                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-20-2005

Snik v. Verizon Wireless
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2762




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-2762
                                     ____________

                                  WALTER T. SNIK,

                                            Appellant

                                             v.

                                 VERIZON WIRELESS
                                    ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 03-cv-02976)
                     District Judge: Honorable R. Barclay Surrick
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 6, 2005

        Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                               (Filed December 20, 2005)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      After being turned down for a management position at Verizon Wireless

(“Verizon”) in favor of someone twenty years his junior, Walter Snik brought suit against

the company under the Age Discrimination in Employment Act of 1967 (ADEA), 29
U.S.C. §§ 621-634, and the Pennsylvania Human Relations Act (PHRA), 43 P A. C ONS.

S TAT. §§ 951-963. Following discovery, the United States District Court for the Eastern

District of Pennsylvania concluded that the company had offered a legitimate reason for

its decision and that Snik had presented no evidence of pretext. It granted summary

judgment in favor of Verizon. This timely appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the order of the District Court granting summary judgment. E.g., Hill v. City of

Scranton, 411 F.3d 118, 124 (3d Cir. 2005). We will affirm.

                                                I.

       As we write for the parties, we set forth only those facts necessary for our analysis.

When Snik applied for the management position with Verizon in March 2001, he was

approximately fifty years old. He had been employed by Verizon as a sales representative

at one of its retail stores for the last three years, and had nearly thirty years of prior

experience in the telecommunications field. His supervisors at Verizon rated his

performance as generally satisfactory, but noted that he “should pursue more roles in

leading the team.” Snik was usually, but not always, able to meet monthly sales quotas.

       The position for which Snik applied was “business sales manager.” The person

hired would be responsible for supervising a team of representatives selling wireless

services to businesses in a defined geographic region and ensuring that the team met

monthly sales quotas. The posting for the position stressed that applicants must have the



                                                2
ability to promote “growth” and “development” of the sales team and must have

experience in direct business sales within the telecommunications industry. (S.A. 75-76.)

       Snik’s application was reviewed for accuracy by his store manager and, pursuant

to company policy, forwarded to the director of the sales department, Jeff Suskind. Soon

after receiving the application, Suskind contacted Snik for a telephone interview. Their

conversation lasted for less than ten minutes. Suskind offered a brief description of the

qualities necessary for the position, emphasizing the need for “strong leadership” and the

ability to “rebuild and develop an entire sales team,” and asked about Snik’s prior

experience. Snik responded that, in his prior capacity as sales manager for a company

providing public telephone services for the City of New York, he had been responsible

for supervising several individuals and had participated in “a lot of high profile meetings

with upper management.” He did not offer other examples of his accomplishments or ask

Suskind about the responsibilities of the position. At the end of the call, Suskind

complimented Snik on his experience and advised him that he would be contacted shortly

to schedule an in-person interview.

       No such interview was scheduled, however. Suskind contacted the regional

supervisor of the retail store at which Snik worked. The supervisor informed Suskind that

Snik had received average performance reviews and that, because he had not “presented

himself as a leader,” he was not considered to be “next in line” to manage the store.

Suskind did not contact Snik’s immediate supervisor or seek other input. Rather, he



                                             3
decided not to offer the position to Snik based on the regional supervisor’s comments and

Snik’s attitude during the telephone conversation, which Suskind characterized as

unenthusiastic and “neutral.”

       Suskind interviewed two other applicants. One was a thirty-three-year-old

manager with Verizon; he was denied the position – also without an in-person interview –

because he lacked direct business sales experience. The other applicant, Robert Kozloski,

was a thirty-three-year-old employee of a competing wireless telecommunications

company. He had been involved in business sales for the last eight years and had worked

as a direct business sales manager – the same position that Verizon was attempting to fill

– for the last five years, with considerable success. Kozloski was also knowledgeable of

Verizon’s products and services. He was subsequently offered the job.

       Suskind did not inform Snik that he had not been selected, despite company policy

requiring internal candidates to be notified and given feedback when a position is filled;

Snik learned of the decision only through other employees. Soon thereafter, he sent a

message to the human resources department. He stated that he had been treated in an

“unprofessional manner” and alleged that he had not been considered a “viable candidate”

because of his age. He indicated that he was considering filing a formal complaint with

the state equal employment agency.

       An intra-company investigation was initiated by the human relations department,

which contacted Suskind to inquire about the decision to reject Snik. Suskind explained



                                             4
that Snik’s supervisors had described his “leadership qualities [as] not . . . up to par” and

that Snik had not “project[ed] the aggressiveness necessary for th[e] . . . position” during

the telephone interview. Suskind acknowledged that he had not notified Snik directly that

the position had been filled, and offered to do so. Suskind subsequently contacted Snik,

apologized for his oversight, and informed him that the position had required someone

who was “aggressive” and “dynamic.”

       Company officials concluded that no age discrimination had occurred. They

offered to provide Snik with leadership training to prepare him for a management

position. Snik refused.

       He instead filed a formal complaint of age discrimination with federal and state

equal employment agencies. The complaint was subsequently dismissed, after

investigation, based on a lack of “probable cause . . . to credit the allegations of unlawful

discrimination.”

                                              II.

       Claims of age discrimination proceed under the familiar framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). The burden initially rests on the plaintiff

to show that he or she was qualified for the position but was rejected in favor of a

younger individual. The employer must then offer a “legitimate, nondiscriminatory

reason” for the plaintiff’s rejection. The burden than shifts back to the plaintiff to point

to evidence that the articulated reason should be disbelieved or that an improper reason



                                              5
was “more likely than not a motivating or determinative cause” of the decision. Fuentes

v. Perskie, 32 F.3d 759, 763-65 (3d Cir. 1994) (citing St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 509-10 (1993); McDonnell Douglas, 411 U.S. at 802).1

       It is not disputed, for purposes of this appeal, that Snik satisfied his initial burden

and that the reasons given by Verizon for its hiring decision – Snik’s lack of “leadership

qualities” and Kozloski’s qualifications – are legitimate and nondiscriminatory. The sole

question is whether the evidence could support a finding of pretext. The District Court

held, and we agree, that it cannot.

       Nothing in the record plausibly suggests that the proffered reasons for Snik’s

rejection were fabricated or that Verizon was actually motivated by discriminatory

animus. See id.; see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003). The

company posting and Suskind’s initial description of the position of business sales

manager plainly indicate that leadership ability is essential to the job. Company officials

consistently cited an apparent lack of this quality as the basis for their decision to reject

Snik, and the same concern had previously been expressed by Snik’s supervisor, who had

suggested that Snik needed to “pursue more roles in leading the team.” There is no

reason to believe that this explanation represents a post hoc rationale for the company’s

decision. See Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331-32 (3d Cir. 1995)




       1
        The same analysis applies to claims under both the ADEA and the PHRA. See,
e.g., Glanzman v. Metro. Mgmt. Corp., 391 F.3d 506, 509 n.2 (3d Cir. 2004).

                                               6
(noting that courts should not question wisdom of employer’s reliance on a certain

explanation for action, but only whether explanation is honest) (citing Ezold v. Wolf,

Block, Schorr & Solis-Cohen, 983 F.2d 509, 528-33 (3d Cir. 1992)).

       Use of the terms “aggressive” and “dynamic” by company officials to describe the

appropriate person for the position does not betray a discriminatory intent. These words

are not necessarily synonymous with “youth,” and there is not any indication that they

were used in this way. The incoming business sales manager would be expected to

“rebuild” a team of representatives and ensure its success in achieving sales quotas. By

its very nature, the job required someone who was self-motivated and capable of inspiring

others: in other words, someone who was “aggressive” and “dynamic.” These terms do

not, in this context, imply age animus. Cf. Damon v. Fleming Supermarkets of Fla., Inc.,

196 F.3d 1354, 1362 (11th Cir. 1999) (holding that remark by supervisor that he wanted

to promote “younger aggressive men” suggested pretext in light of supervisor’s “pattern

of demoting and firing numerous older managers in favor of younger replacements”)

(emphasis in original).

       Nor do alleged inconsistencies in the hiring process reflect discrimination.

Suskind’s failure to notify Snik that the position had been filled was apparently the result

of a mistake, which was corrected soon after it was identified. The refusal to grant Snik

an in-person interview was consistent with, or at least not violative of, company policy.

And, contrary to Snik’s assertions, there is no evidence that Verizon officials failed to



                                              7
give full consideration to Snik’s credentials and prior experience. They simply found

them to be lacking in comparison to Kozloski’s. See Billet v. CIGNA Corp., 940 F.2d

812, 825 (3d Cir. 1991) (“The fact that an employee disagrees with an employer’s

evaluation of him does not prove pretext.”), overruled on other grounds by Hicks, 509

U.S. 502.

       Indeed, the record supports the conclusion that Kozloski was better qualified for

the position than Snik. Most of Snik’s prior supervisory experience came while employed

for a company providing municipal public telephone services; he had no experience in

supervising sales representatives in the wireless telecommunications industry. In

contrast, Kozloski had managed a direct business sales team for a competitor of Verizon

for five years. He had built the team “from scratch” and was regarded as the “top sales

manager.” Kozloski had demonstrated leadership qualities in the same position that

Verizon wished to fill, and the company could justifiably regard him as better qualified

than Snik, despite the latter’s years of experience in related fields. See Schaffner v.

Glencoe Park Dist., 256 F.3d 616, 622 (7th Cir. 2001) (upholding summary judgment for

employer when, although plaintiff had more overall experience in field, employer

reasonably believed that another person who “had worked in a nearly identical job to that

of the desired position” was better qualified); see also Brewer, 72 F.3d at 332 (“[W]e do

not sit as a super-personnel department that reexamines an entity’s business decisions.”)

(quoting McCoy v. WGN Cont’l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)).



                                              8
                                            III.

       We agree with the District Court that Snik failed to produce adequate evidence to

support his claim of age discrimination. Summary judgment was properly granted in

favor of Verizon.2

       Accordingly, we will affirm the order of the District Court.




       2
        We have considered and rejected Snik’s other arguments: that the District Court
abused its discretion in refusing to grant a continuance during summary judgment
proceedings, see F ED. R. C IV. P. 56(f), and in denying a motion for reconsideration based
on new evidence, see F ED. R. C IV. P. 59(e). Snik claimed that a continuance was
necessary to depose Suskind; however, as the District Court correctly noted, Snik had
“ample opportunity” (nearly six months) to subpoena and depose Suskind during pre-trial
discovery but chose not to do so, apparently because of the expense involved. See
Lunderstadt v. Colafella, 885 F.2d 66, 71-72 (3d Cir. 1989) (concluding that the district
court had not abused its discretion in determining that “more discovery by plaintiffs was
unwarranted primarily because they already had a substantial amount of time to conduct
such discovery and had failed to do so”). Snik concedes that the “new” evidence that he
wished to introduce on reconsideration was previously available but, for reasons that are
not adequately explained in the record or briefs, was simply not included with the
materials submitted in opposition to the motion for summary judgment. See Harsco
Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (“Where evidence is not newly
discovered, a party may not submit that evidence in support of a motion for
reconsideration.”). We see no error in the District Court’s denial of the request for a
continuance or motion for reconsideration.

                                             9
