                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-2-2007

Rabinowitz v. Amerigas
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4037




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-4037
                                    ____________

                             GLORIA V. RABINOWITZ,

                                                      Appellant,

                                          v.

                       AMERIGAS PARTNERS, L.P.,
              CAREY M. MONAGHAN, and EUGENE V.N. BISSELL,

                                                      Appellees.
                                    ____________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                           (D. C. Civil No. 05-cv-04278)
                     Magistrate Judge: Honorable Jacob P. Hart
                                   ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 25, 2007

         Before: SLOVITER, CHAGARES and HARDIMAN, Circuit Judges.

                               Filed: November 2, 2007
                                    ____________

                             OPINION OF THE COURT
                                  ____________

HARDIMAN, Circuit Judge.

      This employment discrimination case is an appeal from the District Court’s grant

of summary judgment in favor of AmeriGas Partners L.P. (AmeriGas) and two of its
executives, Carey M. Monaghan (Monaghan) and Eugene V.N. Bissell (Bissell). Plaintiff

Gloria V. Rabinowitz (Rabinowitz) brought claims of gender and age discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the

Pennsylvania Human Relations Act (PHRA), 43 Pa. Stat. Ann. §§ 951 et seq. after

AmeriGas terminated her position as Director of Strategic Analysis. Because we

conclude that Rabinowitz cannot show that AmeriGas’s asserted reasons for her

termination were a pretext for age or gender discrimination, we will affirm.

                                               I.

       “Our standard of review over the District Court’s grant of summary judgment is

plenary, and we apply the same standard that the District Court should have applied.” In

re Color Tile Inc., 475 F.3d 508, 512 (3d Cir. 2007). “Summary judgment is appropriate

when the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Andreoli v.

Gates, 482 F.3d 641, 647 (3d Cir. 2007) (quoting Fed. R. Civ. P. 56(c)) (internal

quotation marks omitted). Under Rule 56 of the Federal Rules of Civil Procedure, we

“must view the facts in the light most favorable to the nonmoving party and draw all

inferences in that party’s favor.” Id. (citation omitted).

                                              II.



                                               2
       Because we write for the parties, we repeat only the facts essential to our decision.

AmeriGas’s business involves the transportation, storage, and sale of propane to

commercial and residential users. Rabinowitz joined AmeriGas in the fall of 2001 as the

Director of Strategic Analysis. Bissell, the CEO of AmeriGas, hired Rabinowitz to

review and analyze trends and developments within the propane industry, and to provide

him with strategic advice on external issues. Rabinowitz was 56 years old at the time she

was hired.

       Shortly after she arrived at AmeriGas, Rabinowitz was appointed Project Manager

for the Sales Growth Project, a new initiative designed to develop a strategy for

AmeriGas to improve its slumping sales growth. For purposes of the Sales Growth

Project, Rabinowitz was to report to Monaghan, who at that time was Vice President of

Business Transformation and Marketing. Bissell emphasized to Rabinowitz that working

on the Sales Growth Project would give her an opportunity to “bond” with Monaghan,

and that a successful project might increase her chances of becoming Vice President of

Marketing, a position that did not yet exist but that Bissell considered part of his long-

term vision for the company.

       Rabinowitz did not “bond” with Monaghan while working on the Sales Growth

Project, however. Rather, Rabinowitz felt that Monaghan generally failed to provide

meaningful guidance or cooperation, embarrassed her by unfairly criticizing her in front

of colleagues and subordinates on at least one occasion, and ultimately took full credit for

the Sales Growth Project’s success without acknowledging her work or that of other

                                              3
members of the team. Rabinowitz complained to Bissell about Monaghan’s lack of

support and involvement, and Bissell noted it in Monaghan’s annual performance review.

       The Sales Growth Project concluded in the autumn of 2002. One of the

recommendations of the Sales Growth Project was the hiring of a Vice President of Sales,

and the company promptly began interviewing candidates for the position. Rabinowitz

admits that she was aware of the position and that the company was in the process of

interviewing candidates, but nevertheless failed to apply or otherwise express interest

herself. Rather, she claims that Bissell’s repeated assurances that she would have the

opportunity to apply for the Vice President of Marketing position deterred her from

applying for the new Vice President of Sales position. Bissell admits that he often

mentioned promotional opportunities to Rabinowitz, including his hope that the company

would ultimately have both a Vice President of Sales and Vice President of Marketing,

and that he told Rabinowitz that he would actively consider her for the Vice President of

Marketing position once it was created. The company hired Michael Vassalotti, a 37

year-old male, as Vice President of Sales in October 2002.

       Bissell issued Rabinowitz her first and only performance review in December

2002, giving her an overall rating of “met goal” and noting that she had exceeded

expectations with regard to her leadership of the Sales Growth Project. Bissell also

acknowledged that Rabinowitz had received limited support from Monaghan, but advised

Rabinowitz that she might improve by using the analysis she had been doing to contribute

to the strategic direction of the company.

                                             4
       The following spring, AmeriGas conducted a substantial company-wide

reorganization, although the creation of the Vice President of Marketing position that

Rabinowitz hoped and expected to fill never materialized. Instead, Monaghan’s title was

simply changed to Vice President of Sales and Marketing and his job duties expanded in

some respects. The reorganization also included a substantial reduction in force, and

Bissell instructed his senior managers to eliminate any positions that did not directly

contribute to AmeriGas’s core growth or earnings. Bissell evaluated his own direct

reports under this standard and concluded that Rabinowitz’s position “was something of a

luxury compared to some of the other core jobs” that were retained. Accordingly, Bissell

decided to eliminate Rabinowitz’s position as of June 3, 2003.

       Approximately a year after Rabinowitz’s termination, Vassalotti resigned his

position as Vice President of Sales, and AmeriGas replaced him with Greg Robey, a male

some ten years younger than Rabinowitz. AmeriGas made no attempt to contact

Rabinowitz regarding the opening.

                                            III.

       At the conclusion of discovery, AmeriGas, Monaghan, and Bissell moved for

summary judgment, arguing that Rabinowitz had failed to establish a prima facie case of

gender and age discrimination, and in any case could not establish that the company’s

asserted legitimate and nondiscriminatory reason for her termination was pretextual. The

District Court agreed that Rabinowitz had failed to adduce sufficient evidence to allow a



                                             5
reasonable jury to disbelieve AmeriGas’s stated reason for her termination, and granted

summary judgment on all claims.

       Disparate treatment claims brought under Title VII, the ADEA, and the PHRA are

all analyzed using the familiar three-step framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). At issue here is the third step of that burden-shifting

framework, in which the plaintiff bears the burden of demonstrating that the employer’s

asserted justification is simply a pretext designed to mask discrimination.

       To avoid summary judgment, the plaintiff’s burden on summary judgment is to

“point to some evidence, direct or circumstantial, from which a factfinder could

reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2)

believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d

Cir. 1994). The plaintiff must adduce evidence sufficient to “allow a factfinder

reasonably to infer that each of the employer’s proffered non-discriminatory reasons was

either a post hoc fabrication or otherwise did not actually motivate the employment

action.” Id. (internal citation omitted). To do so, the plaintiff must “demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reason for its action that a reasonable factfinder could

rationally find them unworthy of credence and hence infer that the employer did not act

for [the asserted] non-discriminatory reasons.” Id. at 765 (internal quotations and



                                             6
citations omitted). It is not sufficient to show that the employer’s decision was wrong,

mistaken, imprudent or incompetently made. Id.

       Rabinowitz claims that the District Court overlooked a number of facts which, if

properly considered together, cast substantial doubt upon the credibility of AmeriGas’s

asserted justification for her termination. She argues that AmeriGas offered little

explanation as to how Bissell determined that her position was not a “core” position, or

how individual employees subject to the reduction in force were evaluated. She questions

Bissell’s decision to give Monaghan the title of Vice President of Sales and Marketing

shortly before the reduction in force, despite what she viewed as Monaghan’s poor job

performance compared to her own. She claims that Bissell intentionally misled her into

not applying for the Vice President of Sales position by promising her that she would

have an opportunity to become Vice President of Marketing in the future. Rabinowitz

also complains that the company ultimately hired a much younger man, Vassalotti, as

Vice President of Sales, and then failed to inform her of Vassalotti’s resignation a year

later, choosing instead to replace him with yet another younger male. Finally, she notes

that there were no women on AmeriGas’s Board of Directors, and that her termination left

only one woman in AmeriGas’s senior management. All of this, Rabinowitz argues, is

sufficient to permit a reasonable juror to reject AmeriGas’s asserted justification for her

termination.

       We find that the District Court properly and thoroughly considered each of

Appellant’s arguments, and agree that she has failed to meet her burden under Fuentes.

                                              7
Even assuming arguendo that AmeriGas did not conclusively prove its asserted rationale

for Rabinowitz’s termination, that is not the employer’s burden. Id. at 763 (“The

employer need not prove that the tendered reason actually motivated its behavior, as

throughout this burden-shifting paradigm the ultimate burden of proving intentional

discrimination always rests with the plaintiff.” (emphasis in original)). Here, Rabinowitz

has produced almost nothing to suggest that it was irrational for Bissell to focus on

retaining “core” positions, or that the manner in which he implemented the reduction in

force was implausible or inconsistent.

       Instead, Rabinowitz relies largely upon her own personal evaluation of

Monaghan’s performance and qualifications to challenge Bissell’s decision to give

Monaghan the title of Vice President of Sales and Marketing several weeks before the

reduction in force. Rabinowitz believes the position should have been given to her in

light of what she perceives as Monaghan’s failure to turn propane sales around. Yet it is

well-settled that a plaintiff may not defeat summary judgment merely by questioning the

business judgment behind an employer’s decision, absent other evidence of impermissible

motives. See, e.g., Billet v. CIGNA Corp., 940 F.2d 812, 825-828 (3d Cir. 1991). This is

particularly true where, as here, the plaintiff’s evidence consists largely of subjective

assertions which are unsupported and even contradicted by the record. As the District

Court observed, Monaghan’s 2002 performance review indicated that he had exceeded his

goals in “growth and earnings.” Rabinowitz offers nothing, save her own general

assertions, to suggest that Monaghan was “solely” or “directly” responsible for the

                                              8
company’s failure to improve sales. Nor does she offer anything to suggest that Bissell

was motivated by improper motives in deciding to name Monaghan the new Vice

President of Marketing and Sales.

       Rabinowitz’s remaining arguments are similarly unavailing. Even if her “bait and

switch” theory regarding the Vice President of Sales position were sufficient to establish

pretext as a matter of law, she has fallen well short of providing a factual basis for such a

finding. It is undisputed that Bissell never promised Rabinowitz that a Vice President of

Sales position would be created, or guaranteed her that she would fill the position. Nor is

there any evidence that Bissell shared his hope to create such a position simply to deter

her from applying to become Vice President of Sales. AmeriGas’s failure to contact

Rabinowitz regarding the position following Vassalotti’s resignation, approximately a

year after she left the company, does little to bolster her theory. As the District Court

observed, non-union employers are under no legal obligation to seek out former

employees when a vacancy occurs. This is particularly true where the former employee

never applied for the position in the first place. Finally, we agree with the District Court

that the absence of women on AmeriGas’s Board of Directors or in senior management –

absent additional evidence such as the selection criteria and decisionmakers for the Board

of Directors or the applicant pool for senior management positions – is not sufficient to

establish pretext in this case.

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment in favor of Defendants.

                                              9
