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


10-6-2004

McGivern v. Meadowink Farms Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2165




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                                                      NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                          No. 03-2165




                    THOMAS MCGIVERN,

                                          Appellant

                                 v.

                 MEADOWINK FARMS, INC.
                        t/d/b/a
                MEADOWINK GOLF COURSE




         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                  (D.C. Civil No. 00-cv-01349)
            District Judge: Hon. William L. Standish


           Submitted Under Third Circuit LAR 34.1(a)
                       October 4, 2004

  Before: SLOVITER, BECKER and STAPLETON, Circuit Judges

                    (Filed: October 6, 2004)


                  OPINION OF THE COURT
SLOVITER, Circuit Judge.

       Appellant Thomas McGivern, a former employee of Appellee Meadowink Farms,

Inc. (“Meadowink”), appeals from the judgment entered by the District Court following a

bench trial in favor of Meadowink on McGivern’s claims under the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania Human

Relations Act, 43 Pa. Cons. Stat. § 951 et seq.1

                                             I.

       McGivern was hired by Meadowink, which operates a public golf course in

Murrysville, Pennsylvania, in M ay 1991 as a grounds-crew worker for the upcoming golf

season. Meadowink’s decision to hire McGivern was based, at least in part, on the fact

that McGivern possesses carpentry and general “handyman” skills. In August 1992,

McGivern sought, and received, an increase in his hourly wage to $9.00. He justified this

raise because of his work on several projects that had required him to use his carpentry

skills and many of his own tools. Thereafter, McGivern worked on several projects that

utilized his handyman skills, saving Meadowink the cost of outsourcing those projects.

       The District Court found that by fall 1992 McGivern was one of only two grounds-

crew members who were classified by Meadowink as “full-time seasonal employees.” As

such, McGivern worked a longer season than the other grounds-crew members, and was

eligible for certain benefits, such as participation in M eadowink’s profit-sharing plan. In

   1
       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367; this court
has jurisdiction over the lower court’s final order pursuant to 28 U.S.C. § 1291.

                                             2
contrast, Meadowink’s other grounds-crew members were classified as “part-time

seasonal employees,” who worked a shorter season and were not eligible for the benefits

enjoyed by the full-time seasonal employees.

       In February 1995, Meadowink hired Joyce Ann Miller as Operations M anager. In

an effort to increase Meadowink’s profitability, Miller reviewed the hourly wages of

Meadowink’s employees, including McGivern’s then hourly wage of $10.00. She

concluded that it was more efficient from a business standpoint for Meadowink to hire

outside contractors to perform special projects and that grounds-crew members should

concentrate on their principal assignment – maintenance and upkeep of the golf course –

and should not be used on special projects. As a result, and with the concurrence of the

other managers at Meadowink, McGivern’s position was eliminated and he was not

rehired for the 1997 golf season.

       When McGivern was informed that he was not being rehired because his position

as a full-time seasonal employee was being eliminated and that Meadowink could no

longer afford to pay him an hourly wage of $10.00, he became agitated and offered to

work for Meadowink for a reduced hourly wage of $9.00. Miller responded by stating,

“Try around $4.00 an hour,” a statement the District Court found facetious and not an

offer of continued employment.

       At the time of Meadowink’s decision not to rehire McGivern, he was fifty-eight

years old. In 1996, McGivern’s final year of employment with Meadowink, Meadowink



                                            3
employed thirty individuals who were over forty years old and therefore under the

protection of the ADEA. 29 U.S.C. § 631(a). Of these thirty, seventeen were older than

McGivern; three of these seventeen were members of McGivern’s grounds crew.

       Following the decision not to rehire McGivern, Meadowink hired four new

employees as grounds-crew workers, none of whom was older than forty; two of these

workers were under twenty years of age. The District Court found that these employees

were classified as part-time seasonal workers and that Meadowink did not hire a full-time

seasonal worker after its decision not to rehire McGivern. Thus, the District Court

concluded, as a matter of fact, that Meadowink did not replace McGivern.

       As a result of this determination, the District Court found that McGivern had failed

to establish a prima facie case of discrimination. Alternatively, the District Court,

assuming arguendo that McGivern had established a prima facie case of age

discrimination, concluded that McGivern had offered insufficient evidence to meet his

burden of showing that Meadowink’s articulated legitimate, nondiscriminatory reason for

its decision not to rehire McGivern for the 1997 golf season was pretextual.

       Although the District Court found that Meadowink’s decision to not rehire

McGivern was largely driven by budgetary concerns, it also found that the decision was

further influenced by two additional factors. First, the District Court noted that McGivern

had suffered several work-place injuries and had also negligently injured a coworker –

occurrences that led some at Meadowink to view McGivern as a safety risk. Moreover,



                                              4
the District Court found that McGivern, on one occasion, had been involved in a

confrontation with his supervisor. Although the District Court concluded that neither of

these factors, either alone or in combination, would have resulted in a decision not to

rehire McGivern, these factors did play some role in the decision. In sum, the District

Court found, as a matter of fact, that Meadowink’s decision not to rehire McGivern was

totally unrelated to McGivern’s age.

       The District Court entered judgment in favor of Meadowink. McGivern filed a

timely appeal.

                                              II.

       Following a bench trial, this court has plenary review of a district court’s choice

and interpretation of legal standards, as well as the district court’s application of those

standards to the facts of the case. We review the district court’s findings of fact for clear

error. Beta Spawn, Inc. v. Fee Transp. Servs., 250 F.3d 218, 223 (3d Cir. 2001); see also

Fed. R. Civ. P. 52(a).

       McGivern acknowledges that the District Court properly selected, interpreted, and

applied the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973). See generally Fakete v. Aetna, Inc., 308 F.3d 335, 338 n.3 (3d Cir. 2002)

(“[T]he McDonnell Douglas framework applies in ADEA cases.”). 2 Instead, McGivern

   2
       On appeal, neither party addresses specifically McGivern’s claim under the
Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. At least in the
context of this action, however, that statute is more-or-less coextensive with the ADEA
and, therefore, we need not address it separately. See Simpson v. Kay Jewelers, Div. of

                                               5
challenges the District Court’s factual finding respecting the nature of his employment

and the District Court’s attendant factual finding that M eadowink did not replace him

with nonmembers of his protected class after his termination.

       To prevail on an ADEA claim, a plaintiff must show that his age “‘actually

motivated’” and “‘had a determinative influence on’” the employer’s decision to fire or

not hire him. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000)

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). An ADEA plaintiff can

meet this burden (1) by presenting direct evidence of discrimination, see Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), or (2) by presenting indirect evidence of

discrimination that satisfies the familiar three-step framework of McDonnell Douglas.

See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101 (3d Cir. 1997) (en banc). In this

case, McGivern’s case proceeded under the McDonnell Douglas framework, which

requires a plaintiff to first establish a prima facie case of discrimination, after which the

burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for

its decision. If the employer articulates such a reason, the inference of discrimination

raised by the prima facie showing falls away and the plaintiff must prove by a

preponderance of the evidence that the employer’s proffered reason was actually a pretext

for discrimination. Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir.

2003) (per curiam).



Sterling, Inc., 142 F.3d 639, 644 (3d Cir. 1998).

                                               6
       It is not disputed here that McGivern satisfied the first three elements of the prima

facie case under McDonnell Douglas, i.e., he was within the protected class; he was

qualified for the position at issue; and he was fired or not rehired despite his qualification

for the job. The parties disagree, however, on whether Meadowink replaced McGivern

with an employee who was not within the protected class. Cf. Sarullo v. U.S. Postal

Serv., 352 F.3d 789, 798 n.7 (3d Cir. 2003) (noting that Title VII plaintiff need not show

that s/he was replaced by someone outside protected class to prove prima facie case of

discrimination if plaintiff shows that employer continued to seek out individuals with

similar qualifications).

       At trial, Meadowink did not dispute the fact that after its decision not to rehire

McGivern for the 1997 season, it hired four additional grounds-crew workers who were

not members of the protected class. The District Court, although acknowledging the post-

termination hires, found that McGivern was a full-time seasonal employee rather than a

mere grounds-crew worker and, therefore, that Meadowink did not in fact replace

McGivern.

       McGivern argued in the District Court and now on appeal that he was a mere

grounds-crew worker, that Meadowink formulated the “full-time seasonal employee”

designation only in response to this litigation, and that by hiring the additional workers,

Meadowink did indeed replace him with nonmembers of the protected class. In support

of this argument, McGivern notes that his employee folder terms his employment as



                                              7
“Golf Course,” that Meadowink described his employment in terms such as “laborer on

golf course” or “grounds maintenance” in its reports filed with public health and safety

entities, and that the preprinted weekly time sheets prepared by Meadowink for his

completion and submission had no category for “handyman,” “carpenter,” or “full-time

seasonal employee.” He also testified at trial that his primary duties at Meadowink

revolved around the routine maintenance of the golf course and that he did the carpentry

tasks for Meadowink on his own time, not in the regular course of his Meadowink

employment for which Meadowink paid him separately. McGivern’s direct supervisor,

Don LiPrado, testified that, although McGivern did engage in some carpentry work for

Meadowink, this work never interfered with his principal job, maintaining the golf

course. Referencing these documents and testimonies, McGivern maintains that the

District Court clearly erred in making the finding that he was a “full-time seasonal

employee,” and that Meadowink did not fill his position.

       McGivern’s argument is unavailing. At the bench trial, both Susan Tanto,

Meadowink’s General Manager, and Miller, the Operations Manager, testified that

Meadowink indeed classified McGivern, along with one other employee, as “full-time

seasonal employees.” Likewise, LiPrado testified that Meadowink classified McGivern

as a full-time seasonal employee. Perhaps more importantly, the evidence at trial showed

that McGivern’s employment, whatever its nomenclature, had features that served to

differentiate him from the mere grounds-crew employees, most particularly that he



                                             8
worked ten months out of the year. The employees Meadowink hired for the 1997 golf

season did not work McGivern’s ten-month season.

       At trial, Tanto explained that Meadowink used the terms it used for McGivern, i.e.,

“laborer,” “golf course” or as a member of “grounds maintenance,” to describe any

employee that did not occupy a supervisory position. Thus, the existence of several

documents describing McGivern in these terms does not render the District Court’s

decision that McGivern was a full-time seasonal employee clearly erroneous.

       Moreover, the trial record is replete with references to the various carpentry and

handyman projects McGivern completed for Meadowink. Among other projects,

McGivern enlarged Meadowink’s parking lot, repaired stairs, installed a shelf in the golf

clubhouse, and constructed a safety wall. And, apart from McGivern’s own testimony,

there is no evidence that Meadowink paid McGivern separately for these tasks. Indeed, at

an ultimate hourly wage of $10.00, McGivern enjoyed a significantly higher rate of

compensation than mere grounds-crew employees whose average hourly wage in 1996

was $6.91. The District Court did not clearly err in attributing this higher pay rate to

McGivern’s specialized and more highly-skilled duties and obligations. On this record,

the District Court’s determination that McGivern was a full-time seasonal employee was

not clearly erroneous, nor was its attendant finding that Meadowink did not replace

McGivern with nonmembers of his protected class.




                                              9
                                             III.

         The District Court further determined that, assuming arguendo that McGivern had

raised a prima facie case of age discrimination, he proffered insufficient evidence to rebut

Meadowink’s articulated legitimate and nondiscriminatory reason for its decision. This

was also a fact-based determination that we review for clear error. Robinson v. Lehman,

771 F.2d 772, 780 (3d Cir. 1985). The clearly erroneous standard of review is especially

appropriate where, as here, an appellant’s arguments center primarily on the district

court’s resolution of witness credibility issues. Hill v. Beyer, 62 F.3d 474, 482 (3d Cir.

1995).

         The employer satisfies its burden of production by introducing evidence which, if

taken as true, would permit the conclusion that there was a nondiscriminatory reason for

its decision. “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.” Fuentes v. Perskie, 32 F.3d

759, 763 (3d Cir. 1994) (emphasis in original). Thus, once the employer answers its

“relatively light burden” by articulating a legitimate reason for the unfavorable

employment decision, the burden of production rebounds to the plaintiff, who then must

show, by a preponderance of the evidence, that the employer’s explanation is pretextual.

Id.

         In this case, Meadowink contends that its decision to not rehire McGivern was



                                             10
based on budgetary concerns. Specifically, Meadowink maintains that it determined that

it would be more cost-effective to hire outside contractors to perform special projects than

to retain McGivern and have him complete such tasks. Moreover, Meadowink decided

not to hire McGivern as a part-time seasonal worker at a lower salary because, based on

Miller’s prior experiences, it believed that such a course of action would have generated

negative consequences.

       McGivern argues that the witnesses who testified at the bench trial on

Meadowink’s behalf respecting its asserted reason for the decision to not rehire

McGivern lacked credibility and that Meadowink only began calling him a “full-time

seasonal employee” to obscure the fact that it refused to rehire him based upon his age.

He therefore argues that the District Court clearly erred in finding that he had failed to

carry his burden of showing that Meadowink’s articulated nondiscriminatory reason for

its decision was pretextual.

       On this record, despite the vigorous arguments made by McGivern’s counsel in her

appellate brief, we cannot hold that the District Court’s decision that McGivern failed to

satisfy his burden of showing that Meadowink’s articulated, legitimate and

nondiscriminatory reason was pretextual was clearly erroneous. The District Court, after

reviewing the evidence and viewing the demeanor and composure of M eadowink’s

witnesses, credited Meadowink’s proffered rationale for its decision to not rehire

McGivern: “Based on the evidence presented during the non-jury trial, the court finds that



                                             11
defendant’s decision not to rehire plaintiff for the 1997 golf season was based on

budgetary concerns and was totally unrelated to plaintiff’s age.” App. at 11a. The clearly

erroneous standard of review allows only an assessment of whether there is enough

evidence on the record to support a district court’s findings, Robinson, 771 F.2d at 781.

There is in this case.

       Because the District Court’s finding on this point can “be reasonably inferred from

the entire trial record,” Scully v. US Wats, Inc., 238 F.3d 497, 506 (3d Cir. 2001), we will

affirm the judgment.
