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Bruno v. W. B. Saunders Co.

argued: April 17, 1989.


Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 86-2282.

Seitz,*fn* Sloviter and Greenberg, Circuit Judges.

Author: Seitz


SEITZ, Circuit Judge.

The appeal in this Age Discrimination in Employment (ADEA) action, 29 U.S.C. § 621, et seq., follows a jury verdict against the defendants W. B. Saunders Company (Saunders) and CBS Educational and Professional Publishing (CEPP) in the amount of $850,000. After the verdict, the district court, which had jurisdiction under 28 U.S.C. § 1331, denied the defendants' motion for judgment n.o.v. or in the alternative for a new trial. This court has appellate jurisdiction under 28 U.S.C. § 1291.


In relating the background of this case, we rely on uncontradicted testimony, except where noted. Adeline Bruno, the plaintiff in this case, was employed by W. B. Saunders Company from 1974 until May 1986. Saunders is a publisher of medical textbooks and medical periodicals, or "clinics." During the entire time relevant to this case, W. B. Saunders was a wholly owned subsidiary of CEPP.

Prior to the events out of which this litigation arose, Bruno was Director of Saunders' Central Order Processing Department. This position was described in Saunders' internal nomenclature as a "level 9" position. As Director of Central Order Processing, Bruno earned $44,350 annually as of December 1984.

In early 1984, Saunders announced plans to eliminate the Central Order Processing Department. One consequence of this would ultimately be the elimination of Bruno's job. Bruno was at the time forty-six years old.

Later that year, while Bruno was still working in her Central Order Processing job, the Manager of the Clinics Fulfillment Department at Saunders was transferred, and his job became open. Anthony Degutis, then Director of Budgets and Planning at Saunders, was given responsibility for finding a replacement. Within the Saunders hierarchy, the title "Manager" was a step below that of "Director," the title then held by Bruno. The newly open position was classified by Saunders as a "level 8" position. Bruno applied for the job.

The Clinics Fulfillment Department processes ("fulfills") orders for Saunders' clinics. From 1977 until it was computerized in 1980, the Clinics Fulfillment Department had been under the direction of Bruno in her capacity as Director of Central Order Processing. Degutis testified that his original belief was that Bruno "would best fill this position." Indeed, Degutis was informed by two CEPP executives in New York to whom Bruno had indirectly reported, Richard Bates and William Wright, that Bruno was the obvious successor to the Clinics Fulfillment position.

At the interviews conducted by Degutis, Beverly Dietrich, one of the ten candidates for the position, was treated differently from the others. Dietrich, who was then 36, was taken out by Degutis for a ninety minute lunch at an upscale restaurant near Saunders' office in Philadelphia. None of the other candidates was taken to a restaurant. Bruno was interviewed for approximately twenty minutes in a vacant office in the Saunders building.

Degutis testified that Dietrich "was not at the time we started the interview process[,] in my mind[,] qualified" for the Clinics Fulfillment position. At the time of the interviews for the job of Manager of Clinics Fulfillment, Dietrich was a Supervisor of Systems Analysis in the Clinics Fulfillment Department. Within the Saunders hierarchy "Supervisors" are below "Managers." Dietrich's particular job was classified as a "level 3" position. Dietrich had been with Saunders three years, and had worked on the computerization of the Clinics Fulfillment Department. At the time of her interview, Dietrich was earning an annual salary of $19,773

Dietrich's previous work experience -- beginning several years before she began working at Saunders -- had been as Assistant Manager and then Manager of the Arena Stage, a theater in Washington D.C. In that position she was responsible for a staff of 15 to 20 people. She was paid on an hourly basis. Her more recent work experience prior to joining Saunders had been as a sales clerk at Bamberger's Department Store and as a front office manager at a grocery store.

Two months before formally filling the position Degutis made Dietrich temporary head of the Clinics Fulfillment Department. While Dietrich was at the time the senior of the three Supervisors in the Department Bruno testified that Degutis told her that Dietrich had been given this job because "I know how everybody felt about Beverly so I wanted to give her a chance to prove herself." Degutis testified that this interim appointment was not intended to be a testing period for Dietrich.

Ultimately, Degutis chose Dietrich to fill the post permanently. Although the job had been posted as a "level 8" position, it was given initially to Dietrich as a "level 7." Dietrich was raised from a level 3 to a level 8 in two steps primarily because Saunders management felt that her salary increase would otherwise have been too great for one person to receive at one time. Six months after her installment as Manager of Clinics Fulfillment, Dietrich's annual salary was $29,000. Following Dietrich's selection, Bruno filed an Equal Employment Opportunity Commission (EEOC) charge alleging discrimination on the basis of age.

Several months after she was passed over for the Clinics Fulfillment position, and while she was still working at Saunders, Bruno was offered a job as Manager of Inventory Planning and Control in the Bellmawr, New Jersey warehouse facility Saunders shared with other CEPP subsidiaries. Bruno first accepted the job, but changed her mind four weeks later, before the job commenced. Bruno testified that she was told by a CEPP executive that a condition of her employment in that position was that she not proceed with her age discrimination claim.

Bruno was laid off by Saunders in May 1986. After her termination, Bruno continued to receive pay for four months. Seven months after her severance pay ended, Bruno accepted a job at the Provident National Bank for an annual salary of $18,000 plus benefits.

Bruno brought this action in the district court under the ADEA.*fn1 After trial, the jury found the defendants liable for "willful" age discrimination in their failure to give Bruno the Manager of Clinics Fulfillment job, and awarded liquidated damages as provided for by the statute. See 29 U.S.C. § 626(b). The jury verdict in favor of Bruno included $150,000 denominated "lost wages and benefits" and $700,000 denominated "front pay." The parties agree that half of each of these amounts represents liquidated damages.

On appeal, the defendants present a litany of alleged errors.


The defendants' first challenge to the judgment in the district court is that the evidence was insufficient to support the verdict. To win on such a challenge, the defendants must show that the record "is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Simone v. Golden Nugget Hotel, 844 F.2d 1031, 1033 (3d Cir. 1988) (citation omitted).

Under the now familiar analytical framework that has been established for analyzing ADEA claims, the plaintiff first bears the burden of establishing a prima facie case. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). If the plaintiff meets this burden, it raises an inference of unlawful discrimination. The burden of production then shifts to the defendant, who can dispel the inference of discrimination by articulating a "legitimate, non-discriminatory reason" for its employment action. McDonnell-Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 255. If the defendant succeeds in this, the burden then returns to the plaintiff, who retains the ultimate burden of persuasion. Burdine, 450 U.S. at 256. To win his case, the plaintiff must "prove by a preponderance of the evidence that the proffered reasons were not the employer's true reasons." Sorba v. Pennsylvania Drilling Company, 821 F.2d 200, 202 (3d Cir. 1987), cert. denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988).

Saunders and CEPP argue that the evidence was insufficient to support the verdict because it was not adequate to raise an inference of age discrimination at the prima facie case stage. They also argue that the evidence is insufficient to support a jury finding that their articulated, non-discriminatory reason for the employment decision in this case is mere pretext.


The defendants first challenge the sufficiency of the evidence to raise an inference of age discrimination at the prima facie case stage. Of course, after a case has been tried to a jury on the merits, "it is unnecessary for the appellate court to decide whether a prima facie case had, in fact, been established." Blum v. Witco, 829 F.2d 367, 372 n. 2 (3d Cir. 1987). "Where the defendant has done everything that would be required of him if the plaintiff had made out a prima facie case, whether the plaintiff really did so is no longer relevant." United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478 (1983). Rather, the appellate court must consider the ultimate issue: whether the plaintiff proved by a preponderance of the evidence that age was a determinative factor in the employer's hiring decision. Blum, 829 F.2d at 372 n. 2. "The issue of whether plaintiff established a prima facie case is subsumed on appeal into whether the plaintiff has sustained his or her ultimate burden," Dreyer v. Arco Chem. Co., 801 F.2d 651, 654 (3d Cir. 1986), cert. denied, 480 U.S. 906, 107 S. Ct. 1348, 94 L. Ed. 2d 519 (1987).

We will therefore treat the defendants' first contention as an argument that the evidence is insufficient to support the verdict. The defendants' contention in essence is that the evidence of a ten-year difference in age between Bruno, who was 46 at the time she applied for the Clinics Fulfillment job, and Dietrich, who was then 36, is insufficient to support an inference of age discrimination essential to plaintiff's case. Put another way, the defendants argue that the evidence could not support an ultimate conclusion that their employment action was discriminatory because it is insufficient to allow any inference that Bruno's age was a determining factor.*fn2

We disagree. Congress has defined the protected class to include only those people between forty and seventy years of age. 29 U.S.C. § 631 (a). Where the plaintiff is a member of the protected class and the successful candidate is not, the precise difference in age between the plaintiff and the successful candidate is not decisive, at least in a case such as this where the difference is not so small as to make an inference of discrimination absurd.

Contrary to the defendants' suggestion this conclusion is not inconsistent with Maxfield v. Sinclair International, 766 F.2d 788 (3d Cir. 1985) cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986). In Maxfield we held that the difference in age between a 65-year old and a 42-year old was "sufficient" to make out one of the elements of a prima facie case necessary to raise an inference of age discrimination at that stage of the litigation. Maxfield, however, presented a situation where the plaintiff and the successful job applicant were both within the protected class. In that context we found it necessary to examine the magnitude of the age difference in order to determine whether it would support an inference of discrimination.

This case presents the more common type of discrimination case where the plaintiff is within the protected class and the person ultimately chosen for the job is not. In title VII cases of race or sex discrimination, from which our method of analyzing age discrimination claims has been transplanted, this would be enough to support an inference of discrimination. See, e.g., Jackson v. University of Pittsburgh, 826 F.2d 230, 233 (3d Cir. 1987), cert. denied, 484 U.S. 1020, 108 S. Ct. 732, 98 L. Ed. 2d 680 (1988) (title VII race discrimination case) (where plaintiff is within protected class, one element of prima facie case made out simply by showing that persons treated more favorably were not within the protected class). So it is in actions under the ADEA. Maxfield did not disturb the settled rule that more favorable treatment for those not within the protected class will support an inference of age discrimination. See, e.g., Massarsky v. General Motors, 706 F.2d 111, 118 (3d Cir.) cert. denied, 464 U.S. 937, 78 L. Ed. 2d 314, 104 S. Ct. 348 (1983) (to make out prima facie case, plaintiff "need only show that he is a member of the protected class and that he was laid off from a job for which he was qualified while others not in the protected class were treated more favorably"). We conclude therefore that the evidence here was sufficient to support an inference of age discrimination.


"[Once] the defendant has produced admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus . . . plaintiff's ultimate burden of persuasion includes the requirement to show that the defendant's proffered reason is a pretext for discrimination." Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.) (in banc), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). In their second, more narrow, challenge to the sufficiency of the evidence to support the verdict, the defendants argue that even if the evidence of the difference in age between Bruno and Dietrich was sufficient to support an inference of discrimination, there was insufficient evidence to support a conclusion that the defendants' proffered reason was a pretext.

The defendants here did articulate a legitimate, non-discriminatory motive for failing to hire Bruno for the Clinics Fulfillment job. The defendants state that Bruno was not selected because it was Degutis's perception that her interest in the job was half-hearted. They also contend that Dietrich was selected over Bruno based on her performance as acting head of the Clinics Fulfillment Department during the two months that preceded her actual hire to fill the Manager of Clinics Fulfillment position. Before the district court, Degutis testified additionally that among the reasons he selected Dietrich were her "enthusiasm" and the fact that she was the "most qualified" candidate. The defendants do not rely on these explanations in this appeal.

There is a variety of evidence that tends to rebut the defendants' articulated reasons for their employment action. As to Bruno's interest in the job, Bruno testified that she spoke to Degutis often about the job during the time between her interview and the time the position was ultimately filled, and that, indeed, at one point he said to her "Addie, quit pushing." Both Degutis himself and Richard Bates, then CEPP's Vice-President for Fulfillment Services, testified that, subsequent to Bruno's interview with Degutis, Bates told Degutis that Bruno wanted the job. Degutis also testified that Bruno mentioned the job to him -- albeit offhandedly -- more than once during the period when he was selecting among the candidates for the position.

As to Dietrich's performance during the interim period when she was acting head of Clinics Fulfillment, there was testimony in the district court by others employed by Saunders during that time -- the Director of Management Information Systems and the Manager of Computer Operations -- that Dietrich did not show ability, at least in some aspects of the job. The evidence in its totality meets the minimum threshold necessary to support a conclusion that the defendants' proffered reasons were a pretext.

The law is clear that a plaintiff can win an age discrimination action without direct evidence specifically relating to age by proving that the reason for the unfavorable treatment put forward by the employer is a pretext. Chipollini, 814 F.2d at 898. The message of Chipollini is not, however, that anyone who suffers an adverse employment decision can win a discrimination suit. The message is that Justice Rehnquist's words for the Supreme Court will be taken seriously: "when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's action, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration." Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978). This framework places a premium on truthfulness by the defendant. If a "legitimate, non-discriminatory" reason articulated by a defendant faced with a prima facie case of discrimination is not the true reason for a failure to hire, the court may infer that the actual reason was impermissible.


The defendants next argue that the district court erred in the admission of evidence and they ask for a new trial. In this Circuit, review of rulings on relevance is plenary. See Brobst v. Columbus Services, 824 F.2d 271, 274 (3d Cir. 1987), cert. denied, 484 U.S. 1043, 108 S. Ct. 777, 98 L. Ed. 2d ...

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