim. Although we agree that defendants *fn1 were entitled to judgment as a matter of law on Barber's retaliation claim, we hold that the district court improperly overturned the jury's finding that defendants' failure to promote Barber was in violation of the ADEA. Therefore, we will reverse in part and remand to the district court for proceedings consistent with this opinion.

I. BACKGROUND

Simon Barber has been employed by CSX Transportation or its predecessors for the last thirty-eight years. During his tenure with CSX, Barber has served in various capacities of increasing responsibility and has received numerous merit or performance salary increases and letters of commendation. In February of 1987, Barber took the position of Chief Clerk essentially serving as the office manager in defendants' Pittsburgh sales office. The position of Territorial Account Executive became available in that office in March of 1990, and was posted on the company wide computer system. The Territorial Account Executive was responsible for the design, marketing and sale of CSX services.

Eight applications were submitted for the Territorial Account Executive position. CSX's Human Resources Department screened the applications and determined that only four of the applicants met the minimum qualifications. Those four were:

(1) Scott Delasandro, age 37 -- one year of railroad experience and no sales experience.

(2) Kathy Ball, age 44 -- twenty years of railroad experience, fifteen of which were in accounting and five of which were in telemarketing.

(3) Andrew Kelly, age 53 -- thirty-four years of railroad experience including his position as Sales Representative in the Pittsburgh sales office at the time he applied for the Territorial Account Executive position.

(4) Plaintiff, Simon Barber, then age 52 -- thirty-four years of railroad experience, including fourteen years of railroad sales experience and seven years of customer service experience.

Robert Edmonds, Director of Sales in the Pittsburgh sales office, was Barber's supervisor at the time, and was responsible for selecting the Territorial Account Executive whom Edmonds would also supervise. Edmonds interviewed the two younger applicants, Scott Delasandro and Kathy Ball, both of whom worked in the Baltimore regional office. Although he did not interview Andrew Kelly, Edmonds informally discussed the position with Kelly after Kelly submitted his application. However, Kelly withdrew his application after learning the salary. Edmonds did not interview or discuss the position with Barber.

Even though Edmonds did not formally interview either Kelly or Barber, Edmonds filled out an "Interview Report Form" for both of those applicants as well as for the two applicants whom he did interview. That interview report, dated April 5, 1990, stated that Barber was "qualified but [did] not possess the credentials of Kathy Ball" who was selected. Interestingly, Kathy Ball's interview report was dated May 2, 1990, nearly a month after she was actually selected.

On May 23, 1990, Barber wrote a letter to defendants' Human Resources Department questioning Edmonds' decision to award the position to Ball whom Barber felt was less experienced and less qualified ...


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