NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-3821
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MICHAEL EMMETT,
Appellant
v.
KWIK LOK CORPORATION
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 11-cv-00528)
District Judge: Honorable Eduardo C. Robreno
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Submitted Under Third Circuit LAR 34.1(a)
June 13, 2013
Before: SCIRICA, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: June 14, 2013)
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
Michael Emmett appeals the District Court’s summary judgment on his age
discrimination and retaliation claims against his former employer, Kwik Lok Corporation.
For the reasons that follow, we will affirm.
I
Emmett was a regional sales manager for Kwik Lok, a manufacturer of plastic
closures, from May 1993 until September 2009, when he was terminated at the age of 53.
At all times relevant to this action, Emmett reported to Richard Zaremba, who was hired
as Kwik Lok’s Eastern Division Sales Manager in April 2008. Zaremba, in turn, reported
to Hal Miller, the Vice President of Sales.
When Zaremba first began working for Kwik Lok, Miller instructed him to ―put
some pressure‖ on several low-performing regional sales managers, including Emmett.
App. 273. Soon after, Zaremba summoned Emmett into his office and stated in the
course of that meeting: ―[A]t 52 years of age it’s—I wouldn’t want you to get bored in
your work. It’s hard to find a new job. There’s a lot of young guys looking for work.‖
App. 76.
Emmett viewed this comment as a threat and, in June 2008, he approached Kwik
Lok’s Human Resources Manager about the incident. Emmett then telephoned Miller and
reported the comment to him, as well. Miller asked Emmett ―[i]n a very angry and
harassing tone‖ what he was ―going to do about it.‖ App. 95. Miller told Emmett that he
―should be a man and handle it with Rich directly,‖ and accused Emmett of ―trying to
build a case.‖ Id.
Up until the phone conversation, Emmett had maintained a good relationship with
Miller and considered him to be a ―friendly coworker.‖ App. 95–96. Miller and Emmett
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would usually speak with each other at the company’s annual sales conference, and Miller
typically called Emmett at least once a year to check in with him. At the beginning of the
July 2008 conference, however, Emmett’s relationship with Miller began to sour, until
Miller and Emmett met later that week to discuss Emmett’s complaint. Emmett told
Miller: ―[A]s far as I’m concerned if nothing like this happens again the issue is settled.‖
App. 99. Miller said that he ―fe[lt] terrible about [the] whole thing‖ and ―accept[ed] the
responsibility for what has happened.‖ Id.
About a year later, Zaremba made another comment that Emmett interpreted as age
related. After a brief silence following a conversation about business, Zaremba asked
Emmett: ―[H]ow’s your health and is your mortgage paid.‖ App. 92. Emmett did not
mention the conversation to Miller or anyone else.
Emmett’s relationship with Miller once again appeared strained at the July 2009
sales conference, where Miller ―spoke to [Emmett] infrequently and only then with a rigid
and formal manner.‖ App. 300. Nor had Miller called Emmett to check in with him that
year.
Around that same time, one of Emmett’s customer accounts, Procacci Brothers,
began experiencing some problems with the service it received from Kwik Lok. In July
2009, Procacci Brothers’ representative, Rita Neczypor, called Emmett to complain about
technical difficulties with their new closure system, and about the fact that they had
received an inexact number of closure labels in a recent shipment. The catalogue stated
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that customers would receive 12,000 labels per carton. Instead, Procacci Brothers
received cartons containing 14,800 labels because they contained larger rolls, which
caused its equipment to jam.
Emmett spoke to Zaremba about the shipment problem, and Zaremba promised
Neczypor that Kwik Lok would resolve the issue. Emmett and Kwik Lok offer slightly
different accounts of what Zaremba told Neczypor that Kwik Lok would do in the future.
Pursuant to a longstanding Kwik Lok policy, customers placing an order with Kwik Lok
have two options: they can order a certain number of closures and the actual amount
delivered will be within a ten percent margin of that target amount, or, if they pay a ten
percent surcharge, they can receive an exact count of closures. According to Emmett,
Zaremba promised Neczypor that Procacci Brothers would receive exactly 12,000 labels
per carton in the future. Zaremba claims, in contrast, that he promised Neczypor that
future deliveries would contain the amount of labels promised in the catalogue—that is,
12,000 labels per carton, plus or minus ten percent, or exactly 12,000 labels if Procacci
Brothers opted to pay the ten percent surcharge. It is undisputed that Emmett never
discussed the surcharge policy with Neczypor—either before or after their July 2009
phone conversation—although he did supply her with a price sheet that included
information about the surcharge.
In August 2009, Kwik Lok shipped a carton to Procacci Brothers that did not
contain exactly 12,000 closures. When Emmett learned of the shipment, he called the
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Kwik Lok plant manager, Dale Crabill. According to Crabill, Emmett ―just came
unglued.‖ Supp. App. 52. He was speaking in a ―high voice‖ and ―he was just taking me
up one side, down the other and how you don’t know how to run the plant, I should get
somebody in there that knows how to run the plant. And just like that. And before I had
a word to say, after that, he hung up.‖ Supp. App. 52–53. Emmett claimed that he
―wasn’t out of control or yelling or anything like that,‖ but acknowledged that he was
―upset about it, and when I get upset you get a little bit elevated voice.‖ App. 115.
Crabill called Miller about the phone conversation and suggested that Emmett should be
fired immediately. Emmett then sent an email to Zaremba, Miller, and Crabill expressing
outrage over the Procacci account:
The customer requested a consistent per carton count and we agreed to it! We
need to adapt to service our customers needs and in this case the
aforementioned is what we needed to satisfy the account. It would be
impossible to explain to this customer, or most any others for that matter, that
they should expect their order quantities to be filled with in a +/- 10% accuracy
only. The +/- 10% quantity counts are not acceptable in todays marketplace. I
wouldnt live with it if I was buying someones products! The 10% upcharge
for accurate counts needs a serious review.
App. 193.
After receiving the email, Miller sent a letter to Emmett terminating his
employment. The letter referred to Emmett’s email, which it stated had been written ―in a
tone of disrespect‖ and showed a lack of knowledge about company policy. It also
commented on Emmett’s unwillingness to support company policy, the fact that Emmett
was ―constantly critical‖ of the company, and Emmett’s lack of enthusiasm for his job.
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App. 197–98.
Kwik Lok interviewed three candidates to replace Emmett. Ultimately, it
reconfigured the territories of the other three sales representatives in the Eastern Division
of the company instead of hiring a new employee. Those representatives were 37, 48, and
59 years old, respectively.
Emmett filed a complaint in the United States District Court for the Eastern
District of Pennsylvania, alleging that he had suffered discrimination and retaliation, in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,
and the Pennsylvania Human Relations Act (PHRA), 43 Pa. Cons. Stat. Ann. § 951 et seq.
The District Court granted summary judgment in favor of Kwik Lok on all counts.
Emmett filed this timely appeal.
II1
Emmett claims the District Court erred in granting summary judgment for Kwik
Lok on his discrimination and retaliation claims. We exercise plenary review over a
district court’s grant of summary judgment, applying the same standard that a district
court would apply. Burton v. Teleflex Inc., 707 F.3d 417, 424–25 (3d Cir. 2013). We will
affirm if the moving party has established that ―there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.‖ Fed. R. Civ. P.
1
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction under 28 U.S.C. § 1291.
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56(a).
A
Emmett’s age discrimination claims under the ADEA and the PHRA are governed
by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–04 (1973). See Fasold v. Justice, 409 F.3d 178, 183–84 (3d Cir. 2005).
Under this framework, the plaintiff bears the burden of making out a prima facie case of
discrimination. Id. at 184. Once the plaintiff has established a prima facie case, the
burden shifts to the defendant to identify legitimate justifications for the adverse
employment action. Id. The burden of production then returns to the plaintiff, who must
produce evidence showing that his employer’s proffered justifications are pretextual. Id.;
see also Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009). The District Court
did not err when it held that Emmett failed to produce evidence that Kwik Lok’s
proffered justifications were pretextual.2
Kwik Lok identified several legitimate reasons for Emmett’s termination,
including Emmett’s temper and his treatment of his coworkers following the Procacci
2
By addressing only the third McDonnell Douglas step, we do not imply that the
District Court erred in finding that Emmett had failed to make out a prima facie case of
discrimination. Indeed, we note that the evidence that Emmett did produce to show that
he was terminated because of his age—one age related comment made by a non-
decisionmaker, a second comment that does not clearly appear to be age related made by
the same employee, and a five-year difference between Emmett and the average age of
the three individuals who took over his job duties—is very thin. See Narin v. Lower
Merion Sch. Dist., 206 F.3d 323, 333 n.9 (3d Cir. 2000) (average age difference of five
years not enough to establish a prima facie case of age discrimination).
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Brothers incident, his failure to support company policy, and his consistently poor
performance. Thus, Emmett had to present evidence that would allow a factfinder to
reasonably conclude that the reasons offered by Kwik Lok were fabricated, or to
otherwise find that Miller had fired Emmett for discriminatory reasons. See Fuentes v.
Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
To cast doubt on a company’s proffered reasons for an adverse employment action,
it is not enough to show that the company’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 competent.‖ Id. at 765. Instead,
Emmett was required to demonstrate ―such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence,‖
Burton, 707 F.3d at 427 (quoting Fuentes, 32 F.3d at 765) (internal quotation marks
omitted), and could thus ―infer . . . that the employer engaged in the adverse employment
action for an invidious reason,‖ id. (citing Fuentes, 32 F.3d at 764).
Emmett identifies two factual disputes that, he claims, could cast doubt on Kwik
Lok’s proffered justifications. First, he admits that he raised his voice at Crabill, but
claims that he was not—as Crabill suggests—―out of control screaming and yelling.‖
App. 115. While Emmett may characterize his conversation with Crabill differently than
Crabill does, he offers no reason to doubt that Crabill was upset after the conversation or
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that Crabill reported the incident to Emmett’s supervisors. Indeed, Emmett acknowledges
that, after the incident, Zaremba asked him to call Crabill and ―kind of smooth things
over.‖ App. 116. Thus, Emmett provides no reason to doubt that, at the time Miller made
the decision to terminate his employment, Miller believed that Emmett had spoken to
Crabill in an unprofessional manner. See Fuentes, 32 F.3d at 766–67.
Second, Emmett claims that it is disputed whether Zaremba and Crabill were at
fault for the problems he had with the Procacci Brothers account. Emmett claims
Zaremba promised Neczypor that her company would receive an exact count of closures
in the future, and Zaremba claims he did not. Thus, although the origin of Emmett’s
problems with the Procacci Brothers account may be disputed, this disagreement is
irrelevant to the question of whether Emmett behaved properly after the problems with
the account arose. Emmett acknowledges that he never expressly told Neczypor about the
surcharge for an accurate count; he does not dispute that he criticized company policy;
and he admits that he raised his voice at his colleague following the incident. Even if
Emmett could show that Zaremba did promise an exact count of closures, and that Crabill
failed to deliver them, this would not cast doubt on Kwik Lok’s proffered justifications
for Emmett’s termination.
Emmett further argues that the jury could infer that he was fired for discriminatory
reasons from the fact that Kwik Lok did not follow the progressive discipline policy
suggested in its handbook. Emmett has not, however, produced evidence that this
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disciplinary policy was mandatory or rigorously followed, so little can be inferred from
the company’s decision not to adhere to the policy in this instance. See Morris v. City of
Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008) (non-mandatory nature of company’s
progressive discipline policy ―negate[s] its persuasiveness in showing pretext‖); Fane v.
Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir. 2007); see also Smith, 589 F.3d at 692
(noting that plaintiff failed to introduce evidence of a mandatory progressive discipline
policy).
The reasons given by Kwik Lok for Emmett’s termination—insubordination,
refusal to support company policy, and poor work performance—are consistent,
legitimate explanations for Kwik Lok’s decision. Emmett has not produced evidence that
would cast doubt on those reasons or that might otherwise show that Miller acted with
discriminatory intent. Although Emmett claims his direct supervisor, Zaremba, made a
reference to his age at a meeting conducted in the summer of 2008, it was Miller who
ultimately made the decision to terminate him, and ―[s]tray remarks by . . .
decisionmakers unrelated to the decision process are rarely given great weight,
particularly if they were made temporally remote from the date of decision.‖ See Fuentes,
32 F.3d at 767 (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545
(3d Cir. 1992)). Thus, the District Court did not err when it held that Emmett had failed
to produce evidence showing that the legitimate reasons given by Kwik Lok for his
termination were pretextual.
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B
Emmett’s retaliation claim under the ADEA and PHRA is likewise governed by
the McDonnell Douglas framework. See Fasold, 409 F.3d at 188. To establish a prima
facie case of retaliation under either statute, Emmett was required to show: ―(1) protected
employee activity; (2) adverse action by the employer either after or contemporaneous
with the employee’s protected activity; and (3) a causal connection between the
employee’s protected activity and the employer’s adverse action.‖ See Fogleman v.
Mercy Hosp., Inc., 283 F.3d 561, 567–68 (3d Cir. 2002) (quoting Krouse v. Am. Sterilizer
Co., 126 F.3d 494, 500 (3d Cir. 1997)). The District Court correctly held that Emmett
failed to produce evidence showing a causal connection between his age discrimination
complaint, made in the summer of 2008, and his termination, which did not occur until
fifteen months later.
A causal connection may be established by showing ―an unusually suggestive
temporal proximity‖ between the protected conduct and the adverse action or ―a pattern of
antagonism coupled with timing.‖ Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007). The fifteen-month gap between Emmett’s report and his
termination is not ―unusually suggestive,‖ and Emmett has not presented evidence
showing a pattern of antagonism. Although Emmett claims that Miller’s initial response
to his complaint was hostile, this conversation occurred more than a year before Emmett’s
termination, and Emmett has not identified evidence showing that this antagonism
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continued over the course of the next year. Emmett’s testimony and affidavit suggest
only that Miller was less friendly to him than normal at the beginning of the 2008 sales
conference, friendly at the end of the conference, and again cold toward him at the 2009
sales conference, and that Miller failed to check in with him by telephone that year.
Nor does other evidence of record give rise to an inference that Emmett was fired
in retaliation for his complaint. Emmett claims that after he reported Zaremba’s comment
to Human Resources, Miller instructed his staff to conduct an investigation into his sales
call volume. Miller testified during his deposition, however, that he frequently asked for
these kinds of reports on Emmett and other employees, and Emmett presented no
evidence to contradict this claim. Moreover, even if Kwik Lok chose to document
Emmett’s poor work performance because it was concerned that Emmett might bring a
lawsuit against the company in the future, its decision to protect itself does not show
retaliatory animus. Fuentes, 32 F.3d at 766 (explaining that documentation to protect
against a lawsuit can often ―only be described as displaying business acumen‖). The
District Court thus did not err in entering judgment against Emmett on his claims for
retaliation.
III
For the foregoing reasons, we will affirm.
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