                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2004

Wagner v. Berwick Ind
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3878




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"Wagner v. Berwick Ind" (2004). 2004 Decisions. Paper 58.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/58


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                                              NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                   NO. 03-3878


                LINDA WAGNER,
                   Appellant

                         v.

            BERWICK INDUSTRIES




    Appeal from the United States District Court
      for the Middle District of Pennsylvania
            (Civil Action No. 01-cv-1908)
    District Judge: Honorable James M. Munley


    Submitted Under Third Circuit LAR 34.1(a)
               November 12, 2004

Before: McKEE and CHERTOFF, Circuit Judges and
      BUCKWALTER, Senior District Judge*

             (Filed December 20, 2004)




                    OPINION
BUCKWALTER, Senior District Judge.

              This is an appeal by Linda Wagner from the grant of summary judgment for

Defendant Berwick Industries LLC in a suit alleging age discrimination in violation of the

Age Discrimination in Employment Act, 29 U.S.C. § 621-34 (Count I) and the

Pennsylvania Human Relations Act, 43 P.S. § 951-63 (Count II) and retaliation in

violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (Count III) and

the Pennsylvania Human Relations Act (Count IV).

              Our review of the District Court’s grant of summary judgment is plenary.

Wagner contends that the District Court erred in finding (1) that she did not present

sufficient evidence to permit a fact finder to either disbelieve Berwick’s non-

discriminatory reason for her dismissal or believe that a discriminatory motive permeated

that decision; and (2) that the record did not establish a causal link between the

termination of her employment and any complaints she may have made regarding age

discrimination.

              Before discussing the first assignment of error, we note that the record

clearly supports Berwick’s non-discriminatory reason for dismissal. As set forth in the

District Court’s opinion, Wagner had at least four warnings that her job performance was

not satisfactory. Actually, Wagner had more than four warnings, and was disciplined less

severely than required under defendant’s four-step disciplinary system up to the time of

her termination.



                                              2
              Wagner argues, however, that she presented sufficient evidence to permit a

fact finder to disbelieve defendant’s non-discriminatory reason or believe that a

discriminatory motive permeated the decision to terminate her.

              To that end, she argues that (1) younger employees were neither disciplined

nor specifically scrutinized as she was; (2) she was the sole employee evaluated in 1999;

(3) she was singled out by defendant’s instructions to certain departments to watch for her

errors rather than scrutinize all employees; (4) she was disciplined more harshly than non-

protected workers; and (5) younger workers made fun of her and made references to her

being “so ancient.”

              The record, as found by the District Court (and with which finding we

agree), does not support her contentions. Simply stated, plaintiff has failed to point to

evidence from which a fact finder could reasonably infer that she satisfied the criterion

identified by the employer or that the employer did not actually rely upon the stated

criterion. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3 rd Cir.

1998).

              In this case, defendant evaluated plaintiff based upon her job performance.

Plaintiff does not dispute this. Instead, she argues that even though she admittedly did

not satisfy the job criterion the employer relied upon, she has nevertheless presented

sufficient evidence to permit a fact finder to disbelieve defendant’s non-discriminatory

reason or to believe a discriminatory motive permeated defendant’s decision.



                                              3
               For reasons substantially as set forth in the District Court’s opinion, we

disagree.

               As to the second assignment of error, the District Court assumed that even

if Wagner engaged in protected activity, the record does not support the requisite causal

link. Even adopting that assumption, her retaliation charge faces other obstacles.

               First, the retaliation count in Wagner’s complaint was brought under Title

VII and not the ADEA. The District Court properly dismissed this. For the first time in

this litigation, Wagner mentions in footnote 2, page 22 of her brief that “such clerical

error of listing Title VII instead of ADEA should not have eliminated Wagner’s claim for

retaliation since she specifically listed a claim for retaliation.”

               As Berwick points out, and Wagner does not dispute in her reply brief, this

is the very first time this argument has been raised. “Arguments asserted for the first time

on appeal are deemed to be waived and consequently are not susceptible of review in this

Court absent exceptional circumstances (e.g., the public interest requires that the issues be

heard or manifest injustice would result from the failure to consider such issues).”

Brown v. Philip Morris, Inc., 250 F.3d 789, 799 (3 rd Cir. 2001). No such exceptional

circumstances exist.

               Second, Wagner does not contest in any of her briefs before this court the

contention of Berwick that her retaliation charge under the PHRA was untimely filed

precluding her from seeking relief in this proceeding.



                                                4
             Finally, assuming that the PHRA retaliation charge was properly filed, as

the District Court noted (and we agree) there is no causal connection between the exercise

of protected activity and Wagner’s dismissal.

             When Wagner met with Berwick’s president for a third time, it was after

her third written warning and while she was terminated about four months after that

meeting, there is no evidence that anything but her unsatisfactory performance led to her

dismissal.

             The judgment of the District Court will be affirmed.




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