Carilli v. Mutual of Omaha Insurance

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit

6-6-2003

Carilli v. Mutual Omaha Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3533

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 NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 02-3533

JAM ES J. CARILLI,
Appellant

v.

MUTUAL OF OMAHA INSURANCE COMPANY,
t/a MUTUAL OF OM AHA COM PANIES
_______________________________________

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 01-cv-00885)
District Judge: Honorable Gary L. Lancaster
_________________________________________

Submitted Under Third Circuit LAR 34.1(a)
May 14, 2003

Before: RENDELL, SMITH, and ALDISERT, Circuit Judges.

(Filed: June 6, 2003)
__________________________

OPINION OF THE COURT
__________________________

SMITH, Circuit Judge.

James Carilli is appealing the District Court’s grant of summary judgment to his

former employer, the Mutual of Omaha Insurance Company (“Mutual of Omaha”), on
Carilli’s claims pursuant to the Age Discrimination Act of 1967, Title VII of the Civil

Rights Act of 1964, and the Civil Rights Act of 1866. The District Court had jurisdiction

pursuant to 42 U.S.C. § 2000e, 29 U.S.C. § 621-634, and 28 U.S.C. § 1331. Jurisdiction

in this Court is proper pursuant to 28 U.S.C. § 1291. Because we write solely for the

benefit of the parties, we will dispense with a detailed account of the facts of the case and

limit our discussion to those facts and issues critical to this appeal.

Carilli alleges that Mutual of Omaha fired him because he “is of Italian National

Origin or ‘race’ and of the Roman Catholic religion,” and because of his age. Mutual of

Omaha’s purported non-discriminatory reason for firing Carilli is that Carilli posed a

violent threat to employees of the company. Evidence presented to the District Court

indicated that Mutual of Omaha’s Human Relations Department received letters and

telephone calls from employees, who at that time worked for Carilli, complaining about

his volatile conduct. As the General Manager of the Pittsburgh office of Mutual of

Omaha, Carilli had a well-documented history of abusing and intimidating employees,

belittling employees, and creating an atmosphere of hostility in his office.

Events came to a head when, in August of 1999, senior management visited the

Pittsburgh office to investigate the complaints circling about Carilli and his management

of that office. At the beginning of October, Human Resources in Omaha then received a

letter from a Mutual of Omaha employee and two non-employee agents in Pittsburgh.

They asserted that, after the investigation of Carilli in Pittsburgh by senior management,

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Carilli purportedly had held a threatening meeting with the three of them during which

Carilli made references to a gun he owned, played the theme from the motion picture

“The Godfather” in the background, and made allusions to some association with the

mafia. Referring to the firearm as “his equalizer,” Carilli purportedly asserted that “a gun

made all men equal.” Later that same month, Human Resources in Omaha received a

telephone call from one of Carilli’s Pittsburgh employees, who had purportedly overheard

Carilli exclaim, “[I]f they’re going to fire me, I’m going to take my gun and I’m taking a

few people out.”

Based on these reports, a committee stationed at headquarters in Omaha met,

including representatives from human resources, the employee assistance program,

security, employee relations, the legal department, and the employee’s direct manager.

Based on the record amassed by human resources, this so-called “Violence Committee”

unanimously decided that Carilli should be immediately terminated due to his threat of

violence against Mutual of Omaha’s headquarters. Days later, members of Mutual of

Omaha’s senior management flew to Pittsburgh and, with security present, terminated

Carilli.

In order “[t]o discredit the employer’s proffered reason [for termination], . . . the

plaintiff [alleging discrimination] cannot simply show that the employer’s decision was

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

motivated the employer, not whether the employer is wise, shrewd, prudent, or

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competent.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Furthermore, “stray

remarks by non-decision makers . . . are inadequate to support an inference of

discrimination by the employer.” Gomez v. Allegheny Health Services, Inc., 71 F.3d

1079, 1085 (3d Cir. 1995). Although Carilli presented evidence to the District Court

questioning the underlying truth of the allegations forming the basis for the Violence

Committee’s decision to terminate him, Carilli does not allege, let alone present evidence,

that the Violence Committee did not receive the reports of Carilli’s violent threats nor

credit and act in reliance thereupon. The most that the Violence Committee can be

criticized for is not permitting Carilli the chance to present evidence rebutting the

allegations against him. However, such a failure does not demonstrate that the basis of

the Committee’s action was discriminatory, nor does it support Carilli’s claim of pretext,

absent some evidence of discriminatory animus by that Committee. See Fuentes, 32 F.3d

at 765. While Carilli presents evidence of numerous “stray remarks by non-decision

makers” at Mutual of Omaha, which would indicate potential discriminatory animus by

those “non-decision makers,” the evidence Carilli presents fails to link those remarks to

the Violence Committee so as to reasonably support an inference of discriminatory intent

and pretextual termination by that body. See Gomez, 71 F.3d at 1085; Armbruster v.

Unisys Corp., 32 F.3d 768, 779 (3d Cir. 1994). The judgment of the District Court will

be affirmed.

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TO THE CLERK:

Please file the foregoing Opinion.

BY THE COURT:

/s/ D. Brooks Smith
Circuit Judge

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