Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil No. 85-819.
Gibbons, Circuit Judge, Mansmann, Circuit Judge, Katz, District Judge*fn*
This appeal raises once again issues most recently addressed by us in Chipollini v. Spencer Gifts, 814 F.2d 893 (3d Cir. 1987), regarding the appropriateness of summary judgment for the defendant employer in employment discrimination cases where plaintiff has produced evidence to established a prima facie case pursuant to McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). We held in Chipollini that to defeat a summary judgment motion based only on an employer's proffered evidence of a non-discriminatory animus, an ADEA plaintiff's evidence need only permit a reasonable inference that the employers' proffered explanation for the discharge is unworthy of credence.
We find that the record before us contains "evidence of inconsistencies and implausibilities in the employer's proffered reasons for discharge (which) reasonably could support an inference that the employer did not act for (those) nondiscriminatory reasons." Id. at 900. Since the district court incorrectly required that the ADEA plaintiff's evidence establish a direct inference that the defendant discharged him because of his age, we will reverse the entry of summary judgment for the defendant employer.
After 27 years of employment as a driller with Pennsylvania Drilling Company, William Sorba was discharged at the age of 54. Sorba avers in his deposition that younger drillers were retained and that, after Sorba's termination, younger drillers were called back from layoff, rehired or promoted from helper to driller.
Sorba brought suit in district court alleging a violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (1932) (as amended) contending that his age was a factor in the employer's decision to discharge him. Pennsylvania Drilling answered that Sorba had been dismissed for unsatisfactory performance on his last three jobs between 1981 and April 18, 1983 the date of his discharge. After discovery, the employer moved for summary judgment and the district judge granted the motion. The court found that the employer had articulated valid non-discriminatory reasons for Sorba's discharge and that Sorba's factual allegations and evidentiary proffers did not present a triable issue of fact. Sorba appealed.
The district court order was entered on October 21, 1986. During the pendency of this appeal, we filed our opinion in Chipollini in which we explained that an ADEA plaintiff need not produce direct evidence of age discrimination in order to resist a motion for summary judgment based on the defendant employer's proffer of a non-discriminatory reason for the plaintiff's discharge. 814 F.2d at 894. Because this is a recurring area of confusion, we now reiterate much of what we said in Chipollini concerning the interrelationship of the shifting burden of production in discrimination cases with the burden of the employer as movant for summary judgment.
Under the ADEA, a plaintiff must prove that age was a determinative factor in the defendant employer's decision to dismiss the factor in the defendant employer's decision to dismiss the employee. See, e.g., Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 83 L. Ed. 2d 702, 105 S. Ct. 592 (1984). A plaintiff may, of course, prove his case by direct evidence. However, in the absence of direct evidence a plaintiff may establish a prima facie case indirectly by proving by a preponderance of the evidence that the employee (1) belongs to a protected class; (2) was qualified for the position; (3) was dismissed despite being qualified; and (4) ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination. See Maxfield v. Sinclair International, 766 F.2d 788, 793 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 106 S. Ct. 796, 88 L. Ed. 2d 773 (1986).
If the plaintiff succeeds in proving a prima facie case, the burden of production then shifts to the defendant to articulate some legitimate non-discriminatory reason for the discharge. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Should the defendant carry this burden, the plaintiff must prove by a preponderance of the evidence that the proffered reasons were not the employer's true reasons. Id.
In addition to establishing a prima facie case by indirect proof, an ADEA plaintiff can prevail by means of indirect proof that the employer's reasons are pretextual without presenting evidence specifically relating to age. Chipollini, 814 F.2d at 898. "When all legitimate reasons for rejecting an (employee) have been eliminated as possible reasons for the employer's actions, it is more likely than not that the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration ...