Judson C. Brewer v. Quaker State Oil Refining Corporation Quaker State Corporation

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.1

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 331. 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 flows from the Supreme Court’s decision in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), which applies equally to McDonnell Douglas discrimination cases. See Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219 n. 3 (3d Cir.1988), cert. denied, 490 U.S. 1098, 109 S.Ct. 2449, 104 L.Ed.2d 1004 (1989). Under Celotex, the district court must evaluate the nonmovant plaintiffs 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 *336this type of evidentiary evaluation. Fuentes v. Perskie provides our most extensive treatment of the subject. 32 F.3d 759 (3d Cir.1994). “[T]o avoid summary judgment, the plaintiffs evidence ... must allow a factfin-der 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).” Id. at 764 (citations omitted) (first emphasis added); see Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.) (adopting implicitly the “reasonable inference” standard), cert. denied, — U.S. -, 115 S.Ct. 2611, 132 L.Ed.2d 854 (1995); accord Siegel v. Alpha Wire Corp., 894 F.2d 50, 53 (3d Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2588, 110 L.Ed.2d 269 (1990); Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988).

In Fuentes, we observed that “this standard places a difficult burden on the plaintiff.” 32 F.3d at 765. It requires the plaintiff to “present sufficient evidence to meaningfully throw into question, i.e., to cast substantial doubt upon, the ... proffered reasons[.]” Id. (emphasis added). Elsewhere, we have described the standard in similar terms. See Seman v. Coplay Cement Co., 26 F.3d 428, 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., 940 F.2d 812, 815 (3d Cir.1991))).

In the present case, Brewer did not cast doubt on Quaker State’s profferred 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 McDonnell 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 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, “[ajlso, 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 ... [tjhat 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 331. 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 sim*337ply, good salesmen get fired for non-sales related reasons. Quaker State proffered such reásons, 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., 901 F.2d 335, 343-44 (3d Cir.1990) (observing that close proximity between positive evaluations and terminations will not necessarily raise an inference of pretext); Healy, 860 F.2d at 1215 (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, 580 F.Supp. 1543, 1546 (W.D.Pa.), aff'd 749 F.2d 27 (3d Cir.1984) (“The absence of complaints about performance, the absence of earlier commands, and plaintiffs own opinion ... are all irrelevant in fight 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, 7 F.3d 324, 332 (3d Cir.1993) (affirming summary judgment where employee did not contest reason for dismissal); Turner, 901 F.2d at 344 (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. Bluemle, 571 F.Supp. 364, 369 (E.D.Pa.1983), aff'd, 735 F.2d 1349 (3d Cir.1984) (noting that employee explained deficiencies but did not contest them); see also Fowle v. C & C Cola, 868 F.2d 59 (3d Cir.1989) (affirming summary judgment where employee failed to rebut employer’s reason of lack of qualifications); Spangle v. Valley Forge Sewer Authority, 839 F.2d 171 (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 eases 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., 56 F.3d 491, 496 (3d Cir.1995) (rebutting poor performance charge and charge of economic necessity); Sempier, 45 F.3d at 730 (rebutting with performance evidence where non-performance was sole reason given); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1422 (3d Cir.) (in banc), cert. denied, 502 U.S. 941, 112 S.Ct. 379, 116 L.Ed.2d 330 (1991) (allowing employee to contest poor evaluation using testimony of co-workers); Siegel v. Alpha Wire, 894 F.2d at 51-52 (rebutting charge of poor performance and disloyalty); Sorba, 821 F.2d at 205 (rebutting charge of poor performance); Chipollini 814 F.2d at 900 (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 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 weak.” 32 F.3d at 765 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 *338good 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 Turner, 901 F.2d at 343 (refusing to find issue of fact from employee’s mixed reviews); Healy, 860 F.2d at 1215 (affirming grant of summary judgment despite generally positive and at worst mixed performance evaluations); see also Fowle, 868 F.2d at 67 (discounting positive performance evaluations). A company is not “foolish, imprudent, or incompetent” when it fires a salesman who 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, 32 F.3d at 765 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 332. This court has recognized that changes in circumstances can turn flaws that were previously overlooked into legitimate reasons for termination. See Healy, 860 F.2d at 1215, 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 Brewer, 874 F.Supp. at 686; cf. Waldron, 56 F.3d at 499 (relying on evidence of double standard to reverse summary judgment). Brewer expe-rieneed a change in circumstances after which his previous deficiencies were no longer accepted. There is no contradiction here.

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 331. 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 332. In addition, it finds in Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir.1992), cert. denied, — U.S. -, 114 S.Ct. 88, 126 L.Ed.2d 56 (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.2 These arguments dress the same contention in different 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.3 See *339Perry v. Prudential-Bache Sec., Inc., 738 F.Supp. 843 (D.N.J.1989), aff'd, 904 F.2d 696 (3d Cir.), cert denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (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 department” that it all too strenuously declines. Majority at 332. 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 Healy, 860 F.2d at 1215 (discounting performance based inferences where complaints were long-standing and the employee had been informed of their nature); Billet, 940 F.2d at 827 (same); cf. Colgan, 935 F.2d at 1422 (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.4 There was no evidence of corporate machinations or a plot to transfer Brewer and set him up for termination. Cf. Waldron, 56 F.3d at 496-97; Armbruster, 32 F.3d at 772-74. Brewer offered no statistical or testimonial evidence indicating that Quaker State had discriminated against similarly situated parties. Cf. Siegel v. Alpha Wire, 894 F.2d at 55.

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 incoherent)[.]” 32 F.3d at 765. 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.5

*340Having 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., 475 U.S. 574, 589, 106 S.Ct. 1348, 1357, 89 L.Ed.2d 538 (1986).

As to the Weaver memorandum, I have little to add to the analysis of the trial court. Brewer, 874 F.Supp. at 683-84. 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.6 The 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.” Id. at 684.

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 perfor-manee 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. Prudentia-Bache Sec., Inc., 738 F.Supp. 843, 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, 904 F.2d 696 (3d Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (1990). The district court correctly 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., 862 F.2d 56, 61 (3d Cir.1988) (considering similar comments); Perry v. Prudential-Bache Sec. Inc., 738 F.Supp. 843, 849 (D.N.J.1989) (same), aff'd 904 F.2d 696 (3d Cir.), cert. denied, 498 U.S. 958, 111 S.Ct. 386, 112 L.Ed.2d 397 (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 *341‘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, 571 F.Supp. 364, 371 (E.D.Pa.1983), aff'd, 735 F.2d 1349 (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.

. 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).

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

. A brief hypothetical reveals the difficulties with these ideas. An associate in a law firm excels at *339legal 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.

. 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 Waldron, 56 F.3d at 498; Sempier, 45 F.3d at 731; Fuentes 32 F.3d at 764; Siegel v. Alpha Wire, 894 F.2d at 55, it similarly undermines Brewer's claim.

. As we have so often observed, McDonnell Douglas cases are inherently fact-specific. Billet, 940 F.2d at 828 ("discrimination cases are inherently fact-bound”); Healy, 860 F.2d at 1215 ("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 Fuentes, 32 F.3d at 764 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.

. 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 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.