Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-14-1995

Brewer v. Quaker State Oil Rfng. Corop.
Precedential or Non-Precedential:

Docket 95-3101




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                             No. 95-3101


                        JUDSON C. BREWER,
                                        Appellant
                                v.

             QUAKER STATE OIL REFINING CORPORATION;
                    QUAKER STATE CORPORATION



         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                     (D.C. No. 93-cv-00072E)


                    Argued October 19, 1995
               BEFORE: SCIRICA, COWEN and ROTH,
                         Circuit Judges

                    (Filed December 14, 1995)

Samuel J. Cordes (argued)
Ogg, Jones, DeSimone & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

          COUNSEL FOR APPELLANT
          Judson C. Brewer

Peter D. Post (argued)
Robert B. Cottington
Reed, Smith, Shaw & McClay
435 Sixth Avenue
Pittsburgh, PA 15219-1886

          COUNSEL FOR APPELLEE
          Quaker State Oil Refining Corporation;
          Quaker State Corporation

Robert J. Gregory
Room 7032
Equal Employment Opportunity Commission
1801 L Street, N.W.


                                  1
Washington, D.C.   10507

          COUNSEL FOR AMICUS-APPELLANT
          Equal Employment Opportunity Commission



                             OPINION


COWEN, Circuit Judge.

          Plaintiff-appellant Judson C. Brewer appeals the

district court's grant of summary judgment in favor of his

employer, Quaker State Oil Refining Corporation and Quaker State

Corporation ("Quaker State"), on Brewer's Age Discrimination in

Employment Act ("ADEA") claim, 29 U.S.C. § 623 (1988), and the

dismissal of his pendent state-law claim brought under Michigan's

anti-discrimination statute, the Elliott-Larsen Civil Rights Act,

Mich. Comp. Laws § 37.2101-2804.       Because the record reflects a

genuine issue of material fact regarding whether Quaker State's

asserted nondiscriminatory reasons for discharging Brewer are

pretextual, we will reverse the district court's entry of summary

judgment in favor of Quaker State and remand the matter for

further proceedings.



                                  I.

          Brewer worked for Quaker State as a sales

representative from 1968 until the time of his discharge in March

1992, at the age of fifty-three.       He worked in the Pittsburgh

office until it closed in 1989.       During the course of his

employment in Pittsburgh, Brewer was supervised by two different

division managers, Bruce Drummond and Michael O'Donnell.         During


                                  2
their respective tenures, both Drummond and O'Donnell encountered

certain problems with Brewer's performance.    For example,

Drummond stated that Brewer's clients complained that they had

run out of oil or had not seen their sales representative in some

time.   In January 1989, O'Donnell placed Brewer on a ninety-day

probation for similar performance deficiencies, including

customer complaints about running out of oil, poor follow-up with

projects, inaccurate and incomplete paperwork, short work days,

and lack of organization.    Shortly after Brewer completed his

probationary period, he was transferred to the Detroit division.

           District Manager Paul Pfauser supervised Brewer in

Detroit.   In 1990 Pfauser gave Brewer acceptable performance

ratings, but criticized him for poor planning.    Pfauser advised

Brewer that he needed to work more closely with his client

accounts and set higher standards for himself.    At the end of

1990 Brewer received a sales bonus for exceeding the company's

sales quota for that year.

           In May 1991, shortly before his second annual review

under Pfauser's supervision, Pfauser notified Brewer that various

facets of his performance required improvement.    Pfauser

counseled Brewer to be more efficient, to follow-up with requests

both from his customers and from management, and to improve the

timeliness and completeness of his sales reports.    In his formal

evaluation in June 1991, Brewer received marginal or unacceptable

ratings in all categories.

           In August 1991, Brewer was placed on a ninety-day

probation for his performance deficiencies.    At that time,


                                 3
Pfauser criticized Brewer for performing poorly in the areas of

client communications and organization.    In December 1991, Brewer

again exceeded the company's sales quota and received another

bonus.    Brewer was the only salesperson in the Detroit region to

receive such a bonus for both 1990 and 1991.

            Brewer's personnel file for the years prior to 1990 was

lost.    However, it is not disputed that Brewer's mean performance

evaluation rating from 1987 through 1990 was "3" out of a

possible "5", which translates into "competent" by Quaker State's

performance standards.    Factoring in his evaluation for 1991,

Brewer's overall average for 1987 to 1991 was 2.9.

            At the end of the ninety-day probation, Pfauser

repeated his concerns that Brewer was spending too little time in

his territory and not adequately communicating with customers. At

this time Brewer's probationary period was extended for an

additional sixty days.    On February 18, 1992, Pfauser wrote a

memorandum to Brewer documenting performance problems, including

Brewer's misprocessing orders, and failure to advise his accounts

of credit problems.

            Brewer challenged Pfauser's appraisal, commenting that

his performance had improved.    Brewer also has claimed that

Pfauser was "nitpicking," and that the problems were the result

of petty misunderstandings, or were not really problems at all.

Nonetheless, in the days that followed the February 18, 1992

memorandum, Pfauser sought and obtained approval to terminate

Brewer's employment.    Brewer was discharged on March 9, 1992, and




                                 4
this lawsuit ensued.    The district court granted summary judgment

against Brewer.



                                II.

            We have jurisdiction pursuant to 28 U.S.C. § 1291 to

review the final order of the district court, which exercised

jurisdiction under 29 U.S.C. § 626(c)(1), 28 U.S.C. §§ 1331 and

1343(a)(4), and supplemental jurisdiction pursuant to 28 U.S.C.

§1367.

            On review of a district court's grant of summary

judgment, we apply the same test the district court should have

applied initially.   Sempier v. Johnson & Higgins, 

,

727 (3d Cir.), cert. denied, 

(1995).   Summary

judgment is appropriate only when the admissible evidence fails

to demonstrate a genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.   Fed. R. Civ.

P. 56(c).    When the nonmoving party bears the burden of

persuasion at trial, the moving party may meet its burden on

summary judgment by showing that the nonmoving party's evidence

is insufficient to carry its burden of persuasion at trial.

Celotex Corp. v. Catrett, 

, 322-23, 

,
2552-53 (1986).    Thereafter, the nonmoving party creates a

genuine issue of material fact if it provides sufficient evidence

to allow a reasonable jury to find for him at trial.    Anderson v.

Liberty Lobby Inc., 

, 248, 

, 2510

(1986).   In reviewing the record, the court must give the

nonmoving party the benefit of all reasonable inferences.


                                 5


; Colgan v. Fisher Scientific Co., 

, 1413 (3d Cir.), cert. denied, 

(1991).



                               III.

          The ADEA prohibits age discrimination in employment

against any person over age forty.    29 U.S.C. § 623(a)(1).

Because the prohibition against age discrimination contained in

the ADEA is similar in text, tone, and purpose to that contained

in Title VII, courts routinely look to law developed under Title

VII to guide an inquiry under ADEA.    See, e.g., Maxfield v.

Sinclair Int'l, 

, 791 (3d Cir. 1985), cert. denied,

(1986).   We follow the evidentiary framework first

set forth by the Supreme Court in McDonnell Douglas Corp. v.

Green, 

, 

(1973), subsequently refined

in Texas Department of Community Affairs v. Burdine, 

, 

(1981), and recently clarified in St. Mary's

Honor Center v. Hicks, __ U.S. __, 

(1993).

          In order to establish a prima facie case, Brewer must

show that he: (1) is over 40; (2) is qualified for the position

in question; (3) suffered an adverse employment decision; and (4)

was replaced by a sufficiently younger person to permit an

inference of age discrimination.     Sempier v. Johnson & Higgins,

, 727 (3d Cir.), cert. denied, 

(1995).

This showing creates a presumption of age discrimination that the

employer can rebut by stating a legitimate nondiscriminatory

reason for the adverse employment decision.     Hicks, __ U.S. at
__, 113 S. Ct. at 2747; 

.    The plaintiff


                                6
then has the opportunity to demonstrate that the employer's

stated reason was not its true reason, but merely a pretext for

discrimination.    Hicks, __ U.S. __, 113 S.Ct. at 2747; 

.



                                  A.

             The district court held that the disposition of this

case turned on the third stage of the McDonnell Douglas

analytical framework because Brewer had established a prima facie

case of age discrimination, and Quaker State had articulated non-

discriminatory reasons for Brewer's discharge.     Brewer v. Quaker

State Oil Ref. Corp., 

, 681-82 (W.D. Pa. 1995).

We agree with the district court's analysis up to this point.       It

is undisputed that Brewer is a member of a protected class, was

discharged by Quaker State, and was replaced by an individual not

within the protected class.    Moreover, Brewer was qualified for

the position of sales representative.    He worked as a Quaker

State sales representative for twenty-three years.     During his

last five years on the job, he received overall evaluations that

translated into "competent" by Quaker State's performance

standards.    Accordingly, Brewer has established a prima facie
case of age discrimination.

             Quaker State has also established legitimate, non-

discriminatory reasons for terminating Brewer's employment.

Pfauser documented continuous performance problems, including

poor follow-up on customer requests, poor communications with




                                  7
clients and with management, too little time spent in his

territory, and late and ambiguous sales reports.



                                B.

          We must next determine whether Brewer has met his

burden of demonstrating that a factfinder could find that the

allegedly legitimate reasons proffered for his discharge were

only a pretext for discrimination in order to survive Quaker

State's motion for summary judgment.   To defeat a summary

judgment motion based on a defendant's proffer of

nondiscriminatory reasons, a plaintiff who has made a prima facie

showing of discrimination need point to some evidence, direct or

circumstantial, from which a factfinder could reasonably either:

(1) disbelieve the employer's articulated legitimate reason; or

(2) believe that an invidious discriminatory reason was more

likely than not a motivating or determinative cause of the

employer's action.   Fuentes v. Perskie, 

, 763-64 (3d

Cir. 1994).   The factfinder may infer from the combination of the

plaintiff's prima facie case, as well as its own rejection of the

employer's proffered nondiscriminatory reason, that the employer

unlawfully discriminated against the plaintiff and was merely

trying to conceal its illegal act with the articulated reason.

See Hicks, __ U.S. at __, 113 S. Ct. at 2749.   Thus, if the

plaintiff has pointed to evidence sufficient to discredit the

defendant's proffered reason, to survive summary judgment the

plaintiff need not also come forward with additional evidence of




                                8
discrimination beyond his or her prima facie case.   

.

          To discredit the employer's proffered reason, the

plaintiff cannot simply show that the employer's decision was

wrong or mistaken, since the factual dispute at issue is whether

a discriminatory animus motivated the employer, not whether the

employer is "wise, shrewd, prudent, or competent."   

(citing Ezold v. Wolf, Block, Schorr & Solis-Cohen,

, 533 (3d Cir.), cert. denied, __ U.S. __, 

(1993)).    Rather, the nonmoving plaintiff must demonstrate

such "weaknesses, implausibilities, inconsistencies,

incoherences, or contradictions in the employer's proffered

legitimate reason for its action that a reasonable factfinder

could rationally find them unworthy of credence, and hence infer

that the employer did not act for [the asserted] non-

discriminatory reasons."   

(citations and

internal quotations omitted.). See 

("plaintiff has the burden of casting doubt on an employer's

articulated reasons for an employment decision")(quoting Billet
v. Cigna Corp., 

, 828 (3d Cir. 1991).

          Brewer has challenged Quaker State's asserted reasons

for his discharge.    First, Brewer's own testimony disputed the

significance of the problems raised by Pfauser.    While Brewer

challenged the extent and degree of his deficiencies rather than

their existence, Brewer testified to specific examples of

Pfauser's errant or misplaced criticisms.    Such evidence amounts

to more than his subjective opinion of his performance.    Second,


                                 9
Brewer provided evidence that he had succeeded in selling oil for

nearly twenty-five years in the employ of Quaker State, and for

the last five years, he was rated "fully acceptable" by Quaker

State in his evaluations.     Third, Brewer provided evidence that

he received a bonus for surpassing his sales quota in 1990 and

1991, and was the only salesperson in the Detroit region to

exceed his or her sales quota for those years.

             The district court discounted this evidence, reasoning

that Brewer cannot pick and choose which employment standard he

will meet.    The district court reasoned that "although

plaintiff's average numerical rating and sales bonus may be

somewhat contradictory with the fact of his termination, the

court does not believe that they give rise to such 'weaknesses,

implausibilities, inconsistencies, incoherences, or

contradictions' in Quaker State's explanation that a reasonable

factfinder could rationally find the explanation unworthy of

credence."    

.   We disagree that the

"somewhat contradictory" evidence does not demonstrate a triable

issue of fact.     On summary judgment, it is not the court's role

to weigh the disputed evidence and decide which is more

probative.    

.   The fact that Brewer

received a bonus three months before he was fired and was the

only sales representative in the Detroit region who received such

a bonus is contradictory to Quaker State's admission that the

most important standard of job performance is sales.

             Quaker State's Executive Vice President of Sales,

William Marshall, stated that sales volume is "extremely


                                  10
important in evaluating a salesperson," and represents "the best

simple measure" of a salesperson's performance.   App. at 200,

203.   Quaker State's counsel also acknowledged this fact at oral

argument before this court.    Indeed, the volume of sales may

always be the primary measure of a salesperson's performance. See

Kiliszewski v. Overnite Transp. Co., 

, 132 (W.D.

Pa. 1993) (evidence that a person performed well in the

traditional role of salesperson precluded summary judgment

despite employer's claim that the plaintiff suffered from

efficient time-management deficiencies).    To segregate job

performance into the neat categories of sales and organizational

skills defies the reality of the role of a salesperson in a

company.

           We recognized that an employer may have any reason or

no reason for discharging an employee so long as it is not a

discriminatory reason.
          [W]e do not sit as a super-personnel department that
          reexamines an entity's business decisions. No matter
          how medieval a firm's practices, no matter how high-
          handed its decisional process, no matter how mistaken
          the firm's managers, the ADEA does not interfere.
          Rather, our inquiry is limited to whether the employer
          gave an honest explanation of its behavior.


McCoy v. WGN Continental Broadcasting Co., 

, 373 (7th
Cir. 1992) (citations and internal quotations omitted).    An

employer may have a legitimate reason for firing an employee that

has nothing to do with that employee's performance of the core

functions of his or her job.    Nonetheless, our role is to

determine whether a factfinder could reasonably find that the



                                 11
employer's stated reason is unworthy of credence.     In this case,

Brewer's deficiencies pale beside his consistently good sales

performance, inexplicably unaccounted for in his supervisor's

negative evaluations.    A factfinder could find it implausible

that Quaker State would have fired Brewer for such deficiencies

when he was successful in the sole area identified by Quaker

State's own performance incentive program -- sales.

            In 

, we held that a district

court had erred in finding that the employer's explanation for

denying a promotion to the plaintiff was pretextual.     The

employer claimed that it had denied partnership to the plaintiff

because of her deficiencies in the area of legal analysis.       There

was no question that the plaintiff suffered from serious

shortfalls in that area, although she had demonstrated success in

other areas of the job.     It was also clear that the employer

considered legal analysis to be the critical category of

performance review.     The district court had questioned the wisdom

of the employer's partnership standards, and we held that "[i]t

was not for the district court to determine that Ezold's skills

in areas other than legal analysis made her sufficiently

qualified for admission to the partnership."    

     This

case is distinguishable on its facts.    In Ezold, the plaintiff

suffered deficiencies in the one area deemed critical by the

employer.   Here, in contrast, Brewer had some problems in a few

aspects of the job.     Yet, he performed well in the one area

deemed by Quaker State to merit a performance bonus.     This raises




                                  12
genuine issues about the credence of Quaker State's performance-

based explanation.

          It is also questionable why a company would fire the

only salesperson to receive consecutive annual bonuses in

response to the same organizational deficiencies that the

employer had tacitly accepted for over two decades.   During the

twenty-three years that Brewer worked for Quaker State, he

consistently sold a high volume of oil despite the repeated

criticisms of other aspects of his job performance.   It was not

until late in his career that Quaker State turned the criticisms

of Brewer's performance into the basis for adverse action.     A

reasonable factfinder could view Quaker State's belated reliance

on these criticisms as evidence that tends to show pretext.    See

Levin v. Analysis & Technology, Inc., 

, 317 (2d Cir.

1992) (employer's claim that plaintiff was terminated because of

his "poor attitude" did not provide a basis for summary judgment

where there was evidence that plaintiffs' "irascible nature had

for many years been accepted by his co-workers and superiors");

Giacoletto v. Amax Zinc Co., 

, 426-27 (7th Cir. 1992)

(evidence supported a finding of pretext despite employer's claim

that the plaintiff had "poor interpersonal skills as a manager"

where the plaintiff "had been kept on as a supervisor for 14

years despite his abrasive personality and because of his ability

to produce"); Blalock v. Metals Trades, Inc., 

, 709
(6th Cir. 1985) (fact that the employer had legitimate concerns

with the plaintiff's performance at the time of his discharge was

not determinative where that "same level of performance" had been


                               13
acceptable to the employer until its consideration of a protected

criterion).   Brewer's testimony disputing the significance of the

alleged problems, his twenty-three years of consistently good

sales performance and recent merit bonuses cast sufficient doubt

on Quaker State's contention that Brewer was discharged because

of poor job performance in areas which the company had long

overlooked or tolerated.0

          Brewer has also provided evidence that in August of

1991, Wanda Weaver, Quaker State's personnel manager, wrote a

memorandum to Pfauser summarizing Brewer's performance for the

last fifteen years.    In the memorandum Weaver noted that "Judd is

53 years old, which presents another problem."   App. at 24.   The

district court determined that this statement merely indicated

Weaver's awareness that, if terminated, Brewer may file an age

discrimination suit.   Although the jury may very well conclude

that this remark merely reflects an awareness of Quaker State's

legal obligations, the statement is also subject to competing

interpretations.   Another reasonable interpretation is that

Brewer's age was a "problem" for Quaker State.   On summary

0
The dissent states that Brewer has "done nothing to rebut"
Quaker State's proffered non-sales reasons for firing him.
Dissent Typescript at 5. The dissent has overlooked evidence of
Brewer's testimony in which he related specific examples of his
supervisor's errant or misplaced criticisms. Such evidence
amounts to more than his subjective opinion of his job
performance. Of course, unrefuted evidence was also presented
that Brewer's past performance for twenty years was identical to
that for which he was fired. It was not until late in his career
that the criticisms of Brewer's performance were turned into
reasons for his termination. This evidence goes directly to
discrediting Quaker State's non-sales related reasons for firing
Brewer.

                                 14
judgment, we must draw all reasonable inferences in favor of the

nonmoving party.   Drawing the inference in Brewer's favor,

Weaver's statement tends to show a discriminatory animus.     In

viewing the record as a whole, as we must, we conclude that the

statement is probative, and should be submitted for a jury's

consideration.

          Brewer next produced evidence that in March 1990, Jack

Corn, Chief Executive Officer of Quaker State, discussed two new

executives in the company newsletter.    He stated, "two of our

star young men in their mid-40s.     That age group is our future."

App. at 26-27.   Brewer asserts that this remark is circumstantial

evidence of Quaker State's preference for younger workers.      The

district court determined that Corn's statement was a "stray

remark, unconnected with and remote from the decision-making

process which resulted in Brewer's discharge."    Brewer, 874 F.

Supp. at 683.

          We have held that stray remarks by non-decisionmakers

or by decisionmakers unrelated to the decision process are rarely

given great weight, particularly if they were made temporally

remote from the date of the decision. 

.         We

agree with the district court that the Corn statement is a "stray

remark" made by a non-decisionmaker and temporally remote from

the decision to terminate Brewer.    The comment was made almost

two years before Brewer's March 1992 termination.    Brewer's

supervisor testified that he could not recall ever seeing or

hearing Corn's statement, and there is no evidence of a causal

link between Corn's statement and Brewer's termination.


                                15
           Though the Corn statement should not be given

significant or commanding weight, at trial, it may provide some

relevant evidence of discrimination.   We have held that a

supervisor's statement about the employer's employment practices

or managerial policy is relevant to show the corporate culture in

which a company makes its employment decision, and may be used to

build a circumstantial case of discrimination.   See Abrams v.

Lightolier, Inc., 

, 1214 (3d Cir. 1995)

(discriminatory statements by nondecisionmakers properly used to

build a circumstantial case of discrimination); Lockhart v.

Westinghouse Credit Corp., 

, 54 (3d Cir. 1989) (same);

see also Josey v. John R. Hollingsworth Corp., 

, 641

(3d Cir. 1993) (court may consider as circumstantial evidence the

atmosphere in which the company made its employment decisions).

           Corn's statement may be used as evidence of managerial

policy.   The remark was not an off-hand comment made by a low-

level supervisor.   Rather, the comment was made by the Chief

Executive Officer in a written newsletter.   "When a major company

executive speaks, 'everybody listens' in the corporate hierarchy,

and when the executive's comments prove to be disadvantageous to

a company's subsequent litigation posture, it cannot

compartmentalize this executive as if he had nothing more to do

with company policy than the janitor or watchman."    

.

           Quaker State claims that Corn's statement should not be

considered evidence at all because it is too innocuous.      The

statement that the mid-40's age group is the company's future may


                                16
indeed be considered a truism -- the future of any business lies

with its relatively young employees.    See, e.g., Smith v. Flax,

, 1066 (4th Cir. 1980) (statement that "future lay

in the employer's young Ph.D's" was a truism, and not evidence of

age discrimination.).   Quaker State further asserts that praising

the youth does not indicate bias against more mature workers.

See, e.g., Mesnick v. General Elec. Co., 

, 826 (1st

Cir. 1991). cert. denied, 

(1992).    While a

factfinder could find Corn's comment too abstract to evince age

discrimination, it may also be considered by the jury as evidence

of the corporate culture in which the employment decision to

discharge Brewer was made, and circumstantial evidence of age

discrimination.   We conclude that the Corn statement is relevant

evidence of age discrimination.



                                  IV.

          Brewer next argues that the district court erred in

refusing to draw an adverse inference from Quaker State's

inability to produce Brewer's pre-1990 personnel file.      The

general principles concerning the inferences to be drawn from the

loss or destruction of documents are well established.      When the

contents of a document are relevant to an issue in a case, the

trier of fact generally may receive the fact of the document's

nonproduction or destruction as evidence that the party that has

prevented production did so out of the well-founded fear that the

contents would harm him.   Gumbs v. International Harvester, Inc.,




                                  17


, 96 (3d Cir. 1983); United States v. Charkasky Meat

Co., 

(3d Cir. 1958).

             For the rule to apply, it is essential that the

evidence in question be within the party's control. 

.    Further, it must appear that there has been an

actual suppression or withholding of the evidence.     No

unfavorable inference arises when the circumstances indicate that

the document or article in question has been lost or accidentally

destroyed, or where the failure to produce it is otherwise

properly accounted for.     See generally 31A C.J.S. Evidence

§156(2); 29 Am. Jur. 2d Evidence § 177 ("Such a presumption or

inference arises, however, only when the spoilation or

destruction [of evidence] was intentional, and indicates fraud

and a desire to suppress the truth, and it does not arise where

the destruction was a matter of routine with no fraudulent

intent.").

            The district court found that the file was lost in

connection with the death of Quaker State's in-house attorney,

and was not destroyed intentionally.    Quaker State's in-house

attorney died of a terminal illness after he took possession of

the file.    Quaker State avers that it has continued to search for

the file, but to no avail.    We cannot say the district court

applied the incorrect legal standard, nor were its factual

findings clearly erroneous.    The destruction or failure to

produce the record could have been due to many reasons unrelated

to the lawsuit.    See, e.g., Rogers v. Exxon Research & Eng'g Co.,

, 843 (3d Cir. 1977) (refusing to draw an adverse


                                  18
inference where destruction of a diary could have been unrelated

to the lawsuit), cert. denied, 

(1978).     The

district court properly refused to draw an adverse inference.



                                 V.

           Brewer has also brought an age discrimination claim

under the Michigan Civil Rights Act, Mich. Comp. Laws § 37.2101-

2804.    The district court held that Brewer failed to establish a

prima facie case on his state law claim because he provided no

evidence that Pfauser, or any other decisionmaker at Quaker

State, was predisposed to discriminate against Brewer on the

basis of age.   

.

           The evidentiary burdens for proceeding on an age

discrimination claim under the Elliott-Larsen Civil Rights Act

are the same as those used in ADEA cases.      McDonald v. Union Camp

Corp., 

, 1159 (6th Cir. 1990).     However, in contrast

to federal law, under Michigan law a plaintiff may establish a

prima facie case by demonstrating that: (1) he is a member of the

affected class; (2) that some adverse employment action was taken

against him; (3) that the person responsible for this adverse

action was predisposed to discriminate against persons in the

affected class; and (4) that the person responsible actually

acted on this predisposition to plaintiff's detriment.     Pitts v.
Michael Miller Car Rental, 

, 1070 n.1 (6th Cir.

1991).

           A plaintiff may also establish a prima facie case under
Michigan law using the traditional federal law standard set forth


                                 19
in McDonnell 

, 93 S. Ct. at 1824.0      The

McDonnell Douglas standard has been adopted by the Michigan

Supreme Court.   McDonald v. Union Camp Corp., 

,

1159-60 (6th Cir. 1990); Matras v. Amoco Oil Co., 

,

590 (Mich. 1986).   Therefore, Michigan law provides that

establishing a prima facie case of age discrimination varies with

differing factual situations, and the standard that best fits the

factual allegations should be applied.   

; Lytle v. Malady, 

, 140 (Mich. Ct. App. 1995).

          The district court erred in applying only the prima

facie standard set forth in 

, and not the

McDonnell Douglas standard, which more closely fits the facts of

this case.    Accordingly, the district court's entry of summary

judgment on the state law claim will be reversed for the same

reasons that we will reverse the summary judgment entered on the

ADEA claim.




0
A prima facie case as applied in the age discrimination context
requires a showing that the plaintiff: (1) was a member of a
protected class; (2) was subjected to adverse employment action;
(3) was qualified for the position; and (4) was replaced by a
younger person.


                                20
                      BREWER v. QUAKER STATE

                              No. 95-3101




ROTH, Circuit Judge, Dissenting:       I respectfully dissent.    I

cannot agree that Brewer's evidence of his sales performance

rebuts Quaker State's litany of specific reasons for termination

sufficiently to raise a genuine issue of material fact.      I would

affirm the district court.0

          Unlike the majority, I believe that the district court

analyzed the case properly and reached a correct result.         In

particular, I disagree with the majority's rebuke that the

district court weighed disputed evidence.      See Majority at

[typescript at 10].   I conclude that the district court, in

granting summary judgment, properly focussed on Quaker State's

articulated reasons for termination and determined that these

reasons were an adequate, non-discriminatory basis for discharge

even when considered along with Brewer's acknowledged sales

record.

          Our summary judgment inquiry comes flows from the

Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S.




0
          I have little quarrel with Parts I, II, III.A, or IV of
the majority's opinion. I disagree with Part III.B, and I would
not reach Part V. Because I would affirm the district court's
grant of summary judgment for Quaker State on the federal claim,
I would remand the state claims to the district court to
determine whether jurisdiction should be retained pursuant to 28
U.S.C. § 1367(c)(3).


                                  21
317 (1986), which applies equally to McDonnell Douglas

discrimination cases.    See Healy v. New York Life Ins. Co., 

, 1219 n.3 (3d Cir. 1988), cert. denied, 

(1989).    Under Celotex, the district court must evaluate the

nonmovant plaintiff's evidentiary showing to determine whether

the showing raises a genuine issue of material fact.     This

court's past discussions of the degree of proof required to

survive summary judgment in McDonnell Douglas cases have

recognized the need for this type of evidentiary evaluation.

Fuentes v. Perskie provides our most extensive treatment of the

subject.    

(3d Cir. 1994).   "[T]o avoid summary

judgment, the plaintiff's evidence . . . must allow a factfinder

reasonably to infer that each of the employer's proffered

nondiscriminatory reasons was either a post hoc fabrication or

otherwise did not actually motivate the employment action (that

is, the proffered reason is a pretext)."    

(citations

omitted) (first emphasis added); see Sempier v. Johnson &

Higgins, 

, 728 (3d Cir.) (adopting implicitly the

"reasonable inference" standard), cert. denied, ___ U.S. ___, 

(1995); accord Siegel v. Alpha Wire Corp., 

, 53 (3d Cir.), cert. denied, 

(1990); Sorba v.

Pennsylvania Drilling Co., 

, 205 (3d Cir. 1987),

cert. denied, 

(1988).

           In Fuentes, we observed that "this standard places a

difficult burden on the 

.   It requires

the plaintiff to "present sufficient evidence to meaningfully
throw into question, i.e., to cast substantial doubt upon, the .


                                 22
. . proffered reasons[.]"    

  Elsewhere, we

have described the standard in similar terms.    See Seman v.

Coplay Cement Co., 

, 431 (3d Cir. 1994) ("our standard

requires consideration of whether or not there is substantial

evidence in the record to support an employee's contention that

'but for' his age he would not have been discharged" (citing

Billet v. CIGNA Corp., 

, 815 (3d Cir. 1991)).

             In the present case, Brewer did not cast doubt on

Quaker State's proferred reasons, i.e., he did not allege that

they were not true.     He contended instead that they were

inadequate for discharge because he was a good salesman.

             I cannot agree that Brewer's evidence meets the

McDonald Douglas summary judgment standard.    His general

performance evidence, considered in connection with Quaker

State's specific reasons for discharge, is insufficient to raise

a genuine issue of material fact; the inferences he draws from

his remaining evidence are unreasonable.

             The majority opinion provides a fair summation of the

facts of this case.    Brewer was fired following a series of

significant performance problems, such as letting his customers

run out of oil and failing to complete or even file his

paperwork.    To demonstrate that these reasons were pretextual and

that the real reason for his firing was age discrimination,

Brewer offered three principal pieces of evidence:     first,

general performance evidence such as positive comments on

personnel evaluations and a sales bonus for selling oil in the

two years prior to termination; second, a personnel memorandum


                                  3
written by Wanda Weaver, Quaker State's Manager of Employment and

Compensation, and sent to Pfauser, Brewer's supervisor at the

time, which summarized Brewer's personnel evaluations since 1975,

approved a "performance plan" that Pfauser had submitted, and

observed, "[a]lso, Judd is 53 years old, which presents another

problem"; and third, a comment by Jack Corn, then chief executive

officer of the company, in the company newspaper referring to two

of his new "seconds-in command" as "two of our star young men in

their mid-40s . . . [t]hat age group is our future . . .."

          For clarity, I will analyze each of Brewer's

evidentiary proffers independently.     Brewer's general evidence of

acceptable job performance forms the nub of the case.     The Weaver

memorandum and the Corn comment are far weaker and, I believe,

insufficient to stave off summary judgment absent Brewer's

evaluations and sales bonus.

          Quaker State alleges that it fired Brewer for a litany

of specific performance problems.      Brewer responds with generic

evidence of his generally successful performance as a salesman.

The majority believes that Brewer's showing reveals sufficient

"weaknesses, implausibilities, inconsistencies, incoherences, or

contradictions" in Quaker State's explanation to produce a

triable issue of fact.   Majority at        [typescript at 10].   I do

not agree.

          Brewer's general evidence of good performance is

insufficient to cast doubt on the specific and undisputed reasons

for termination articulated by Quaker State.      Put simply, good

salesmen get fired for non-sales related reasons.     Quaker State


                                4
proffered such reasons, and Brewer has done nothing to rebut

them.   Good performance alone will not raise an inference of

wrongful termination.   See Turner v. Schering-Plough Corp., 

, 343-44 (3d Cir. 1990) (observing that close proximity

between positive evaluations and terminations will not

necessarily raise an inference of pretext); 

(noting that awards, commendations, and promotions do not

suggest that countervailing weaknesses do not exist or would not

be important in future evaluations).   Brewer's failure to carry

out specific tasks is dispositive, regardless of his general

proficiency.   Pierce v. New Process Company, 

,

1546 (W.D. Pa.), aff'd 

(3d Cir. 1984) ("The absence

of complaints about performance, the absence of earlier commands,

and plaintiff's own opinion . . . are all irrelevant in light of

the direct order . . . which plaintiff undeniably failed to carry

out.").

           Because Brewer failed to offer evidence that addresses

Quaker State's reasons, summary judgment was properly granted.

See Geary v. Visitation of the Blessed Virgin Mary Parish School,

, 332 (3d Cir. 1993) (affirming summary judgment where

employee did not contest reason for dismissal); 

(affirming summary judgment where "[the employee] has

offered no evidence tending to show that serious and unattended

problems did not exist within his jurisdiction or that [the

employer's] other criticisms at the time of the . . . decision

were unjustified."); Keller v. Bleumle, 

, 369
(E.D. Pa. 1983), aff'd, 

(3d Cir. 1984) (noting that


                                5
employee explained deficiencies but did not contest them); see

also Fowle v. C & C Cola, 

(3d Cir. 1989) (affirming

summary judgment where employee failed to rebut employer's reason

of lack of qualifications); Spangle v. Valley Forge Sewer

Authority, 

(3d Cir. 1988) (affirming grant of

summary judgment where employee presented no evidence to show he

was qualified for the job).

          Brewer's position in this case differs from previous

cases where employees have used general performance evidence to

rebut a proffered reason for discharge.     Although we have

repeatedly recognized that employees can rely on evidence of good

performance to show pretext, in those cases the employers have

inevitably relied on poor performance as a reason for

termination.   See, e.g., Waldron v. SL Indus. Inc., 

,

496 (3d Cir. 1995) (rebutting poor performance charge and charge

of economic necessity); 

(rebutting with

performance evidence where non-performance was sole reason

given); Colgan v. Fisher Scientific Co., 

, 1422 (3d

Cir.) (in banc), cert. denied, 

(1991) (allowing

employee to contest poor evaluation using testimony of co-

workers); Siegel v. Alpha 

(rebutting
charge of poor performance and disloyalty); 

(rebutting charge of poor performance); 

(rebutting charge of poor performance based primarily on

credibility of employee).     Had Quaker State relied on poor sales

performance as its reason for discharge, I would confidently join

the majority in finding that reason rebutted and hence a


                                  6
reasonable inference of pretext.     That is not the case:   Quaker

State terminated Brewer because of specific failures and

omissions, not because of generally inadequate performance.

          Nevertheless, at some level of analysis, performance

evidence will always be relevant.     Even though Quaker State did

not rely on poor performance per se, we must still consider it.

As we explained in a footnote in Fuentes, "a decision foolish,

imprudent, or incompetent by comparison to the employer's usual

mode of operation can render it implausible, inconsistent, or

n.8.   Because firing an extremely

qualified and effective employee could be "foolish, imprudent, or

incompetent by comparison to the employer's usual mode of

operation," the court on summary judgment must inevitably

consider employee performance.

           Brewer's performance evidence comes to naught.     Under

our rule in Fuentes, unless the employer relies on poor

performance as an articulated justification, the evidence of good

performance must be sufficient to make the employer's decision

appear "foolish, imprudent, or incompetent."     Neither Brewer's

sales bonus nor his inconsistent, often mediocre, but

occasionally complementary evaluations meet this burden.      See

(refusing to find issue of fact from

employee's mixed reviews); 

(affirming

grant of summary judgment despite generally positive and at worst

mixed performance evaluations); see also 

(discounting positive performance evaluations).     A company is not

"foolish, imprudent, or incompetent" when it fires a salesman who


                                 7
lets his customers run out of oil, fails to spend sufficient time

in his territory, and consistently neglects his paperwork.

            Moreover, in firing Brewer, Quaker State did not

deviate from "the employer's usual mode of operation."    Fuentes,

n.8.    The majority suggests otherwise, claiming that

"[i]t is also questionable why a company would fire [a]

salesperson . . . in response to the same organizational

deficiencies that the employer had tacitly accepted for over two

decades."   Majority at     [typescript at 13].   This court has

recognized that changes in circumstances can turn flaws that were

previously overlooked into legitimate reasons for termination.

See 

, 1220 (discussing change in employee

environment).    It was undisputed that Brewer's problems came to a

head after his transfer to Detroit, where he encountered a

supervisor who was hard on everyone and a stickler for rules.

App. at 72a ("[Pfauser] is a cross the Ts and dot the Is type of

person to the point of being almost a fanatic about it. Corporate

policy was always first in line, . . . [a]nd it affected

everybody out there.") (deposition of Judd Brewer).

Contemporaneous with Brewer's termination, Brewer's supervisor

fired a thirty-two year old salesman for almost identical

deficiencies.    See 

; cf. 

(relying on evidence of double standard to reverse

summary judgment).    Brewer experienced a change in circumstances

after which his previous deficiencies were no longer accepted.

There is no contradiction here.




                                  8
            In an effort to create a contradiction, the majority

makes much of Brewer's sales bonuses combined with a Quaker State

executive's statement that sales volume is "extremely important

in evaluating a salesperson."   Majority at       [typescript at

11].   Unfortunately, the two propositions in the majority's

constructed contradiction pass in the night.      Proposition A, that

Brewer was fired despite good sales figures, simply does not

contradict Proposition B, that sales volume is "extremely

important in evaluating a salesperson."    Descriptives such as

"extremely important" and "best simple measure" show that sales

volume is one important factor to the company, indeed one very

important factor to the company, but they do not show that sales

volume is the only important factor to the company.     Absent this

final alternative, Brewer could have had more than acceptable

sales numbers and still be fired for cause without contradiction.

            The majority next suggests that "[t]o segregate job

performance into the neat categories of sales and organizational

skills defies the reality of the role of a salesperson in a

company."   Majority at     [typescript at 11].    In addition, it

finds in Ezold v. Wolf, Block, Schorr & Solis-Cohen, 

, 545 (3d Cir. 1992), cert. denied, ___ U.S. ___, 

(1993), the concept of a job's "critical area," implying that

a company which fires an employee despite acceptable performance

in that critical area automatically raises an inference of

pretext.0   These arguments dress the same contention in different

0
          I note in passing that to the extent Ezold stands for
the proposition that an employee who falls short in a critical


                                 9
clothes.     To paraphrase the argument, the majority claims that

selling is what salesmen do, so firing a salesman who sells is

inherently pretextual.

             I cannot agree.   The "reality of [a salesperson's]

role," and the "critical area" of a job are simply not helpful

concepts.0    See Perry v. Prudential-Bache Sec., Inc., 738 F.

Supp. 843 (D.N.J. 1989), aff'd, 

(3d Cir.), cert

denied, 

(1990) (affirming summary judgment for

employer despite showing that terminated employee excelled in

core skill of underwriting).     Both concepts attempt to establish

a general ideal of "performing the job" such that any contrary

reason given by the employer conflicts with that ideal.     In doing

so, the majority adopts the very posture of "super-personnel


area of performance can be terminated despite demonstrated
success in other job areas, it does not follow that an employee
cannot be terminated for failures in other job areas despite
success in a critical area.
0
          A brief hypothetical reveals the difficulties with
these ideas. An associate in a law firm excels at legal
research, the "critical area" of his job. Yet on several
occasions, this associate fails to send documents to an important
client. He also consistently neglects to record his billable
hours and maintain other mundane aspects of law office paperwork.
Although some partners accept these foibles, the associate
eventually encounters a more particular supervising attorney who
seeks and obtains his termination. Assuming that the associate's
subsequent suit for discriminatory discharge reached the pretext
stage, I have little doubt that this hypothetical associate could
not rebut the employer's specific reason for termination with
general evidence of good performance in the critical area of his
job. Nor could some elusive vision of the "reality of a lawyer's
role" aid him in linking inextricably his failings in
correspondence and paperwork to his more successful forays in the
firm library. Such evidence of good performance would not raise
an inference that the employer's reasons for termination were
pretextual. Indeed, such evidence would be entirely consistent
with the reasons given for termination.

                                   10
department" that it all too strenuously declines.    Majority at

[typescript at 11].    The majority defines the essence of a sales

position and evaluates Brewer's performance against that

standard.    I would save this court the task of redefining

Brewer's job description to include only those requirements that

he could meet.    We should instead look to whether his good sales

performance was inconsistent with his reasons for termination.       I

find no contradiction and no reasonable inference of pretext.

            It also bears noting that in firing Brewer, Quaker

State committed none of the questionable acts which we have cited

in the past as indicative of pretext.    Brewer's performance

problems were long-standing and well documented.    See 

(discounting performance based inferences where

complaints were long-standing and the employee had been informed

of their nature); 

(same); cf. 

(stressing that evaluations were a surprise and that

ratings became aberrationally low when employee refused to

retire).    He never contested these evaluations prior to

termination.0    There was no evidence of corporate machinations or

a plot to transfer Brewer and set him up for termination.     Cf.

; 

. Brewer

offered no statistical or testimonial evidence indicating that


0
          This fact makes Brewer's claim of pretext sound like a
post hoc explanation. Although the post hoc concept is typically
applied to the employer's reason for terminating the employee, it
is equally valid here. Just as post hoc timing indicates the
employer's reason is pretext, see 

;

; 

; Siegel v. Alpha

, it similarly undermines Brewer's claim.


                                  11
Quaker State had discriminated against similarly situated

parties.     Cf. Siegel v. Alpha 

.

             In my view, Brewer's performance evidence fails to

reach the quantum required by Fuentes.    He has not presented

"sufficient evidence to meaningfully throw into question, i.e.,

to cast substantial doubt upon, [the defendant's] proffered

reason . . . (e.g., by painting them as weak, implausible,

contradictory, or 

.   Indeed, he

has presented no evidence indicating that his employer did not

act for its asserted non-discriminatory reasons.     The record

shows Quaker State's reliance on his failure to meet work

requirements to be adequate, plausible, consistent, and

coherent.0

             Having addressed the sufficiency of Brewer's general

performance evidence, I now turn to the two other items that he

proffers, the Weaver memorandum and the Corn comment.      For both

items, the inference of discrimination that Brewer hopes to draw

is unreasonable "in light of competing inferences."       Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 

, 589 (1986).

0
          As we have so often observed, McDonnell Douglas cases
are inherently fact-specific. 

("discrimination cases are inherently fact-bound"); 

("each ADEA case must be judged on its own facts").
My rejection of Brewer's showing would not foreclose the success
of some future performance-based challenge to termination, either
where the employer relied on poor performance as one of its
justifications or where, as per Fuentes, the employee's
performance is sufficient to make the employer's decision appear
"foolish, imprudent, or incompetent." See 

n.7 (explaining that employee need only cast doubt on certain
employee reasons). Brewer's evidence, however, does not meet
this burden, and the grant of summary judgment was proper.


                                  12
           As to the Weaver memorandum, I have little to add to

the analysis of the trial court.     

.

Brewer greatly amplified the impact of Weaver's "[age] presents

another problem" statement by repeatedly quoting it out of

context.   When the letter is read as a whole, it becomes apparent

that an inference of age discrimination is not reasonable.0    The

0
          To properly evaluate the statement, it must be
understood as written. This extensive quotation places the
comment in context:

           The performance plan that you outlined . . .
           is excellent. It is important that you
           identify specific deficiencies [in Brewer's
           performance] and the results desired by
           management.

           At this point in time, I would recommend that
           you identify specific monthly dates when you
           two can get together and discuss results over
           the previous thirty (30) days. The results
           of those meetings should be summarized in
           letter format and Judd should sign the letter
           to acknowledge receipt. It is also important
           that we provide Judd with written notice of
           action that will be taken if the problems are
           not corrected. I suggest summarizing your
           meeting of August 19, acknowledge receipt by
           Judd, and close the letter by stating, "I
           must emphasize to you that your failure to
           permanently improve your work performance may
           lead to more severe discipline, up to and
           including discharge."

           Attached for your review is a brief summary
           of Judd's performance appraisals over the
           last 15 years. I am disappointed that action
           was not taken years ago to correct these
           problems. It is apparent from the
           performance appraisals that he has had
           ongoing performance problems throughout his
           employment history.

           I am obviously concerned that we have to take
           this type of action after 23 years of


                                13
district court drew the only reasonable conclusion:   "The

statement as to Brewer's age being a 'problem,' together with the

notations of his age and years of service, obviously indicate

Weaver's awareness that Brewer might file an age discrimination

lawsuit if terminated."   

           From the tone of the sentence and its placement in the

memorandum, it is clear that Brewer's age militates against his

firing.   The comment appears in a separate paragraph from the

discussion of Brewer's employment problems.   Moreover, in

Weaver's unrebutted deposition testimony, she stated that

standard procedures were followed in requiring documentation of

Brewer's performance while on probation and that she highlighted

Brewer's age to alert his supervisor to his protected status and

to ensure that age was not the reason for termination.     Id.; see

Perry v. Prudential-Bache Sec., Inc., 

, 849

(D.N.J. 1989) (holding that age data on various employment

records was used for computing employee's pension, not for the

purpose of discrimination), aff'd, 

(3d Cir.), cert.

denied, 

(1990).   The district court correctly


           employment. Also, Judd is 53 years old,
           which presents another problem. However,
           within the next ninety (90) days, it is
           extremely important for you to document as
           much as possible in the event his performance
           does not improve.

          Please forward each letter for our personnel
          file in Oil City. I will stay in touch with
          you to see what progress has been made . . ..
App. at 24.




                                14
concluded that nothing supported an inference of discrimination,

a conclusion that is all the more valid in light of Brewer's long

history of employment problems.

          As to the Corn comment, it expresses a truism that I

would deem to be a stray remark by a non-decisionmaker.    Even if

it were to be considered relevant, I do not believe that it would

create a material issue of fact sufficient to warrant a denial of

Quaker State's motion for summary judgment.   See White v.

Westinghouse Elec. Co., 

, 61 (3d Cir. 1988)

(considering similar comments); Perry v. Prudential-Bache Sec.

Inc., 

, 849 (D.N.J. 1989) (same), aff'd 

(3d Cir.), cert. denied, 

(1990).   I will not

dwell on it further.

          I conclude that, viewed as a whole, the record contains

nothing that casts meaningful doubt on Quaker State's proffered

reason for Brewer's discharge.    "While plaintiff is 'entitled to

every favorable inference,' he is not entitled to build a case on

'the gossamer threads of whimsy, speculation and conjecture.'"

Keller v. Bluemle, 

, 371 (E.D. Pa. 1983), aff'd,

(3d Cir. 1984).

          I do not believe that Brewer has made the showing

necessary to survive a motion for summary judgment.   Because I

would affirm the district court, I respectfully dissent.




                                  15