Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-20-2004
Wagner v. Berwick Ind
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3878
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"Wagner v. Berwick Ind" (2004). 2004 Decisions. Paper 58.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3878
LINDA WAGNER,
Appellant
v.
BERWICK INDUSTRIES
Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civil Action No. 01-cv-1908)
District Judge: Honorable James M. Munley
Submitted Under Third Circuit LAR 34.1(a)
November 12, 2004
Before: McKEE and CHERTOFF, Circuit Judges and
BUCKWALTER, Senior District Judge*
(Filed December 20, 2004)
OPINION
BUCKWALTER, Senior District Judge.
This is an appeal by Linda Wagner from the grant of summary judgment for
Defendant Berwick Industries LLC in a suit alleging age discrimination in violation of the
Age Discrimination in Employment Act, 29 U.S.C. § 621-34 (Count I) and the
Pennsylvania Human Relations Act, 43 P.S. § 951-63 (Count II) and retaliation in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Count III) and
the Pennsylvania Human Relations Act (Count IV).
Our review of the District Court’s grant of summary judgment is plenary.
Wagner contends that the District Court erred in finding (1) that she did not present
sufficient evidence to permit a fact finder to either disbelieve Berwick’s non-
discriminatory reason for her dismissal or believe that a discriminatory motive permeated
that decision; and (2) that the record did not establish a causal link between the
termination of her employment and any complaints she may have made regarding age
discrimination.
Before discussing the first assignment of error, we note that the record
clearly supports Berwick’s non-discriminatory reason for dismissal. As set forth in the
District Court’s opinion, Wagner had at least four warnings that her job performance was
not satisfactory. Actually, Wagner had more than four warnings, and was disciplined less
severely than required under defendant’s four-step disciplinary system up to the time of
her termination.
2
Wagner argues, however, that she presented sufficient evidence to permit a
fact finder to disbelieve defendant’s non-discriminatory reason or believe that a
discriminatory motive permeated the decision to terminate her.
To that end, she argues that (1) younger employees were neither disciplined
nor specifically scrutinized as she was; (2) she was the sole employee evaluated in 1999;
(3) she was singled out by defendant’s instructions to certain departments to watch for her
errors rather than scrutinize all employees; (4) she was disciplined more harshly than non-
protected workers; and (5) younger workers made fun of her and made references to her
being “so ancient.”
The record, as found by the District Court (and with which finding we
agree), does not support her contentions. Simply stated, plaintiff has failed to point to
evidence from which a fact finder could reasonably infer that she satisfied the criterion
identified by the employer or that the employer did not actually rely upon the stated
criterion. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3 rd Cir.
1998).
In this case, defendant evaluated plaintiff based upon her job performance.
Plaintiff does not dispute this. Instead, she argues that even though she admittedly did
not satisfy the job criterion the employer relied upon, she has nevertheless presented
sufficient evidence to permit a fact finder to disbelieve defendant’s non-discriminatory
reason or to believe a discriminatory motive permeated defendant’s decision.
3
For reasons substantially as set forth in the District Court’s opinion, we
disagree.
As to the second assignment of error, the District Court assumed that even
if Wagner engaged in protected activity, the record does not support the requisite causal
link. Even adopting that assumption, her retaliation charge faces other obstacles.
First, the retaliation count in Wagner’s complaint was brought under Title
VII and not the ADEA. The District Court properly dismissed this. For the first time in
this litigation, Wagner mentions in footnote 2, page 22 of her brief that “such clerical
error of listing Title VII instead of ADEA should not have eliminated Wagner’s claim for
retaliation since she specifically listed a claim for retaliation.”
As Berwick points out, and Wagner does not dispute in her reply brief, this
is the very first time this argument has been raised. “Arguments asserted for the first time
on appeal are deemed to be waived and consequently are not susceptible of review in this
Court absent exceptional circumstances (e.g., the public interest requires that the issues be
heard or manifest injustice would result from the failure to consider such issues).”
Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3 rd Cir. 2001). No such exceptional
circumstances exist.
Second, Wagner does not contest in any of her briefs before this court the
contention of Berwick that her retaliation charge under the PHRA was untimely filed
precluding her from seeking relief in this proceeding.
4
Finally, assuming that the PHRA retaliation charge was properly filed, as
the District Court noted (and we agree) there is no causal connection between the exercise
of protected activity and Wagner’s dismissal.
When Wagner met with Berwick’s president for a third time, it was after
her third written warning and while she was terminated about four months after that
meeting, there is no evidence that anything but her unsatisfactory performance led to her
dismissal.
The judgment of the District Court will be affirmed.
5