                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-17-2006

Salkovitz v. Pioneer Elec USA Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3709




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-3709


                               MURRAY SALKOVITZ,
                                           Appellant

                                           v.

                       PIONEER ELECTRONICS (USA) INC.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                             D.C. Civil No. 04-cv-00344
           District Judge: The Honorable Garrett E. Brown, Jr., Chief Judge


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2006


          Before: BARRY, VAN ANTWERPEN and SILER,* Circuit Judges


                             (Opinion Filed: July 17, 2006)


                                       OPINION




   *
     The Honorable Eugene E. Siler, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
BARRY, Circuit Judge

       Murray Salkovitz sued his former employer, Pioneer Electronics (USA) Inc.

(“Pioneer”), alleging that his termination constituted age discrimination, in violation of

the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. §§ 10:5-1 to -42. The

District Court granted summary judgment to Pioneer, holding that Salkovitz had not

produced evidence from which a rational factfinder could conclude that Pioneer’s

decision to terminate him was motivated by bias. We fully agree with the District Court’s

well-reasoned analysis and will affirm.

                                             I.

       In 1990, Salkovitz began working as Regional Sales Manager for the Home

Entertainment Company (“HEC”), a business division of Pioneer. In 1999, when he was

fifty-four, he was promoted to be one of five Regional Directors (a position subsequently

renamed to “Zone Director”) within HEC. He was responsible for managing all of HEC’s

sales in Zone Five, the Midatlantic. He initially reported to Peter Brown; in December

2001, Frank Kendzora was named Vice President of Field Sales and Salkovitz began

reporting to him. In July 2001, Tsutomu Haga was named President of HEC.

       During 2002, Kendzora and Haga formulated a reorganization plan to lower costs

and increase sales. The two East Coast Zones—Zones Four and Five—were considered

to be performing below expectations. The plan, as ultimately approved by Pioneer upper

management, combined Zones Four and Five into one zone, run out of the former Zone

Five offices in New Jersey. Peter Arnold, a thirty-five-year-old Key Account Manager (a

                                             2
position beneath Zone Director but with comparable types of responsibilities), moved

from Colorado to New Jersey to become the new Zone Director. Salkovitz, however, was

terminated on March 31, 2003. Pioneer allowed him to remain as a consultant until

October 1, 2003. He received full salary and benefits and was expected to come to work

Mondays and Thursdays to assist Arnold with any transition issues, but was otherwise

allowed to use his time for personal matters.

       In the two fiscal years preceding the reorganization, Salkovitz had been the worst-

performing of the five Zone Directors. Pioneer’s annual evaluations grade employees on

a five-point scale: Unacceptable, Meets Some Expectations, Meets Expectations, Exceeds

Some Expectations, and Exceeds Expectations. Salkovitz received a Meets Some

Expectations in 2001 and a Meets Expectations in 2002. In Salkovitz’s 2001 evaluation,

Brown wrote, “Murray’s performance in [a] critical area is sub-standard. . . . Murray

demonstrates a poor comprehension of the directions for distribution management,

negotiation practices, and program development. . . . [His] reports lack depth and do not

indicate any analytical thinking. . . . Murray’s general practices are to constrain his people

when they get astray instead of educating them and encouraging their initiative. . . .

Murray has sometimes made errors in judgment that could have been avoided if he had

relied on his past experience. . . . [He] hampers group productivity. . . . His decisions are

often flawed and his problem solving skills are severely lacking.” His 2002 evaluation

was less committal, in large part because Kendzora had not been in the position long

enough to evaluate all of Salkovitz’s performance in detail. Kendzora wrote, “Murray’s

                                                3
weekly reports are on time but sometimes lack content. . . . [H]e has demonstrated a basic

understanding of the position of Zone Director [but] does need to strengthen his product

and technical knowledge.”

        Arnold, on the other hand, achieved an Exceeds Some Expectations in 2001 and an

Exceeds Expectations in 2002. His 2001 evaluation said, “He has done an excellent job

covering his territory . . . . Peter has outstanding prospecting and qualifying skills and

shows the persistence and tenacity needed to get results. . . . Customers know what to

expect from Peter and can count on him to meet his commitments and deliver on his

promises. . . . He asks insightful questions to uncover all customer needs . . . . Peter

actively promotes a productive working environment within the sales team. . . . Peter

provides invaluable feedback to his manager on a regular basis with his keen insights and

valuable suggestions.” In 2002, his manager wrote, “Peter has proven to be an extremely

valuable asset to Pioneer . . . an exemplary employee [who] raises my level of expectation

when I think of an effective sales manager.”

        Salkovitz was unconvinced that Arnold’s promotion was driven by merit. Instead,

he saw age discrimination at work. In December 2002, Salkovitz had forwarded to Haga

an email with a picture of Pioneer employees standing in front of a sign reading “Haga’s

Used Cars.” Salkovitz’s email read, “Mr. Haga, Thought you may want to see what kind

of impression you are making after a short time as our leader. Enjoy!!!!!!” Haga’s reply

read:

        Thanks for sending a nice picture, however, I prefer “HAD” = Haga’s

                                               4
       Antique Division You can be a founding member, which means you are
       enough age, and enough to be called “Human Antique.” Hope you have []
       good sales in December, too.

Haga, who is approximately Salkovitz’s age, intended the email as a joke, and Salkovitz

was not offended by it at the time. Haga and Kendzora remarked on several occasions

that they expected that Salkovitz would retire after he left Pioneer. A slide show

describing the reorganization placed the word “retire” next to his name. Finally,

Salkovitz was asked to help familiarize Arnold with the position of Zone Director;

Arnold’s first evaluation in his new role was a “Meets Expectations.”

       On December 8, 2003, Salkovitz sued Pioneer in the Superior Court of New

Jersey, Law Division. His complaint alleged a single cause of action: that his termination

had been on account of his age, in violation of NJLAD. On January 27, 2004, Pioneer

removed the case to the United States District Court for the District of New Jersey by

invoking 28 U.S.C. §§ 1441(a) and 1446. Exactly one year later, on January 27, 2005,

Pioneer filed a motion for summary judgment. The District Court granted Pioneer’s

motion in a memorandum opinion filed on July 12, 2005. This timely appeal followed.

                                             II.

       The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate

jurisdiction under 28 U.S.C. § 1291. We review a District Court’s grant of summary

judgment de novo. Fakete v. Aetna, Inc., 308 F.3d 335, 337 (3d Cir. 2002). Summary

judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

                                              5
as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. Proc. 56(c). We must draw all reasonable inferences from the

underlying facts in the light most favorable to the non-moving party. See Bailey v.

United Airlines, 279 F.3d 194, 198 (3d Cir. 2002). “A factual dispute is material if it

bears on an essential element of the plaintiff's claim, and is genuine if a reasonable jury

could find in favor of the nonmoving party.” Fakete, 308 F.3d at 337.

                                              III.

       In deciding cases under the NJLAD, New Jersey courts generally look to federal

law interpreting Title VII of the Civil Rights Act of 1964 and the Age Discrimination in

Employment Act. Bergen Commercial Bank v. Sisler, 723 A.2d 944, 949-50, 157 N.J.

188 (1999). An employee can defeat a motion for summary judgment by presenting

either sufficient direct evidence or sufficient indirect evidence of discrimination. Monaco

v. Am. Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004). We discuss these possibilities

in turn.

       Direct evidence of discrimination is assessed using a two-step burden-shifting test

drawn from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); see Bergen Commercial

Bank, 723 A.2d at 954. First, the plaintiff must present evidence “which if believed,

proves . . . without inference or presumption . . . that decisionmakers placed substantial

negative reliance on an illegitimate criterion . . . in deciding to terminate his or her

employment.” Bergen Commercial Bank, 723 A.2d at 954 (internal quotation marks and

citations omitted.) That is, Salkovitz must show “a direct causal connection” between his

                                               6
termination and an alleged animus towards older employees. Id. If the employee satisfies

this “rigorous” standard, the burden shifts to the employer to show that it would have

made the “same decision even in the absence of the impermissible consideration.” Id.

       Salkovitz did not present such evidence. At most, the statements allegedly made

by Kendzora and Haga would show that they were aware of Salkovitz’s age and that they

expected him to retire after the end of his six-month consultancy. Unlike the plaintiff in

Fakete, who was told by his superior that the company was “looking for younger single

people,” id. at 336, Salkovitz has not presented evidence that Pioneer’s employment

decisions were at all connected to any beliefs about his age. Salkovitz also cites

McDevitt v. Bill Good Builders, Inc., 816 A.2d 164, 175 N.J. 519 (2003), to argue that he

presented “proofs of sufficient quality . . . provided through circumstantial evidence of

conduct or statements by persons involved in the decisionmaking process that may be

viewed as directly reflecting that alleged discriminatory attitude.” Id. at 169 (internal

quotation marks omitted). There, however, the alleged statement was a nod indicating

agreement with an explanation that the plaintiff had been fired because he was “too old

for the job.” Id. at 167. What was “circumstantial” was only the proof that the statement

had been made—the statement itself, if made, directly showed the necessary

discrimination “without inference or presumption.” Here, however, even though we must

take as true Salkovitz’s claims about Haga’s and Kendzora’s statements, we would need

to make further inferential leaps to find discriminatory motives.

       Indirect evidence of discrimination is assessed using the three-step test articulated

                                              7
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see

Monaco, 359 F.3d at 300. First, the plaintiff must present sufficient evidence to make out

a prima facie case of discrimination. Id. It is undisputed for purposes of this appeal that

Salkovitz did so; he was passed over as a potential Zone Director for the newly combined

zone in favor of a substantially younger employee, as a result of which his employment

was terminated. If the plaintiff presents such evidence, the burden shifts to the employer

to set forth a legitimate nondiscriminatory reason for its actions. See Saint Mary's Honor

Center v. Hicks, 509 U.S. 502, 507 (1993) (holding that such reasons must be sufficient to

“support a finding that unlawful discrimination was not the cause of the employment

action”). It is also undisputed on appeal that Pioneer presented sufficient evidence to

meet its burden at the second step. The reorganization of the HEC zones was intended to

cut costs, and Arnold’s previous successes could quite legitimately justify Pioneer’s

selection of him as the new Zone Director.

       At the third step, the burden shifts back to the plaintiff to produce evidence

demonstrating that the employer’s proffered reason is pretextual. See Fuentes v. Perskie,

32 F.3d 759, 764 (“[T]he plaintiff must point to some evidence, direct or circumstantial,

from which a factfinder could reasonably either (1) disbelieve the employer's articulated

legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely

than not a motivating or determinative cause of the employer's action.”) Here again,

Salkovitz has not met his burden. Pioneer has made out a compelling case that Arnold

was better-qualified for the new position than Salkovitz, and Salkovitz points to no facts

                                             8
that would cast any significant doubt on that conclusion. Arnold had not previously been

a Zone Director, it is true, but every promotion gives the promoted employee new duties.

Similarly, Salkovitz’s six-month consultancy and assistance to Arnold do not suggest that

Arnold was less qualified, only that Arnold, new to the job and the area, could benefit

from being shown the ropes by a more experienced employee.

       Salkovitz also argues that the handful of documented remarks about his age and

retirement plans are circumstantial evidence that Pioneer’s stated reasons for his

termination were a pretext for age discrimination. This argument is unconvincing in light

of the strong evidence that he was less qualified than Arnold. Moreover, even taken

together, these remarks do not suggest hidden motivations. In the context of the email

Salkovitz had sent to Haga, the “human antique” comment was clearly a joke. Any

expectation Haga and Kendzora had that he would retire—an expectation admittedly

encouraged by his discussions with his colleagues of the house he was building in

Florida—has not been connected to his termination or to any discriminatory motive.

Their comments to him about his retirement plans reflect nothing more than a concern for

him after leaving Pioneer. No rational jury could conclude from these facts that Pioneer’s

stated reasons for terminating his employment were a pretext for age discrimination.

       For the reasons stated above, we will affirm the judgment of the District Court.




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