the possibility of continuing their Conrail full benefit
employment for up to one year. They were given nearly two months
to consider applying for the VSP, and there is no evidence that
they were misled in any material way about its terms. For many
Conrail employees, this option, which was voluntary, was
preferable to a more uncertain future. The VSP was a benefit
offered to these plaintiffs, not an adverse employment action.
See Henn v. Nat'l Geographic Soc'y, 819 F.2d 824, 826-27 (7th
When some of those who accepted the VSP were later hired as
independent contractors, that, too, was a benefit to those
individuals. We cannot consider Conrail's decision to deny these
employees "full benefit" positions in a vacuum. In order to
assess their contention that they were subjected to adverse
employment actions, we must view "the record as a whole."
Connors, 160 F.3d at 974. The events during the months
immediately preceding that decision put Conrail's decision in
context. The company was in the process of accomplishing a
massive workforce reduction. The VSP materials clearly informed
plaintiffs they could not be "rehired." They accepted two years'
salary plus additional monies as severance benefits. Then, as
Conrail's Senior Vice President of Organizational Performance,
Frank Nichols, testified at his deposition, after employees were
terminated through the VSP and Voluntary Retirement Program,
Conrail determined it needed additional employees to help with
the transition to a leaner company. In making the transition, it
began to utilize, as independent contractors, some of those who
had accepted the VSP. Conrail intended that it would only need
their services for a "limited" period of time. After having
accepted termination of their employment and having received at
least two years' salary, the independent contractors continued to
have a steady stream of income. In short, plaintiffs were "not
fleeing from a stick, . . . [they were] reaching for a carrot."
Id. at 975.
Plaintiffs contend, however, that age discrimination exists
because Conrail hired younger individuals as "full benefit
employees" while rehiring plaintiffs without providing full
benefits. Plaintiffs must now come forth with facts that these
"full benefit employees" were similarly situated with them in
terms of employment categories and qualifications. See Simpson
v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d
Cir. 1998). However, plaintiffs have not done so. They have not
called to our attention any evidence of what positions these
younger employees assumed, relative to those assumed by the
independent contractors and leased employees.
Even if plaintiffs had established a prima facie case, they
would have to do more here in order to survive summary judgment.
Conrail has explained that it refused to hire plaintiffs as full
benefit employees because they had just been terminated through
the VSP. This is "a legitimate, nondiscriminatory reason" for its
decision. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108 (3d Cir. 1997) (en banc). Plaintiffs must now come forward
with evidence that the employer's explanation was not believable
or that age discrimination was more likely than not a motivating
cause for its decision to rehire them as independent contractors
or leased employees. See id. at 1113. Plaintiffs have not done
so. Therefore, as in Keller, summary judgment in favor of the
defendants is appropriate. The record clearly demonstrates that
Conrail considered these plaintiffs to be in a special category
not because of their age, but because they opted for the VSP.
Plaintiffs have not shown that anyone who participated in the VSP
was rehired into a "full benefit" position. Of the 88 employees
who returned to work as independent contractors or "leased"
employees after termination via the VSP, approximately fourteen
of them were under the age of 40, and thus outside
of the protected class.*fn27 In addition, plaintiffs' affidavits
are not helpful to their position. The affidavits relate only to
the alleged motive for offering the VSP, not Conrail's decision
about later rehiring VSP participants as independent contractors
or leased employees.
The Supreme Court has stated, "[T]here is no disparate
treatment under the ADEA when the factor motivating the employer
is some feature other than the employee's age." Hazen Paper Co.
v. Biggins, 507 U.S. 604, 609, 113 S.Ct. 1701, 123 L.Ed.2d 338
(1993). Merely because the VSP was open to employees with 15 or
more years of Conrail service does not raise a genuine issue of
material fact that the policy of not rehiring VSP participants
into full benefit positions was unlawfully age discriminatory.
"[A]ge and years of service are analytically distinct, [and] an
employer can take account of one while ignoring the other, and
thus it is incorrect to say that a decision based on years of
service is necessarily `age based.'" Id. at 611, 113 S.Ct.
1701. Here, plaintiffs essentially ask us to conclude that the
rehiring policy was age discriminatory because it discriminated
against those who had voluntarily accepted the VSP, that is those
who necessarily had fifteen or more years of service. This line
of reasoning is especially deficient since plaintiffs concede
that the implementation of the VSP did not constitute a
Plaintiffs also rely on statistical evidence as proof of
Conrail's discriminatory intent. An analysis conducted by one of
their experts compared the ages of employees Conrail hired in
"full benefit" positions after April 30, 1996 to those of the
plaintiffs. The analysis concludes that 82.6% of those hired into
"non-benefit positions" were over 40 years of age, that only
23.5% were under 40 years, and that the probability is extremely
low that this resulted from age-neutral decisions.
Even if what plaintiffs contend about their statistical
analysis is true, there is still no genuine issue of material
fact that defendants discriminated against plaintiffs on the
basis of age. The Supreme Court has explained that "statistics
can never in and of themselves prove the existence of a pattern
or practice of discrimination, or even establish a prima facie
case shifting to the employer the burden of rebutting the
inference raised by the figures." Int'l Bhd. of Teamsters v.
United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396
(1977). Moreover, the usefulness of statistical analyses "depends
on all of the surrounding facts and circumstances." Id. at 340,
97 S.Ct. 1843. In a disparate treatment case, the plaintiff must
prove that age "actually motivated the employer's decision."
Hazen Paper, 507 U.S. at 610, 113 S.Ct. 1701. The statistical
analysis at issue here did not take into account whether the
employees had or had not been terminated through the VSP. As a
result, it is fundamentally flawed and has no probative value in
determining Conrail's intent.
An alternative to making out an age discrimination claim under
the above burden-shifting framework is to produce direct evidence
of discrimination. See Connors, 160 F.3d at 976. Even in a
direct evidence case, however, plaintiffs must establish that
they were subjected to an adverse employment action. See
Connors, 160 F.3d at 976-77. As we have already discussed,
plaintiffs have not come forth with evidence of this element of
In any event, plaintiffs would still face a "high hurdle" in
making out a direct evidence case. Id. (citation omitted).
There must be evidence "that decisionmakers placed substantial
negative reliance on an illegitimate criterion in reaching their
Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989) (O'Connor, J., concurring); see also
Connors, 160 F.3d at 976. The facts must be "`so revealing of
discriminatory animus that it is not necessary to rely on any
presumption from the prima facie case to shift the burden of
production.'" Connors, 160 F.3d at 976 (quoting Armbruster v.
Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)). The affidavits
supplied by plaintiffs do not support a direct evidence case. Not
one says a word about discrimination with respect to the rehiring
of class members as independent contractors or leased employees.
Also, there is no evidence that the alleged remarks referred to
in the affidavits were made by the decisionmakers who made the
rehiring determinations or that they placed "substantial negative
reliance" on age. Price Waterhouse, 490 U.S. at 277, 109 S.Ct.
1775 (O'Connor, J., concurring); see also Connors, 160 F.3d at
976. Evidence of "stray remarks in the workplace" and remarks by
"nondecisionmakers" does not shift the burden of proof to
defendant. Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775
(O'Connor, J., concurring); see also Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 513-14 (3d Cir. 1997), cert. denied,
523 U.S. 1074, 118 S.Ct. 1516, 140 L.Ed.2d 669 (1998). Therefore, the
affidavits are not direct evidence of age discrimination.
Accordingly, plaintiffs have failed to prove that there is a
genuine issue of material fact that they were subjected to
unlawful age discrimination, and we will grant defendants' motion
for summary judgment on Count VII.
In conclusion, we will deny plaintiffs' motion for summary
judgment on Counts II and XIV. We will grant defendants' motions
for summary judgment on Counts I, II, III, IV, V, VI, VII, VIII,
IX, X, XI, XII, XIII, and XIV. We will deny defendants' motion
for additional discovery as moot.
AND NOW, this 23rd day of March, 1999, for the reasons set
forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the motion of plaintiffs for summary judgment on Counts II
and XIV of the amended complaint is DENIED;
(2) the motions of defendants for summary judgment on Counts I,
II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII, and XIV are
(3) the motion of defendants for additional discovery pursuant
to Rule 56(f) of the Federal Rules of Civil Procedure is DENIED
as moot; and
(4) judgment is entered in favor of defendants Consolidated
Rail Corporation, Consolidated Rail Corporation Matched Savings
Plan, Consolidated Rail Corporation Matched Savings Plan
Administrative Committee, Consolidated Rail Corporation
Supplemental Pension Plan, Consolidated Rail Corporation
Supplemental Pension Plan Administrative Committee,
Flexible/Medical/Dental Dependent Plan, Life Insurance,
Dismemberment and Long Term Disability and Retirees Life
Insurance Plan, Severance Plan, Deborah A. Melnyk, Richard J.
Davison, Peter F. Barr, Christian D. Hill, Gerhard A. Thelen,
Marianne S. Gregory, John A. McKelvey, Richard D. Huffman, Dale
A. Shaub, and the Fiduciaries and Administrators of the Foregoing
Plans and against plaintiffs John J. Bunnion, Jr., Anthony D.
Falcone, C. Dyana Reed, Frances E. Bronson, George Hall, Deborah
Daley, and John L. Raybuck on behalf of themselves and all
similarly situated persons on Counts I, II, III, IV, V, VI, VII,
VIII, IX, X, XI, XII, XIII, and XIV of the amended complaint.