                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-1995

Sempier v Johnson & Higgins
Precedential or Non-Precedential:

Docket 94-5208




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1995

Recommended Citation
"Sempier v Johnson & Higgins" (1995). 1995 Decisions. Paper 6.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/6


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1995 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                    ----------

                    No. 94-5208

                    ----------

                  BURT N. SEMPIER

                                Appellant
                           v.

                 JOHNSON & HIGGINS

                    ----------

On Appeal from the United States District Court
        for the District of New Jersey
           (D.C. Civil No. 92-01708)

                    ----------

      Argued Friday, September 23, 1994

BEFORE:    BECKER, COWEN and GARTH Circuit Judges

                    ----------

          (Opinion filed    January 6, 1995)

                    ----------


                           Charles F. Waskevich, Jr. (Argued)
                               Riker, Danzig, Scherer, Hyland
                                                   & Perretti
                                         One Speedwell Avenue
                                           Headquarters Plaza
                            Morristown, New Jersey 07962-1981

                                            Attorney for Appellant


                                                John F. Cannon
                                           Sullivan & Cromwell
                                              125 Broad Street
                                      New York, New York 10004
                                          Francis X. Dee (Argued)
                                   Carpenter, Bennett & Morrissey
                                              100 Mulberry Street
                                             Three Gateway Center
                                         Newark, New Jersey 07102

                                               Attorney for Appellee


                             ----------

                        OPINION OF THE COURT

                             ----------

GARTH, Circuit Judge:


          On March 9, 1994, the district court granted summary

judgment in favor of Johnson & Higgins ("J & H"), the employer of

appellant Burt Sempier.   Sempier now appeals the district court's

grant of summary judgment on his Age Discrimination in Employment

Act (ADEA) claim, 29 U.S.C. § 263 (1988),1 and the discretionary

dismissal of his pendent state law claims.     He also raises as

error the district court's substitution of a "Bill of

Particulars" in place of his interrogatories.



1
.   29 U.S.C. § 623(a) in relevant part provides:

          It shall be unlawful for an employer--
               (1) to fail or refuse to hire or to discharge any
          individual or otherwise discriminate against any
          individual with respect to his compensation, terms,
          conditions, or privileges of employment, because of
          such individual's age;
               (2) to limit, segregate, or classify his employees
          in any way which would deprive or tend to deprive any
          individual of employment opportunities or otherwise
          adversely affect his status as an employee, because of
          such individual's age . . . .
          We have jurisdiction pursuant to 28 U.S.C. § 1291 to

review the March 9, 1994 final order of the district court.

Because the record reflects a genuine issue of material fact

regarding whether J & H's asserted nondiscriminatory reasons for

discharging Sempier are pretextual, we will reverse the summary

judgment entered in favor of J & H.   We also conclude that the

district court abused its discretion in substituting its own

"Bill of Particulars" for Sempier's interrogatories.



                                I

          Sempier joined appellee J & H, an insurance brokerage

and employee benefits consulting firm, in 1968.2   Sempier worked

as Comptroller until 1971 when he became Treasurer of J & H.      In

1984, J & H created a new position of Chief Financial Officer

("CFO"), and the Board of Directors elected Sempier to that post.

          The parties dispute whether the J & H directors

criticized Sempier's performance as CFO.    Sempier avers that no

one advised him that his performance was less than satisfactory

nor did anyone bring to his attention any deficiencies in his

performance of his functions.   App. 300.   Robert Hatcher, the

firm's chairman who was Sempier's friend and had been

instrumental in Sempier being elected as CFO, states that he was

generally pleased with Sempier's work.   At the same time, he

acknowledges that other directors had criticized Sempier's

2
 . J & H is a closely held New Jersey corporation. It operates
as if it were a partnership. All stockholders are members of the
firm. All directors are employees of the firm.
performance.    App. 363-65.    Other J & H directors state in

affidavits that they believed that Sempier performed below

expectations.    App. 727 (affidavit of Eric Johnson); App. 778-79

(affidavit of Kenneth Hecken).

           In 1985, one year after Sempier assumed his duties as

CFO, an outside audit of the Finance Department, requested by

J & H director Eric Johnson, criticized the department's

operations.    App. 728-29.    After further investigation, Johnson

sought to have Sempier replaced.      Despite Johnson's criticisms,

J & H unanimously elected Sempier to the Board of Directors in

1986.   Hatcher supported Sempier's election to the Board of

Directors because he believed that this move would assist Sempier

in improving the Finance Department's operations.      When Sempier

was elected, J & H required that he execute a letter of

resignation that would become effective upon a two-thirds vote of

the Board of Directors.

           In May 1987, J & H removed Sempier from his

responsibilities as CFO and made him Chief Administrative Officer

("CAO") in charge of Management Information Systems ("MIS"),

Human Resources, Professional Development, and Real Estate and

Facilities.    Sempier was unanimously reelected to the Board in

1989.   Both sides dispute how Sempier performed as CAO.

           Due to the increasing importance of MIS services and

the department's unsatisfactory record, J & H decided to elevate

the MIS department's status by hiring a Chief Information Officer

("CIO"), thereby removing MIS from Sempier's supervision.

Notwithstanding some lobbying by Hatcher, the firm denied Sempier
the CIO position.    In December 1989, J & H hired Alan Page, who

is fourteen years younger than Sempier, as CIO.     The directors

elected Page to the board in 1990.

           Three months later, J & H hired Thomas Carpenter, who

is four years younger than Sempier, to assume responsibility for

Human Resources and Professional Development, starting in May

1990.   Carpenter's arrival left Sempier with significantly

reduced responsibilities.

           In May 1989, before either Page or Carpenter had been

hired, J & H had instituted an early retirement program to retire

"redundant" and "poorly performing" employees who were 55 years

of age or older.    App. 636-37.   The firm intended to use the

program either to "pull" employees into retirement through

incentives or to "push" them into retirement through involuntary

"terminations" which were to be characterized as downsizing.

App. 637 (Exhibit 8).

           In April 1990, Hatcher, who was still the Chairman of

J & H, advised Sempier to retire early with certain enhancements

to his existing retirement package.     Hatcher stated that Sempier

had "lost credibility" with unnamed senior managers.     App. 301.

Sempier refused to retire.    Hatcher responded, using strong and

unequivocal language, that Sempier had no choice but to retire or

to be forced out.    App. 302.

           Between April 1990 and April 1991, J & H engaged in

extended, and occasionally bitter, negotiations with Sempier

seeking to obtain his retirement or resignation.     In January

1991, David Olsen succeeded Hatcher as Chairman of J & H.     When,
in the spring of 1991, Sempier told Olsen that he had hired a

lawyer, Olsen told Sempier that he could no longer return to

J & H and should vacate his office.     App. 81.   At the same time,

Olsen wrote the firm's general counsel that "[i]t's obviously

time for hardball."   App. 80.   After Sempier consistently refused

to retire, the Board made effective Sempier's previously executed

resignation in June 1991.

           Sempier filed an age discrimination claim with the

Equal Employment Opportunity Commission, received a right to sue

letter, and instituted an ADEA suit in the District of New Jersey

with pendent state law claims for   breach of contract as well as

violations of the New Jersey Law Against Discrimination and the

New Jersey Business Corporations Act.    J & H answered that

Sempier had been discharged for poor performance.

           At the outset of the litigation, Sempier served two

sets of interrogatories and a series of document requests on

J & H.    When J & H refused to respond to a substantial portion of

the discovery requested, Sempier sought an order from the

magistrate judge which would have compelled J & H to respond.

The magistrate judge denied Sempier's motion.      On appeal, the

district court judge vacated the order of denial but remanded the

dispute to the magistrate judge without entering an order

compelling discovery.   On remand, the magistrate judge relieved

J & H from answering the original two sets of interrogatories and

required that Sempier draft a third set of interrogatories.         App.

563-64.   After J & H refused to answer almost all of these

interrogatories, Sempier again sought a second order compelling
discovery.   The magistrate judge denied Sempier's motion to

compel answers and ordered J & H to provide information

responding to a "Bill of Particulars" drafted by the court.    App.

576.   On appeal, the district court affirmed the magistrate

judge's order and added one question of its own to the "Bill of

Particulars."

           Between November and December 1993, the parties

disputed whether J & H had complied with the court's orders to

answer the court's questions and to provide documents.    In

December, Sempier filed additional motions for an order to compel

discovery and for partial summary judgment.   J & H replied with

its motion for summary judgment.

           The district court granted J & H's summary judgment

motion on the ADEA claim and dismissed the remaining pendent

claims without prejudice.   The district court expressed concern

that Sempier had not made out a prima facie case because of an

inability to show that he was a qualified employee or replaced by

a sufficiently younger employee to raise an inference of age

discrimination.   Nonetheless, it turned to J & H's asserted

nondiscriminatory reasons for Sempier's discharge and Sempier's

evidence of pretext.

           The district court found that J & H had come forward

with two alleged reasons for Sempier's discharge: (1) that

Sempier's reduced responsibilities did not justify his continued

presence on the Board of Directors and (2) that Sempier's poor

performance had justified the reduction in his responsibilities

and eventual discharge.   Moreover, the district court held that
Sempier had not produced sufficient evidence to allow a jury to

find that J & H's alleged nondiscriminatory reasons were a

pretext for discrimination.    Accordingly, the court entered a

judgment in favor of J & H, denied Sempier's motion for partial

summary judgment, and dismissed Sempier's pendent state law

claims without prejudice.

          Sempier filed a timely appeal.



                                  II

                                  A.

             When we review a grant of summary judgment, we apply

the same test that the district court should have applied

initially.    Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896

(3d Cir.) (en banc), cert. dism'd, 483 U.S. 1052 (1987).     Summary

judgment is appropriate only when the admissible evidence fails

to demonstrate a dispute of material fact and the moving party is

entitled to judgment as a matter of law.    Id.; see Fed. R. Civ.

Proc. 56(c) (1994).    When the moving party (here, J & H) does not

bear the burden of persuasion at trial, the moving party may meet

its burden on summary judgment by showing that the nonmoving

party's (here, Sempier's) evidence is insufficient to carry its

burden of persuasion at trial.    Celotex Corp. v. Catrett, 477
U.S. 317, 323-24 (1986).     Thereafter, the nonmoving party creates

a genuine issue of material fact if sufficient evidence is

provided to allow a reasonable jury to find for him at trial.

Anderson v. Liberty Lobby, 477     U.S. 242, 248 (1986).
          In reviewing the record, the court must give the

nonmoving party the benefit of all reasonable inferences.     Josey

v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993);

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.

1992); Chipollini, 814 F.2d at 900; see also id. at 901

(discussing the impropriety of credibility determinations on

summary judgment); Josey, 996 F.2d at 639 (same).



                                B.

          Sempier prosecuted his case on the "pretext" theory

announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973) and later clarified in Texas Department of Community

Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor

Center v. Hicks, __ U.S. __, 113 S. Ct. 2742 (1993).3

          As applied to ADEA cases, the plaintiff establishes a

prima facie case by showing that (1) he is over 40, (2) he is

qualified for the position in question, (3) he suffered an

adverse employment decision, and (4) he was replaced by a

sufficiently younger person to create an inference of age

discrimination.   Chipollini, 814 F.2d at 897.4   This showing
3
 . Although the pretext framework originated in the context of
Title VII, it has been applied to the ADEA. See, e.g., Geary v.
Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324
n.4 (3d Cir. 1993).
4
 . Sempier's complaint appears to suggest that J & H violated
the ADEA not only by discharging him as an employee but also by
removing him as a director. For the most part, the record and
the parties' briefs treat these two events as functionally
identical. Whether the ADEA extends to cover Sempier's status as
a director is a function of Sempier's duties and not his title.
See Nationwide Mutual Insurance Co. v. Darden, 112 S. Ct. 1344,
creates a presumption of age discrimination that the employer

must rebut by stating a legitimate nondiscriminatory reason for

the adverse employment decision.   Hicks, __ U.S. at __, 113 S.

Ct. at 2747; Chipollini, 814 F.2d at 897.   The plaintiff then has

the opportunity to demonstrate that the employer's stated reasons

were not its true reasons but were a pretext for discrimination.

Hicks, __ U.S. at __, 113 S. Ct. at 2747; Chipollini, 814 F.2d at

897.   He may do this through direct or circumstantial evidence of

falsity or discrimination.   Chauhan v. M. Alfieri Co., Inc., 897

F.2d 123, 128 (3d Cir. 1990); Chipollini, 814 F.2d at 898-99.

           Moreover, to defeat a summary judgment motion based on

a defendant's proffer of a nondiscriminatory reason, a plaintiff

who has made a prima facie showing of discrimination need only

point to evidence establishing a reasonable inference that the

employer's proffered explanation is unworthy of credence.

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).    A plaintiff

is not required to produce evidence which necessarily leads to

the conclusion "that the employer did not act for the

nondiscriminatory reasons." Sorba v. Pennsylvania Drilling Co.,
(..continued)
1348-49 (1992) (considering the definition of employee under
ERISA); Frankel v. Bally, Inc., 987 F.2d 86, 89-91 (2d Cir. 1993)
(considering the test for who is covered under the ADEA); Equal
Employment Opportunity Commission v. Zippo Manufacturing Co., 713
F.2d 32, 36-38 (3d Cir. 1983) (same); Equal Employment
Opportunity Commission v. First Catholic Slovak Ladies
Association, 694 F.2d 1068, 1070 (6th Cir. 1982) (holding that
plaintiff's status as a director did not prevent the application
of the ADEA to plaintiff's position as an employee), cert.
denied, 464 U.S. 819 (1983). To the extent that Sempier on
remand pursues relief related to his status as a director, this
issue should be resolved by trial on the basis of the parties'
proof of his functions at J & H in that capacity.
821 F.2d 200, 205 (3d Cir. 1987), cert. denied, 484 U.S. 1019

(1988).



                                III

           Without holding that Sempier failed to establish a

prima facie case, the district court questioned whether Sempier

made out a prima facie case of discrimination.    The district

court doubted that Sempier had shown that he was qualified to

work as the Chief Administrative Officer of J & H and doubted

that he was replaced by a sufficiently younger employee to raise

an inference of age discrimination.

           We note however that the prima facie case under the

McDonnell Douglas-Burdine pretext framework is not intended to be

onerous.   Burdine, 450 U.S. at 253.   The prima facie case merely

"raises an inference of discrimination only because we presume

these acts, if otherwise unexplained, are more likely than not

based on the consideration of impermissible factors."    Furnco

Construction Co. v. Waters, 438 U.S. 567, 577 (1978).
                                  A.

             We determine a plaintiff's qualifications for purposes

of proving a prima facie case by an objective standard.       Weldon

v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990); Jalil v. Avdel

Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S.

1023 (1990).     "[W]hile objective job qualifications should be

considered in evaluating the plaintiff's prima facie case, the

question of whether an employee possesses a subjective quality,

such as leadership or management skill, is better left to"

consideration of whether the employer's nondiscriminatory reason

for discharge is pretext.    Weldon, 896 F.2d at 798.      "Thus, to

deny the plaintiff an opportunity to move beyond the initial

stage of establishing a prima facie case because he has failed to

introduce evidence showing he possesses certain subjective

qualities would improperly prevent the court from examining the

criteria to determine whether their use was mere pretext."       Id.

at 798-99.

             Here, the district court misapplied this rule when it

evaluated Sempier's qualification by reference to J & H's

subjective criticism that Sempier lacked "management oriented"

skills and leadership ability.    App. 895.   Sempier had the

objective experience and education necessary to qualify as a

viable candidate for the positions he held.     He had held

executive level positions at J & H for over twenty years.

             Sempier also relied on the affidavit and depositions of

Hatcher, J & H's chairman.    Hatcher had testified that he had

been satisfied with Sempier's performance.     App. 895.    In
response to this record, the district court observed, "[a]lthough

it would be unusual for a corporation to place an unqualified

individual in an executive position, it is not unimaginable."

App. 896-97.   In so stating, the district court failed, as

required on summary judgment, to consider the evidence in the

light most favorable to Sempier, the nonmoving party.   See Josey

v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993);

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.

1992); Chipollini, 814 F.2d at 900.   Indeed, the district court

apparently inferred that Sempier was unqualified for the position

he held.

           Contrary to the inference of the district court, if we

consider the evidence in the light most favorable to Sempier, the

record of his twenty years employment as an executive, his record

as Comptroller and then Treasurer of J & H, his election to the

Board on two occasions, and his appointment as Chief Financial

Officer and then as Chief Administrative Officer leads to the

almost inevitable inference that he was qualified for the

position from which he was discharged.   As we have said in a

similar context, "[t]hus, [plaintiff's] satisfactory performance

of duties over a long period of time leading to a promotion

clearly established his qualifications for the job."    Jalil, 873
F.2d at 707.   Sempier's qualifications therefore satisfy the

second prong of the prima facie case that Sempier was charged

with establishing, thus putting to rest the doubts raised by the

district court.
                                 B.

            To complete his prima facie case, Sempier does not need

to produce compelling evidence or conclusive proof that J & H's

adverse employment decision resulted from age discrimination.

Chipollini, 814 F.2d at 900.    Rather he may point to a sufficient

age difference between himself and his replacement such that a

fact-finder can reasonably conclude that the employment decision

was made on the basis of age.   Maxfield v. Sinclair Intern'l, 766

F.2d 788, 792 (3d Cir.), cert. denied, 474 U.S. 1057 (1985).      Nor

is there any particular age difference that must be shown.     Id.

Different courts have held, for instance, that a five year

difference can be sufficient, Douglas v. Anderson, 656 F.2d 528,

533 (9th Cir. 1981), but that a one year difference cannot.

Gray, 957 F.2d at 1087.

            The district court in this case considered only the

four year age difference between Sempier and Carpenter, who had

taken over some of Sempier's responsibilities.    However, we are

not limited to considering only Sempier's final replacement.

Four months prior to the date that Carpenter became responsible

for Human Resources and Professional Development at J & H, a

substantial portion of Sempier's other functions were transferred

to Alan Page.    Page is well over ten years younger than Sempier.

App. 711.    The combined differences in age between Sempier on the

one hand and Page and Carpenter on the other is clearly
sufficient to satisfy the fourth prong of a prima facie case by

raising an inference of age discrimination.5



                               IV

                               A.

          Having concluded that the record is more than

sufficient to dispel the district court's doubts as to Sempier's

prima facie case, we turn now to consider the evidence of J & H's

alleged reasons for Sempier's discharge.   As we earlier stated,

after the plaintiff has established a prima facie case, the


5
 . J & H contends that we cannot consider the transfer of
Sempier's duties to Page because it occurred outside of the 300
day period for filing a separate claim of age discrimination.
J & H's Brief at 38; see 29 U.S.C. § 626(d) (providing a 300 day
period in which to file an administrative charge).

          The argument is disingenuous. J & H relies on the
incremental removal of Sempier's management responsibility over
Management Information Systems to justify Sempier's dismissal;
however, J & H asks us to limit our consideration of Sempier's
case to the facts that fall within the 300 days immediately prior
to when Sempier filed his administrative charge. Although
Carpenter was the last person to assume any of Sempier's
responsibilities, the process that led to Sempier's eventual
discharge began with the transfer of MIS authority from Sempier
to Page.

          The statute of limitations for filing a charge of
discrimination may have barred our consideration of the transfer
of MIS authority to Page if that was Sempier's cause of action,
but it does not prevent us from considering that event in order
to determine whether Sempier has raised an inference of age
discrimination as a part of his prima facie case. See United
Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (barring a
separate claim of discrimination, but permitting use of the prior
events as evidence to prove a case of discrimination based on a
separate claim); Colgan v. Fisher Scientific Co., 935 F.2d 1407,
1420-21 (3d Cir.), cert. denied, 112 S. Ct. 379 (1991).
employer must produce evidence of a nondiscriminatory reason to

rebut the presumption of discrimination created by the prima

facie case.   Hicks, __ U.S. at __, 113 S. Ct. at 2747;

Chipollini, 814 F.2d at 897.

          Here, J & H has presented two reasons.     First, J & H

states that it terminated Sempier because his company duties no

longer justified retaining him in his position.     Second, it

contends that Sempier performed those duties poorly.     J & H

attempted to establish each of these justifications through

affidavits of J & H executives and directors.      As we understand

the record, J & H's nondiscriminatory reasons for Sempier's

discharge come down to this:     Sempier performed so poorly that

almost all of his responsibilities at the firm were transferred

to others, leading ultimately to Sempier's discharge.

          J & H produced the affidavits of two directors, who had

previously supervised Sempier, reflecting the directors'

discontent with Sempier's work.     App. 778-79, 783-84 (affidavit

of Hecken); App. 726-32 (affidavit of Johnson).     Additionally,

Hatcher's affidavit averred that many directors did not regard

Sempier highly and that Hatcher had used his influence to have

Sempier elected to the Board against the other directors' wishes.

App. 365, 369-70.      To corroborate these assertions, J & H

included a consultant's report that criticized the operations of

the finance department during 1985-1987 when Sempier served as

CFO.   App. 738-749.    Finally, the company produced documents

disclosing that Sempier received less compensation from the
directors' merit compensation pool than some of the other

directors who held comparable positions.



                                B.

           On the other hand, Sempier claims that these

allegations of poor performance are not worthy of credence and

are no more than a pretext for discrimination.    The Supreme

Court, in Saint Mary's Honor Center v. Hicks, __ U.S. __, 113 S.

Ct. 2742 (1993), recently clarified the showing of pretext that a

plaintiff must make to win a discrimination case.    Rejection of

the employer's nondiscriminatory explanation does not compel a

verdict in favor of the employee, but it permits the trier of

fact to infer discrimination and find for the plaintiff on the

basis of the allegations of discrimination in his prima facie

case.   Hicks, __ U.S. at __, 113 S. Ct. at 2749; Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Seman v. Coplay Cement

Co., 26 F.3d 428, 433 (3d Cir. 1994).   "The factfinder's

disbelief of the reasons put forward by the [employer] . . . may,

together with the elements of the [employee's] prima facie case,

suffice to show intentional discrimination."     Hicks, __ U.S. at
__; 113 S. Ct. at 2749.

           Accordingly, "a plaintiff who has made out a prima

facie case may defeat a motion for summary judgment by either (i)

discrediting the proffered reasons, either circumstantially or

directly, or (ii) adducing evidence, whether circumstantial or

direct, that discrimination was more likely than not a motivating

or determinative cause of the adverse employment action."
Fuentes, 32 F.3d at 764 (emphasis in original).    If the plaintiff

produces sufficient evidence of pretext, he need not produce

additional evidence of discrimination beyond his prima facie case

to proceed to trial.   Id.

          Pretext is not demonstrated by showing simply that the

employer was mistaken.   Ezold v. Wolf, Block, Schorr and Solis-

Cohen, 983 F.2d 509, 531 (3d Cir. 1992), cert. denied, 114 S. Ct.

88 (1993).   Instead the record is examined for evidence of

inconsistencies or anomalies that could support an inference that

the employer did not act for its stated reasons.    Josey v. John

R. Hollinsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993).

          Thus, we turn to the record to determine whether

Sempier has produced sufficient evidence to allow a jury to find

that J & H did not terminate him for poor performance.     Sempier

emphasizes three evidentiary threads which create a genuine issue

of material fact.   He first points to statements in his own

affidavit, in Hatcher's affidavit, and in Hatcher's deposition

testimony that his performance was satisfactory.    App. 321, 325

(Sempier); App. 363-65 (Hatcher); App. 797 (Hatcher).    The

district court found that Hatcher's additional statement that

other directors did not agree with Hatcher's favorable assessment

undermined the credibility of Hatcher's assertions of

satisfactory performance.    While we may or may not find Sempier's

self evaluation and Hatcher's assessments of Sempier's

performance to be compelling evaluations of Sempier's work, it is

neither our role nor the district court's role on summary

judgment to compare the testimony of various affiants and decide
who is credible.    Chipollini, 814 F.2d at 901; Josey, 996 F.2d at

637.

          The district court, citing Billet v. CIGNA Corp., 940

F.2d 812 (3d Cir. 1991), also concluded that Sempier's self

evaluation was meaningless because only J & H's evaluation of

Sempier's performance was at issue.   Billet states that the

inquiry into pretext centers upon the employer's beliefs and not

the employee's own perceptions.    Id. at 825 ("However,

[plaintiff's] view of his performance is not at issue; what

matters is the perception of the decision maker.").   Nonetheless,

Billet does not stand for the proposition that the employee's

belief that his performance was satisfactory is never relevant.

Billet concluded that the employee's assertions of his own good

performance were insufficient to prevent summary judgment where

the employer produced performance reviews and other documentary

evidence of misconduct and insubordination that demonstrated poor

performance.   Id. at 818-22.

          Where, as here, Sempier asserts not only that he

performed well but that he never received any unfavorable

criticism that his performance was poor or inadequate, the jury

could conclude that J & H's failure to fault Sempier's

performance for the twenty years prior to the negotiations

leading to his discharge makes suspect its post hoc assertions of
poor performance.   This is especially true when J & H has failed

to produce any other evidence of poor performance or make

specific allegations of Sempier's deficiencies.
          Sempier next points to two formal performance

evaluations from 1988 and 1989 in which Hecken, Sempier's

supervisor, wrote that Sempier's performance was satisfactory.

App. 308-19.   In considering these evaluations, the district

court stated, solely on the basis of Hecken's affidavit, that

"[t]he evaluations were a first attempt by Defendant to open the

lines of communication between lower level directors and the

senior members of the board to whom they reported.   Viewed in

this light, they are of little value in determining Plaintiff's

true level of performance."   App. 906.   In so stating, the

district court ignored the testimony of Hatcher at his deposition

that any critical comments concerning Sempier's performance

should be recorded in the performance evaluations.   App. 799.

Hatcher also said that the compensation committee had previously

used the evaluations in determining directors' compensation.

App. 824-26.   On summary judgment, it is not the court's role to

weigh the disputed evidence and decide which is more probative.

          Finally, Sempier points to the coercive early

retirement program that J & H instituted shortly before it forced

Sempier's resignation.   J & H documents showed that the company

instituted this program to generate a significant number of

retirements largely through monetary incentives.   The district

court correctly concluded that the use of an early retirement

program to dismiss redundant or underperforming employees is not

by itself a violation of the ADEA.   See Gray v. York Newspapers,

957 F.2d 1070, 1080-81 (3d Cir. 1992); Colgan v. Fisher
Scientific Co., 935 F.2d 1407, 1422 (3d Cir.), cert. denied, 112
S. Ct. 379 (1991).   On the other hand, an early retirement

program designed to force employees who reach a senior age to

leave or face significant pressure to resign or retire might

itself create an inference of age discrimination.    Gray, 957 U.S.

at 1081 (citing Henn v. National Geographic Soc'y, 819 F.2d 824,

826, 828-29 (7th Cir.), cert. denied, 484 U.S. 964 (1987)).     It

is impermissible to force older employees to choose between

retirement or termination in an effort to eliminate older workers

on account of their age.

          The record clearly discloses that Hatcher told Sempier

in no uncertain terms that he could either retire, face

continuing pressures to retire, or be terminated.6   The record

also reflects a mandatory policy at J & H that directors must

retire at set intervals corresponding to age.   Later, after the

company learned that Sempier had sought legal counsel, Olsen,

J & H's Chairman, told Sempier to pack his office and leave.

While this evidence does not itself establish age discrimination,

a jury might reasonably determine from these events that J & H

offered Sempier early retirement as an effort to remove him

because of his age and not because of poor performance.

          In cases such as the present one, the question for the

court is whether the record "could support an inference that the

employer did not act for non-discriminatory reasons, not whether

6
 . In the April meeting at which Hatcher recommended early
retirement, Sempier recites that Hatcher told Sempier that
unnamed J & H managers "would let me [Sempier] rot, would cut my
balls off and otherwise make it unpleasant for me to stay." App.
302.
the evidence necessarily leads to that conclusion that the

employer did act for discriminatory reasons."    Chipollini, 814

F.2d at 900 (emphasis in original); see also Fuentes, 32 F.3d at

764 (stating that the plaintiff need not show more than that the

employer's articulated reasons were implausible to survive

summary judgment).    When the evidence is read in the light most

favorable to Sempier, a jury could reasonably find that J & H did

not terminate him because of poor performance but rather

discharged him because of his age.



                                  V

          To recap, once Sempier had made out a prima facie case

of age discrimination, a presumption arose that J & H had

discriminated against him.     Burdine, 450 U.S. at 254.   J & H

dispelled that presumption by coming forward with a

nondiscriminatory reason for Sempier's discharge, leaving nothing

but the permissible inference of discrimination created by the

prima facie case.     Hicks, __ U.S. at __; 113 S. Ct. at 2748-49.

Sempier's attack on J & H's stated reasons for his discharge

leaves us with the paradigmatic case in which each party has

produced testimony and evidence that conflicts on the ultimate

issue -- whether Sempier was discharged for poor performance or

because of his age.    The resulting conflict must be resolved by a

jury and cannot be resolved on summary judgment.    Thus, the

summary judgment entered in favor of J & H must be reversed.7

7
 . Sempier also raises as error the district court's denial of a
partial summary judgment in his favor on the issue of liability.
                                VI

          In addition to challenging the district court's order

which granted summary judgment to J & H, an order which we now

hold must be reversed, Sempier also complains that the district

court abused its discretion in ruling on his discovery efforts.

In so doing, Sempier contends that he was prevented from

marshalling additional evidence establishing that J & H's

proffered reason for his discharge was pretextual.8

          We normally do not become involved with "nitty gritty"

rulings on discovery matters.   Nor do we generally engage in

exercises to determine whether a party's interrogatories are

relevant or are unduly burdensome.   This appeal, however,

requires that we review the actions taken by the magistrate judge

and the district court judge with respect to discovery sought and

answered by the parties.   While we will not examine each jot and




(..continued)
Sempier argues that J & H presented no evidence of his poor
performance. As we have discussed in text, the record reflects
that both Sempier and J & H have adduced conflicting evidence
over the reason for his discharge. This resulting conflict could
not be resolved by summary judgment in Sempier's favor.
8
 . Sempier strongly disputes J & H's contention that he had
chosen to resist J & H's renewed motion for summary judgment
without completing the depositions that had been scheduled.
Sempier claims that the documents he sought from J & H were
essential in order to conduct his remaining depositions. He
asserts that the district court for that reason alone should have
denied J & H's motion for summary judgment and should have
permitted Sempier to complete his discovery. (Sempier Reply
Brief at p. 23.)
tittle of the discovery process, it is important to our analysis

that some background be furnished.

          Sempier's complaint was filed in April 1992.     In June

1992, Sempier served his first set of interrogatories and a

request for production of documents.   In July 1992, Sempier

served a second set of interrogatories with a second request for

production of documents.   Unfortunately, not all of the

interrogatories that were served have found their way into the

record, and thus, into the appendix.   We have examined those that

have been reproduced in the appendix, and we find it difficult to

understand how the magistrate judge could have condoned the

answers given by J & H.    Moreover, we are perplexed by the

failure of the magistrate judge or the district court judge to

compel responsive answers to the interrogatories -- almost all of

which appear to us to be relevant and directed to the issues of

Sempier's employment, performance and relationship with J & H.

          For example, Interrogatory No. 36 sought the name of

each and every person who had supervision and/or control over

Sempier from January 1, 1986 through the termination of Sempier's

employment.   It also sought, with respect to each such supervisor

identified, the job title, the department supervised, the duties

and responsibilities of the job, the date on which he or she

assumed the supervisory position, and, if the individual was not

still employed, the date and reason of termination and the last

known address.   True, that interrogatory sought as well the date

of hire, date of birth and educational background, but those

three inquiries, if not deemed relevant in the district court's
judgment, could have been excised and the remainder of the

interrogatory answered.    Yet J & H objected to the interrogatory

on the grounds that it was "overbroad, unduly burdensome, and

exceeding the scope of permissible discovery."    J & H then

referred Sempier to a J & H Position Statement which does not

even appear to be part of the record.

          Again, Interrogatory No. 44 asked J & H if it

voluntarily terminated the employment and/or relationship of

Sempier with J & H.    J & H's response reads:   "Defendant refers

plaintiff to pages 3 through 17 of the J & H Position Statement."

The following interrogatory, Interrogatory No. 45, sought the

dates on which the decision to terminate Sempier was made, and

J & H's response was "See Interrogatory No. 44."     Interrogatory

No. 46 sought the factual basis for J & H's decision to terminate

Sempier and/or the relationship of Sempier with J & H.    The

answer given by J & H:    "Defendant refers plaintiff to the J & H

Position Statement."    The other interrogatories which we have

reviewed -- all seemingly relevant -- have been answered in much

the same manner.   All of J & H's answers disregard the

requirements of the Federal Rules of Civil Procedure.     See Fed.

R. Civ. P. 33(a) (requiring separate and complete answers unless

specific objections are provided); 26(b) (defining the scope of

discovery) (1993 version).9

9
 . Lead counsel for J & H is apparently the New York law firm of
Sullivan & Cromwell. Perhaps this accounts for the lack of
familiarity with New Jersey Federal Court practice. We note,
however, that J & H had local counsel. It is a matter of concern
to us that the discovery practice in this case was so badly
abused when at the least, local counsel had to have recognized
          Without dwelling further on this subject, we observe

that the magistrate judge did not compel the answers which

Sempier sought.   Rather, he relieved J & H from answering the

various discovery requests and instructed Sempier to issue a

third set of interrogatories and a third document request.   The

latter two discovery requests were no more answered than the

earlier ones.   In lieu of compelling answers to the third set of

interrogatories served by Sempier, the district court instructed

J & H to answer a four question "Bill of Particulars."

          Against this background, we consider Sempier's

arguments.   Under the Federal Rules of Civil Procedure and our

jurisprudence, district courts have broad discretion to manage

discovery.   See, e.g., Walter v. Holiday Inns, Inc, 985 F.2d

1232, 1237 n.4 (3d Cir. 1993) (allowing over a one year delay in

the production of documents is not an abuse of discretion); Beard

v. Braunstein, 914 F.2d 434, 446 (3d Cir. 1990) (affirming

monetary sanction for failure to answer interrogatories); Comdyne

I, Inc. v. Corbin, 908 F.2d 1142, 1146 (3d Cir. 1990) (affirming

district court order striking the pleadings for failure to answer

interrogatories).   Nonetheless, the district court's discretion

has boundaries, and in particular, we frown upon unnecessary

discovery limitations in Title VII, and hence ADEA, cases.     See
Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983).        In

such cases, other courts have refused, and now we refuse, "to

(..continued)
the need to conform to the standards of discovery practice which
have long been established in the District of New Jersey.
allow procedural technicalities to impede the full vindication of

guaranteed rights."    Id. at 406.   A plaintiff in an ADEA case, as

Sempier is here, should not be hamstrung by the district court in

limiting his discovery.    In substituting a "Bill of Particulars"

for those means of discovery authorized by the Federal Rules of

Civil Procedure, the district court here far exceeded the

outermost limits on its discretion.

             Since 1938, civil discovery has been an attorney-

initiated, attorney-focused procedure.    The vast majority of

federal discovery tools operate, when used properly, almost

entirely without the court's involvement.     See Fed. R. Civ. P.

26(f) (requiring the parties to devise and submit a discovery

plan); Fed. R. Civ. P. 30 ("[A] party may take the testimony of

any person, including a party, by deposition upon oral

examination without leave of court."); Fed. R. Civ. P. 34(b)

(production of documents); cf. Fed. R. Civ. P. 35 (providing for

physical examinations only by leave of the court); see also

William Schwartzer, The Federal Rules, the Adversary Process, and

Discovery Reform, 50 U. Pitt. L. Rev. 703, 714-16 (1989).

             Indeed under the recent amendments to Federal Rule of

Civil Procedure 26(a), which became effective December 1, 1993 in

the District of New Jersey, a party must provide discovery

"without waiting [for] a discovery request."    Under this scheme,

when civil litigation proceeds smoothly, the parties conduct

discovery with minimal interference from and minimal appeal to

the court.    Through the discovery process, even before the

amendments became effective, the attorneys obtain answers to
questions that they feel are relevant to the issues if not

determinative of the issues.   8A Charles Allen Wright & Arthur P.

Miller, Federal Practice and Procedure § 2162 (1970).   Nowhere in

the process is the district court authorized to initiate its own

questioning or to seek documents for itself.   See John H.

Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L.

Rev. 823, 827-30 (1985) (noting the difference between civil law

procedure in which judges initiate the investigation and common

law procedure in which the parties conduct the investigation).

          When the parties stray from this course, Rule 37

provides the court with tools to give the litigants new and

proper bearings.   A court may compel answers to interrogatories

or deposition questions, compel the production of documents, or

conversely, grant protective orders.   Fed. R. Civ. P. 37; Fed. R.

Civ. P. 26(b)(5)(c).   If these measures fail, a court may order

facts established, forbid the introduction of evidence, strike

the pleadings, file a default judgment, dismiss the action, or

hold a party in contempt of court.   Fed. R. Civ. P. 37(b); see

also National Hockey League v. Metropolitan Hockey Club, Inc.,

427 U.S. 639, 642 (1976) (upholding dismissal of a claim for

discovery violations); Quinter v. Volkswagen of America, 676 F.2d
969 (3d Cir. 1982) (affirming an order holding a party in

contempt for violation of discovery procedures).   However, none

of the weapons in this formidable arsenal include the wholesale

substitution of court-engineered discovery.

          The district court was evidently not content with the

contents of its discovery arsenal.   Rather, it abandoned the
structure and command of the Rules to revive a procedural device

abandoned in civil practice forty-five years ago.      See Singer

Manufacturing Co. v. Axelrod, 16 F.R.D. 460, 461 (S.D.N.Y. 1954)

(noting the elimination of the "Bill of Particulars" in favor of

interrogatories in 1948); Wright & Miller, supra § 2167 (1970 &

supp. 1994) (stating that Fed. R. Civ. P. 33 replaced the "Bill

of Particulars" in equity in 1948 without lament).      Although

still used in criminal matters, a "Bill of Particulars" has not

graced the shores of federal civil discovery since the 1950s.       8

James Wm. Moore, Moore's Federal Practice ¶ 7.06[1] (2d ed.

1994).    Even in criminal matters, a "Bill of Particulars" is not

generally considered a discovery device.   Id. (citing among other

cases United States v. Smith, 776 F.2d 1104, 1111 (3d Cir.

1985)).    In this case, it was not only an unwelcome and

inappropriate incursion by the district court into the parties'

dispute, but it severely trenched upon the Rules of Civil

Procedure which have been crafted to provide information as to

matters relevant to the issues disputed.    Fed. R. Civ. P.

26(d)(1).

            Sempier had served his interrogatories in compliance

with Federal Rule of Civil Procedure 33.    The Rule provides,

"[e]ach interrogatory shall be answered separately and fully in

writing under oath, unless it is objected to, in which event the

objecting party shall state the reasons for objection and shall

answer to the extent the interrogatory is not objectionable."

J & H believed the interrogatories were objectionable and stated

its objections.    Sempier sought to compel answers.
           The court could have denied the discovery on the ground

that it was privileged, burdensome, duplicative, or otherwise

outside of the scope of discovery.     Fed. R. Civ. P. 26(b).   It

could have compelled answers and awarded attorney's fees and/or

sanctions.    Fed. R. Civ. P. 37(b).   It did none of these things

nor did it comply with its obligation to consider and rule upon

each interrogatory to which J & H objected.     See Nestle Foods

Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 109-112

(D.N.J. 1990); Robbins v. Camden City Bd. of Educ., 105 F.R.D.

49, 57-60 (D.N.J. 1983).    Rather than rule upon the objections,

the district court decided that "[the] Magistrate Judge . . .

provided a mechanism (bill of particulars) for further discovery

regarding the precise issue outlined in this Court's September 7,

1993 Order."    App. 611.

           The district court may have disliked its obligation to

examine each interrogatory and review the magistrate judge's

ruling.   Regardless of its feelings, the district court, guided

only by its own discretion and determination of what is important

or relevant, could not rewrite a party's questions and in effect

serve its own set of interrogatories.     When the court took upon

itself to author the questions being asked, it virtually became a

participant in the parties' controversy in a manner inconsistent

with fundamental conceptions of the role of a judge in our common

law system.

           In this case, the district court reformulated Sempier's

interrogatories into four broad questions about Sempier's

performance.    The magistrate judge reframed specific requests
pertaining to the reasons considered by J & H, and the reasons

upon which J & H actually relied to terminate Sempier, into a

vague question, "[w]hy were Plaintiff's job responsibilities

reassigned?"   Pertinent and direct interrogatories, that were

propounded by Sempier, sought the dates of conversations

regarding Sempier's performance and the names of the participants

in those discussions.    Those interrogatories were replaced by the

district court with a vague and general "Bill of Particulars."

Because the district court's questions were, with one exception,

general, nonspecific, and broad, the resulting answers, to the

extent that they answered the questions at all, were

uninformative and of little value.    Sempier had good reason to

draft specific interrogatories and had a right to expect

correspondingly specific answers.    The district court's

substitution of its own work product denied Sempier this

opportunity.

          We have examined the Supplemental Bill of Particulars

(App. 766-772) which contains the questions framed by the

magistrate judge and the district court judge, and we have

examined closely J & H's answers.    Those answers can best be

described as an attempt, if not to outwit, then to frustrate all

legitimate efforts to furnish information to an adversary.10

Moreover, whereas Federal Rule of Civil Procedure 33 provides

that interrogatories must be answered under oath and thus may be

evidentiary, there is no such provision in the Federal Rules of

10
 .   See note 9 supra.
Civil Procedure for a "Bill of Particulars."    Indeed, there is no

provision at all for "Bills of Particulars" -- and for good

reason.    As we have noted, "Bills of Particulars" were replaced

by the discovery rules of the Federal Rules of Civil Procedure.

Wright & Miller, supra § 2167.

            The district court's action was unauthorized by the

Federal Rules of Civil Procedure and in violation of the

principles of our jurisprudence.    The Federal Rules of Civil

Procedure, which must obtain Supreme Court and Congressional

approval, not only prescribe the procedures to be followed by

counsel, but they also prescribe the Rules under which the courts

operate.    See Umbenhauer v. Woog, 969 F.2d 25, 32 (3d Cir. 1992)

("Neither we, the Department of State, nor the Administrative

Office of the United States Courts possess the authority to

circumvent, ignore or deviate from the Federal Rules of Civil

Procedure, which were approved by the Judicial Conference of the

United States, the Supreme Court of the United States, and

Congress.")    By venturing so far outside the parameters set by

the Rules, the court abused its discretion.

            Our discussion and holding here does not leave the

district court powerless to manage the discovery difficulties

presented by this and similar cases.    On the contrary, the

district court has considerable authority and discretion by which

to resolve discovery disputes.     Indeed, if discovery has reached

an impasse or a nonproductive stage either through counsel's

obstinacy, intransigence, or even incompetence, the district

court can always, through appropriate intervention, suggest the
proper manner in which questions should be asked and the answers

furnished.   A district court's creativity in this respect is

unrestricted, although it cannot, of course, disregard the

commands of the Federal Rules of Civil Procedure or, as in this

case, substitute a "Bill of Particulars" for a party's relevant

discovery.   It can, however, always give counsel guidance and

direction as to the manner in which discovery should proceed.

          If, after an examination of a party's interrogatories,

the district court determines that the interrogatories are

inappropriate, the court can refuse to compel answers.    If a

party is unable to draft satisfactory interrogatories after a

reasonable time for discovery has concluded, the court can limit

further discovery.   If the court feels either party was acting in

bad faith, it can impose sanctions.   Certainly, if a party,

without justification, refuses to answer interrogatories in the

manner required by Federal Rule of Civil Procedure 33, the court

can compel answers under threat of sanctions.   Any or all of

these options could have been employed in this case.     Any and all

of these options would have received substantial deference upon

review.



                               VII

          We will reverse the summary judgment of the district

court dated March 9, 1994 and remand.   On remand, the district

court is directed to vacate the magistrate judge's order of

August 7, 1993 and to vacate its own order of November 3, 1993

which approved and modified a "Bill of Particulars."     The
district court is also directed to permit and schedule additional

appropriate and adequate discovery pursuant to the Federal Rules

of Civil Procedure so that further proceedings, including trial,

may be conducted consistent with the foregoing opinion.11




11
 . The district court's order of March 9, 1994 dismissed Counts
Four through Six without prejudice to Sempier proceeding on those
counts in state court. Those counts involved state law contract
and corporate law causes of action. The record before us is
accordingly silent as to those matters. Nor do we know if those
claims are proceeding in state court. It will be for the
district court on remand to ascertain and resolve the status of
those claims.
