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


8-31-2005

Bernhard v. Nexstar Broadcasting
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3157




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                       No: 04-3157

                              DAVID M. BERNHARD,
                                             Appellant

                                            v.

        NEXSTAR BROADCASTING GROUP, INC., D/B/A WJET-TV;
   NEXSTAR BROADCASTING OF ERIE, INC.; NEXSTAR BROADCASTING
        OF ERIE, L.L.C; NEXSTAR BROADCASTING OF ERIE, L.P.;
                  NEXSTAR COMMUNICATIONS, INC.

                        Appeal from the United States District Court
                       for the Western District of Pennsylvania
                               (Civ. No. 02-cv-00048-E)
                       District Court: Hon. Sean J. McLaughlin

                                    Argued: May 4, 2005

           Before: McKEE, VAN ANTWERPEN and WEIS, Circuit Judges

                           (Opinion Filed August 31, 2005)

Timothy D. McNair, Esq. (Argued)
Law Offices of Timothy D. McNair
821 State Street
Erie, PA 16501

      Counsel for Appellant

Martin J. Saunders, Esq. (Argued)
Jackson Lewis
One PPG Place, 28 th Floor
Pittsburgh, PA 15222

      Counsel for Appellees

                                             1
                                         OPINION

McKEE, Circuit Judge.


       David Bernhard appeals the District Court’s order granting summary judgment in

favor of Nexstar Broadcasting Group, Inc. and dismissing the Complaint Bernhard filed

under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq.

(2000) (the “ADEA”) and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq.

(1991). For the reasons that follow, we will affirm.

                                              I.

       Since we write primarily for the parties who are familiar with this dispute, we need

not repeat its factual or procedural background except insofar as may be helpful to our

brief discussion.

       Our review of the District Court’s Memorandum Order granting Nexstar’s Motion

for Summary Judgment is plenary. Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996).

Summary judgment may only be granted when “there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). The moving party may meet its burden on summary judgment by showing

that the nonmoving party’s evidence is insufficient to carry its burden of persuasion at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1996). The nonmoving party

creates a genuine issue of material fact if sufficient evidence is provided to allow a

                                              2
reasonable jury to find for that party at trial. Anderson v. Liberty Lobby, 477 U.S. 242,

248 (1986).

       Bernhard argues the following: 1) Nexstar’s justification for terminating him on

the grounds of his high salary was “newly manufactured”; 2) the District Court

erroneously adopted the “honest belief” rule; and 3) the District court erred in finding that

he did not present sufficient evidence to permit a reasonable factfinder to determine that

the proffered reason for terminating him was unworthy of credence.

       The order of proof under the ADEA mirrors that which is used in a discrimination

action under Title VII. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Rodriguez v. Taylor, 569 F.2d 1231, 1239 (1977). Thus, Bernhard must first establish a

prima facie case of age discrimination by proving: (1) he is within the protected age group

of 40-70; (2) he was the subject of an adverse employment action; (3) he was qualified for

the position in question; and (4) younger employees were treated more favorably. Proof

of a prima facie case raises an inference of discrimination, and that inference has the

force and effect of a rebuttable presumption. Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248 (1981).

       Nexstar does not dispute that Bernhard established a prima facie case of age

discrimination, and the District Court presumed that Bernhard had met this burden.

Accordingly, Nexstar had to articulate a legitimate, non-discriminatory reason for the

adverse employment action. Burdine, 450 U.S. at 254. The employer need not persuade



                                              3
the court that it was actually motivated by the proffered reasons, but need only raise a

factual issue as to whether it discriminated against the plaintiff. Id. at 245-55, 253-56.

       Nexstar stated that Bernhard was terminated because of his performance and high

wages. App. 46. Bernhard alleges that the District Court made its first error in the second

step of the ADEA burden-shifting analysis when it accepted high salary as one of

Nexstar’s legitimate, non-discriminatory justifications. Bernhard argues that Nexstar

articulated high salary as a reason for termination “for the first time” in its Motion for

Summary Judgment and accompanying Declaration of Christopher Huston, Bernhard’s

supervisor. He also claims that “high salary” does not constitute a legitimate non-

discriminatory reason for selecting personnel for termination in a reduction in force.

       Although it is somewhat unclear from the brief, Bernhard is apparently alleging

that Nexstar had first claimed that his termination was based on his performance, and that

a factfinder could look to Nexstar’s “shifting” explanations for the termination as

evidence of pretext. Bernhard also appears to allege that he did not have a full and fair

opportunity to demonstrate the pretextual nature of this justification. However, such

allegations would be somewhat misleading. Bernhard’s contention that Nexstar

introduced “high salary” for the first time in its Motion for Summary Judgment is belied

by the record. Huston clearly said in his August 29, 2003, deposition, that salary was a

consideration in Bernhard’s termination. App. 150-51, 159. In addition, Louis Gattozzi,

the General Manager of WJET-TV, stated in his deposition on August 29, 2003, that



                                              4
salaries were part of the decision-making process for termination. App. 104. Nexstar’s

Motion for Summary Judgment was filed on October 22, 2003. Consequently, Bernhard

had to have known for at least two months that his “high salary” was a factor in his

termination. Moreover, a newspaper reporter quoted Bernhard as saying that his salary

was a factor in his termination before Nexstar filed its response to the instant complaint.

App. 73-74, 88, 331. Thus, there was no element of unfair surprise, and Bernhard’s

attempt to find pretext in Nexstar’s “shifting” justifications is also unfounded.

       It is true that Nexstar did not rely upon a “high salary” justification before the

EEOC; rather, it focused on Bernhard’s job performance. Still, Nexstar’s Motion for

Summary Judgment does not change the reason for terminating him from the reason

previously articulated. Instead, it merely presents high salary as an additional reason for

the decision. App. 46. We do not agree that a reasonable jury could view this assertion as

“a shift in the defendants’ position,” as Bernhard claims.

       Bernhard next argues that “high salary” is not a legitimate, non-discriminatory

reason for terminating an employee. That argument is undermined by Hazen Paper Co. v.

Biggins, 507 U.S. 604 (1993). There, the Supreme Court noted that “an employee’s age

is analytically distinct from his years of service” and that employers therefore can take

one factor into account while ignoring the other. Id. at 611. Thus, the Court held that a

termination based on a factor related to length of service does not violate the ADEA

because it is not necessarily “age-based.” Id. Here, Bernhard’s salary is analytically



                                              5
distinct from his age, and therefore, could serve as a legitimate reason for terminating him

under the Hazen Paper analysis.

       Bernhard also avers that even if the District Court was correct in finding that

Nexstar met its burden of providing a legitimate, nondiscriminatory reason for

termination, the Court erred when it found that Bernhard did not meet his burden of

proving that Nexstar’s proffered reasons were actually a pretext for age discrimination.

       Bernhard contends that District Court erroneously adopted the so-called “honest

belief” rule set forth in Billups v. Methodist Hosp. Of Chicago, 922 F.2d 1300, 1304 (7 th

Cir. 1991), in this part of its analysis. That rule provides that the inquiry into the

genuineness of the employer’s proffered nondiscriminatory reason for terminating the

employee “is limited to whether the employer’s belief was honestly held.” Id. at 1304.

       In her discussion of Bernhard’s failure to introduce sufficient evidence to discredit

Nexstar’s justification for terminating Bernhard, the Magistrate Judge concluded that

Bernhard’s reliance on his own sworn declaration to contradict Nexstar’s view of his

work performance did not raise an issue of pretext. She reasoned that “[Bernhard’s] view

of his performance is not at issue; what matters is the perception of the decision maker . .

. . The fact that an employee disagrees with an employer’s evaluation of him does not

prove pretext.” App. 14 (citing Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991)).

The Magistrate Judge cited three additional cases, including Billups. Bernhard has seized

on this reference to Billups in a “string cite,” characterizing it as an erroneous “adoption”



                                               6
of the “honest belief” rule. However, this string cite was the only mention of the Billups

decision. The Magistrate Judge merely included it as support for her conclusion that

Bernhard’s own testimony as to his work performance is unavailing on the issue of

pretext. As we explain below, that position is well-supported by our own precedent. We

therefore disagree with his assertion that Magistrate Judge adopted the “honest belief”

rule in her recommendation.

       Lastly, Bernhard argues that the District Court erred when it found that he did not

present sufficient evidence to permit a reasonable factfinder to determine that Nexstar’s

articulated reasons for terminating his employment were a pretext for unlawful

discrimination. To discredit a legitimate reason proffered by an employer, an employee

must present evidence demonstrating “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

action that a reasonable factfinder could rationally find them ‘unworthy of credence.’”

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (citation omitted). Bernhard argues

that he presented such evidence.

       He first notes that he has denied Nexstar’s assertions that he failed to use a tripod,

did not appropriately use “nat sound,” and improperly edited stories. He then argues that

his own denial of Nexstar’s assertions should serve as evidence of pretext. As noted

above, the fact that an employee disagrees with an employer’s evaluation does not

generally prove pretext. Billet, 940 F.2d at 825. Bernhard points out that in a later case,



                                              7
Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995), we stated that

      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.

      In Sempier, we also ruled that where a plaintiff asserts not only that he/she has

performed well but never received any unfavorable criticism regarding performance, a

reasonable jury could conclude that an employer’s failure point out inadequacies raises

suspicions about any post hoc allegations of poor performance. Id.

      In the present case, though, Bernhard had at least some indication that he was not

satisfying the photojournalistic guidelines propounded by Huston. App. 145. Unlike

Sempier, where the employer failed to make specific allegations about the employee’s

poor performance, here, Nexstar had made specific allegations of problems with

Bernhard’s job performance. Thus, we are not persuaded by Bernhard’s argument that his

own allegations are sufficient evidence of pretext under Sempier to defeat Nexstar’s

Motion for Summary Judgment.

      Bernhard also attempts to argue that the Declaration of Phil Hayes, Bernhard’s

employer after he left WJET-TV, serves as evidence of pretext. Hayes describes

Bernhard’s technical skills as “impeccable” and calls Bernhard “a very strong news

photographer.” App. 223. The District Court thought Hayes’ Declaration was irrelevant.

We agree, as it is merely an opinion based primarily on Bernhard’s work performance at

                                            8
WICU-TV after he was terminated from his employment at WJET-TV. App. 15.

Bernhard argues that Hayes had known Bernhard since he arrived in the Erie market,

when Bernhard was employed at WJET-TV. App. 223. Yet Hayes’ assessment of

Bernhard’s skills is prefaced with the following statement: “In the time that I have

worked with Mr. Bernhard, I have observed his work and can make the following

statements: . . .” App. 223. Hayes’ observations are therefore based on Bernhard’s work

after WJET-TV. That is not at issue in this case. Similarly, the District Court was correct

in stating that the Declaration of Julie Eisenmann, a co-worker of Bernhard’s at WICU-

TV, was also irrelevant.

       Finally, Bernhard maintains that Nexstar’s proffered reasons for termination are

unworthy of credence because Nexstar’s reasons for terminating him were not grounded

in objective evidence of his shortcomings as a photojournalist. Nexstar specifically

alleged that Bernhard often used “jump cuts,” failed to check the black-white balance of

his camera, and failed to use a tripod where appropriate. App. 123. Bernhard points out

that Nexstar did not offer any footage to buttress these assertions. Unfortunately, Nexstar

does not index its videotapes by photojournalist, nor does it save tapes of poor quality.

Therefore, neither Nexstar nor Bernhard could produce objective evidence of the quality

of Bernhard’s work at WJET-TV. The absence of the objective proof is therefore of

little, if any, probative value. Nevertheless, Bernhard had the burden of proof. As

Nexstar points out, he did not provide any evidence of commendations, awards, or pay



                                             9
raises that could have rebutted Nexstar’s assertions about his abilities.

                                             III.

       For the foregoing reasons, we will affirm the order of the District Court granting

summary judgment in favor of Nexstar.




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