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


1-12-2004

Brenner v. Harleysville Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4014




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"Brenner v. Harleysville Ins Co" (2004). 2004 Decisions. Paper 1099.
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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO: 02-4014
                                 __________________

                 JANET B. BRENNER; VIRGINIA A. BROADBELT,
                                Appellants

                                            v.

                      THE HARLEYSVILLE INSURANCE COS.
                       _________________________________

                    On Appeal From the United States District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. Civ. No. 01-cv-08)
                      District Judge: Honorable Jay C. Waldman
                          _____________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                OCTOBER 16, 2003

         Before: SLOVITER, ROTH AND STAPLETON, CIRCUIT JUDGES


                               (Filed: January 12, 2004)
                                 _________________

                                      OPINION
                                  _________________


ROTH, Circuit Judge

      Janet B. Brenner and Virginia A. Broadbelt appeal from the District Court’s order

granting summary judgment in favor of defendant The Harleysville Insurance Company

(“Harleysville” or the “company”) on their claims of age discrimination. For the reasons
that follow, we will affirm the District Court’s judgment.

       The underlying facts are set forth at length in the District Court’s Memorandum.

As a result, and because we write for the parties, we will only briefly describe the most

significant events leading to this action. In March 1999, Harleysville announced that it

was reorganizing its Policy Processing Department in connection with a change from a

manual to a computerized method for recording insurance policy information. As a

result, positions which had involved handwriting information on a paper record were

replaced with jobs requiring employees to input information directly into a computer.

Employees were advised that because of the new job requirements they would have to

apply for new jobs and that they would be evaluated based upon criteria contained in a

revised job description.

       At the time the reorganization was announced, Brenner and Broadbelt, aged 56 and

57, respectively, worked in Harleysville’s Coding Unit, one of three units in the Policy

Processing Department. They applied for the new positions and were interviewed. The

three interviewers unanimously agreed that Brenner and Broadbelt made a poor

impression and gave them the lowest interview scores out of all the applicants.1 In

addition, two interviewers knew that concerns about Brenner and Broadbelt’s ability to

work with others had been raised in the past. Of the fourteen total applicants, only



   1
    For example, Broadbelt refused to answer questions, both she and Brenner said that
they had not decided whether they wanted the job, and neither offered any ideas when
asked how company could increase productivity.

                                             2
Brenner and Broadbelt were not hired. Of the twelve applicants selected, eight were

younger than Brenner and Broadbelt; however, all but four of those offered jobs were

over age 40.

       Brenner and Broadbelt filed this action in the District Court on January 2, 2001,

alleging age discrimination and retaliation in violation the Age Discrimination in

Employment Act (“AEDA”), the Pennsylvania Human Relations Act (“PHRA”), and the

Employee Retirement Income Security Act (“ERISA”). Harleysville moved for summary

judgment. By memorandum and order entered October 1, 2002, the District Court

granted the motion for summary judgment. The District Court concluded that while

Brenner and Broadbelt were able to establish a prima facie case of discrimination, they

nevertheless failed to satisfy the burden of establishing that Harleysville’s proffered

reasons for not hiring them for new positions were pretextual. This appeal followed.2

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

review over an order granting summary judgment. See Publ. Interest Research Group of

N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990). As is well

understood, summary judgment is granted when “no genuine issue [exists] as to any

material fact and [when] the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). We will view the facts in the light most favorable to the




   2
     Brenner and Broadbelt do not challenge the entry of summary judgment on their
retaliation and ERISA claims. See Appellant’s Brief at 1.

                                              3
nonmoving party and we will draw all inferences in that party’s favor. See Reitz v.

County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997).

       The District Court found that Brenner and Broadbelt successfully established a

prima facie case of age discrimination under the AEDA. We agree. Where, as here, the

plaintiff alleges unlawful discharge based on age, the prima facie case requires proof that

he or she (1) was a member of the protected class, i.e., 40 years old or older; (2) was

qualified to hold the position; (3) suffered an adverse employment decision; and (4) was

replaced by a sufficiently younger individual to create an inference of age discrimination.

See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995). As the

District Court correctly noted, Brenner and Broadbelt were over 40 years old, they were

not hired for positions for which they were qualified, and Harleysville filled some, but not

all, of the new positions with persons sufficiently younger than Brenner and Broadbelt.

       Under the well-established burden-shifting analysis of McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), once a plaintiff has established a prima facie case, the

burden switches to the defendant to provide a legitimate non-discriminatory justification

for the employment decision. If the defendant provides such a justification, then the

burden switches back to the plaintiff to show by a preponderance of the evidence that the

proffered justification is in fact a pretext for discrimination. See Fuentes v. Perskie, 32

F.3d 759, 763 (3d Cir. 1994).

       In this case, Harleysville claims that it did not hire Brenner and Broadbelt because



                                              4
they lacked certain qualities – teamwork, cooperation, and enthusiasm – that were

important in the new positions. This determination was based on the negative attitude

Brenner and Broadbelt displayed during their interviews, combined with their history of

uncooperative behavior. Brenner and Broadbelt allege, however, that the District Court

erred in granting Harleysville’s motion for summary judgment because they had produced

sufficient evidence to establish that Harleysville’s non-discriminatory reasons for not

hiring them were pretextual. To show pretext, Brenner and Broadbelt must point to some

direct or circumstantial evidence from which a reasonable factfinder could either (1)

disbelieve the Harleysville’s articulated legitimate justification, or (2) believe that an

invidious discriminatory reason was more likely than not a motivating factor or

determinative cause of Harleysville’s decision not to hire them. See Simpson v. Kay

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

       In support of their claim, Brenner and Broadbelt argue that Harleysville abandoned

the traditional objective performance measures under which Brenner and Broadbelt’s

proficiency had been rated. However, the criteria used to rate Brenner and Broadbelt’s

proficiency in manually entering information – error percentage (quality) and lines per

day (quantity) – were not identified by Harleysville as a basis for its hiring decisions.

Instead, teamwork, cooperation, and enthusiasm were emphasized in connection with the

reorganization and the hiring process. See Ezold, v. Wolf, Block, Schorr and Solis-

Cohen, 983 F.2d 509 (3d Cir. 1993) (pretext turns on the qualifications and criteria



                                               5
identified by the employer, not the categories the plaintiff considers important).

Moreover, the fact that two of the three interviewers had pre-existing reservations about

hiring Brenner and Broadbelt based on their history of uncooperative behavior does not

contradict Harleysville’s reasons for not hiring them. Rather, it confirms that the decision

not to hire Brenner and Broadbelt was based on what the District Court aptly

characterized as a “history of antipathy toward supervisors and co-workers in an

environment where greater teamwork and cooperation were to be emphasized.” In

addition, because the relevant inquiry is whether discriminatory animus motivated the

employer, see Fuentes, 32 F.3d at 765, Brenner and Broadbelt’s citation to what they

believed were positive aspects of the interviews is irrelevant. Similarly misplaced is

Brenner and Broadbelt’s reliance on Harleysville’s decision to hire a 40 year old applicant

who they claim performed poorly at the interviews and who had a “demonstrably poorer

objective performance history.” Unlike Brenner and Broadbelt, the 40 year old applicant

did not generate unanimously negative reactions in the interviewers and thus the decision

to hire her is inapposite to Brenner and Broadbelt’s case. We have considered Brenner

and Broadbelt’s remaining arguments and we find them without merit and in need of no

discussion.

       In sum, after careful consideration of the record and the parties’ contentions, we

agree with the District Court that Brenner and Broadbelt have failed to show that

Harleysville’s proffered reasons for the dismissal were pretextual. Accordingly, we will



                                              6
affirm the District Court’s entry of summary judgment in favor of Harleysville.




                                                  /s/ Jane R. Roth
                                                Circuit Judge
