                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-1998

Simpson v. Kay Jewelers
Precedential or Non-Precedential:

Docket 97-3224




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Recommended Citation
"Simpson v. Kay Jewelers" (1998). 1998 Decisions. Paper 89.
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Filed April 24, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 97-3224

SANDRA L. SIMPSON
       Appellant

v.

KAY JEWELERS,
Division of Sterling, Inc.

On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 95-cv-00270J)

Submitted Under Third Circuit LAR 34.1(a)
January 22, 1998

Before: BECKER,* STAPLETON, Circuit Judges, and
POLLAK, District Judge.**

(Filed: April 24, 1998)

       KENNETH A. WISE, ESQUIRE
       126 Locust Street
       Harrisburg, PA 17108
       Attorney for Appellant
       Sandra L. Simpson



_________________________________________________________________

* Honorable Edward R. Becker, United States Circuit Judge for the
Third Circuit, assumed Chief Judge status on February 1, 1998.

** Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
        MARTIN J. SAUNDERS, ESQUIRE
        Jackson, Lewis, Schnitzler &
         Krupman
        One PPG Place, 28th Floor
        Pittsburgh, PA 15222
         Attorney for Appellee Kay Jewelers

OPINION OF THE COURT

BECKER, Chief Circuit Judge.

This is an appeal by Sandra Simpson from the grant of
summary judgment for defendant Kay Jewelers in a suit
alleging age discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C.A.
SS 621-34 (1985 & Supp. 1997), and the Pennsylvania
Human Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43,
SS 951-63 (1991 & Supp. 1997).1 Simpson contends that
_________________________________________________________________

1. In relevant part, the ADEA provides that

        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.

29 U.S.C. S 623(a). In relevant part, the PHRA provides that

        It shall be an unlawful discriminatory practice . . . [f]or any
        employer because of the . . . age . . . of any individual or
        independent contractor, to refuse to hire or employ or contract
with,
        or to bar or to discharge from employment such individual or
        independent contractor, or to otherwise discriminate against such
        individual or independent contractor with respect to compensation,
        hire, tenure, terms, conditions or privileges of employment or
        contract, if the individual or independent contractor is the best
able
        and most competent to perform the services required.

Pa. Stat. Ann. tit. 43, S 955.

                                 2
evidence of the more favorable treatment of one allegedly
similarly situated younger employee is sufficient to permit
the inference that the employer's proffered reason for her
demotion is a pretext for discrimination. We reject this
contention and hold that a plaintiff does not create an issue
of fact merely by selectively choosing a single comparator
who was allegedly treated more favorably, while ignoring a
significant group of comparators who were treated equally
to her.

Simpson also contends that pretext can be inferred from
alleged inconsistencies between Kay Jewelers' proffered
reasons and its actions. We also reject this contention and,
following Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983
F.2d 509 (3d Cir. 1993) (pretext turns on the qualifications
and criteria identified by the employer, not the categories
the plaintiff considers important), conclude that Simpson
has not presented evidence sufficient to infer that Kay
Jewelers' proffered explanations were a pretext for
discrimination. We therefore affirm.

I.

Plaintiff, Sandra Simpson, was an employee of Kay
Jewelers in the DuBois Mall in Clearfield County,
Pennsylvania. Kay Jewelers was a chain of retail jewelry
stores, which was purchased by Sterling, Inc. in 1990.
Simpson was originally hired as a bookkeeper in May,
1973, and promoted to assistant manager in 1976. She was
promoted to store manager in 1979, a position she held
until her demotion in 1994.

From 1991 to 1994, Simpson's forte was her individual
jewelry sales. The overall store sales, however, were
considered deficient. Kay Jewelers set sales quotas for each
of its stores, taking into account such factors as economic
conditions, mall conditions, and competition. From
September 1991 to March 1994, Simpson's store satisfied
its monthly store sales quota eight out of thirty-one
months. During the fourteen months immediately prior to
her demotion, it met quota three times. The district
manager repeatedly indicated on Simpson's evaluations
that she needed to improve her quota performance and

                               3
increase store sales.2 The 1991, 1992, and 1994
evaluations identified increased sales as "major
developmental needs." The 1993 evaluation stated that
Simpson needed to "work to get 6/6 [quotas]" and "improve
[store sales] to min of 103% [of planned sales]." The district
manager repeatedly identified increased staff training, role
playing, and staff motivation as necessary to improve
overall sales. The "action plan for development" in each
evaluation from 1991 through 1994 listed the need for daily
staff training and role playing. At least twice, the district
manager told Simpson she would be demoted if she did not
meet the store sales quotas.

In March 1993, after Simpson failed to meet sales quotas
in any of the preceding six months, the district manager
created a Get It Done list ("GID"), which identified problem
areas and defined "action plans" to correct the problems. In
the GID, the district manager stated that Simpson's
performance in areas other than store sales were basically
up to standard, but that sales, the most important area,
was lacking. The district manager concluded that "lack of
training, direction, staffing, store moral[e], and aggressive
sales efforts" were the "key reason[s] for the substandard
sales production." Furthermore, the district manager
recommended that if "compliance is not obtain[ed] and
results achieved that [Kay Jewelers] should consider a
management change (demotion, not termination)." Id.

As part of the GID, Simpson was instructed to maintain
a sixty-day log of daily training sessions to be held with
each employee. Simpson testified at her deposition that
daily training was held, but not with each employee each
day. She also testified that some, but "not a lot" of role
playing was conducted. One of Simpson's employees
testified that she never received training through role
playing. Another employee testified that role playing was
not conducted on a daily basis. The store met its sales
quotas for both months during the sixty-day period.
However, from the end of the GID period through March
_________________________________________________________________

2. Simpson had two district managers during the period in question.
William Miller was district manager through August 1991. Mark Law was
district manager from August 1991 through March 1994.

                               4
1994, the store sales quotas were met only once out of the
ten months. In March 1994, the district manager
recommended that Simpson be demoted because of her
unacceptable store sales and continuous failure to train
and motivate staff to meet sales quotas. The
recommendation was approved by two Vice Presidents, and
Simpson was demoted to sales associate at the age of 57.
Simpson was replaced by Becky Bush, a 42 year old
woman.

Simpson filed a claim with the Equal Employment
Opportunity Commission ("EEOC") in May 1994, alleging
age discrimination. The EEOC determined there was no
reasonable cause to believe that there was unlawful
discrimination. Simpson then filed suit in the district court
for the Western District of Pennsylvania alleging
discrimination in violation of the ADEA and PHRA. After
discovery, Kay Jewelers moved for summary judgment. The
magistrate judge concluded that Simpson had failed to
make out a case of pretext, and recommended that
summary judgment be entered for Kay Jewelers. The
district judge adopted the magistrate judge's report and
granted Kay Jewelers' motion for summary judgment. This
timely appeal followed.

The district court exercised jurisdiction pursuant to 28
U.S.C. SS 1331, 1367. We exercise appellate jurisdiction
pursuant to 28 U.S.C. S 1291 and our review of the district
court's grant of summary judgment is plenary. Ersek v.
Township of Springfield, 102 F.3d 79, 83 (3d Cir. 1996).3
_________________________________________________________________

3. In reviewing a grant of summary judgment we

       (i) resolve conflicting evidence in favor of the nonmovant, (ii) do
not
       engage in credibility determinations, and (iii) draw all reasonable
       inferences in favor of the nonmovant. The movant has the burden of
       pointing out that evidence cognizable in a motion for summary
       judgment which the movant believes entitles it to summary
       judgment; the nonmovant must then respond by pointing to
       sufficient cognizable evidence to create material issues of fact
       concerning every element as to which the nonmoving party will bear
       the burden of proof at trial.

Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

                                5
II.

Simpson advances a pretext claim which is perforce
analyzed under the three steps of the McDonnell Douglas
line of cases, see McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817 (1973); Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S.Ct. 2742
(1993), that we have applied to ADEA cases, see e.g.,
Sempier v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir.
1995).4 We set forth the familiar McDonnell Douglas
framework in the margin.5 We will not discuss steps one
_________________________________________________________________

4. It has also been applied to PHRA cases. See Bernard v. Bethenergy
Mines, Inc., 837 F. Supp. 714, 715 (W.D. Pa. 1993), aff'd, 31 F.3d 1170
(3d Cir. 1994); Fairfield Township Volunteer Fire Co. v. Commonwealth,
609 A.2d 804, 805 (Pa. 1992).

5. Under the McDonnell Douglas line of cases, as applied to the ADEA
and the analogous provision of the PHRA, there are three steps in the
analysis of pretext discrimination cases. See McDonnell Douglas, 411
U.S. at 802-04, 93 S.Ct. at 1824-25. First, the plaintiff must establish a
prima facie case of discrimination. Hicks, 509 U.S. at 506, 113 S.Ct. at
2746-47. This is done if she shows that she (1) is a member of the
protected class, i.e. at least 40 years of age, 29 U.S.C. S 631(a), (2) is
qualified for the position, (3) suffered an adverse employment decision,
and (4) in the case of a demotion or discharge, was replaced by a
sufficiently younger person to create an inference of age discrimination,
Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir. 1987).
Second, upon such a showing by the plaintiff, the burden shifts to the
employer to produce evidence of a legitimate nondiscriminatory reason
for the adverse decision. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747.
Third, the plaintiff must then demonstrate that the employer's
articulated reason was not the actual reason, but rather a pretext for
discrimination. Id. at 507; 113 S.Ct. at 2747.

Simpson incorrectly defines the second step as shifting the burden to
the employer to show that its legitimate reason, alone, would have
induced the employment decision. Such a burden of showing that the
same decision would have been made absent discriminatory motives
applies in Price Waterhouse mixed motive cases, not McDonnell Douglas
pretext cases. See Price Waterhouse v. Hopkins , 490 U.S. 228, 276, 109
S.Ct. 1775, 1805 (1989) (O'Connor, J., concurring); Walden v. Georgia-
Pacific Corp., 126 F.3d 506, 512 (3d Cir. 1997), petition for cert. filed,
__
U.S.L.W. __ (U.S. Feb. 17, 1998) (No. 97-1350). See generally Mardell v.
Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n.6 (3d Cir. 1994)

                               6
and two of the framework because although the parties
contest the district court findings that Simpson established
a prima facie case of discrimination and that Kay Jewelers
proffered a legitimate nondiscriminatory reason for the
demotion, we assume arguendo that these steps have been
satisfied and proceed to step three of the analysis.6

To survive summary judgment when the employer has
articulated a legitimate nondiscriminatory reason for its
action, the 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.

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To
discredit the employer's articulated reason, the plaintiff
need not produce evidence that necessarily leads to the
conclusion that the employer acted for discriminatory
reasons, Sempier, 45 F.3d at 732, nor produce additional
evidence beyond her prima facie case, Fuentes, 32 F.3d at
764. The plaintiff must, however, point to "weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate
_________________________________________________________________

(summarizing Price Waterhouse evidentiary scheme), vacated, 514 U.S.
1034, 115 S.Ct. 1397 (1995), and modified in part, 65 F.3d 1072 (3d Cir.
1995). This case is clearly not a mixed motive case because Simpson has
pointed to no direct evidence that the "decisionmakers placed substantial
negative reliance on [age] in reaching their decision." Price Waterhouse,
490 U.S. at 277, 109 S.Ct. at 1805; Walden, 126 F.3d at 513. Rather,
Simpson points to evidence from which she claims pretext can be
inferred. Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir. 1994).

6. We note, however, that Simpson's challenge to Kay Jewelers' proffered
reason is misplaced to the extent she claims that the explanation is
invalid because there was no evidence that it was the actual reason for
her demotion. In pretext discrimination cases such as this, "[t]he
employer need not prove that the tendered reason actually motivated its
behavior, as throughout this burden-shifting paradigm the ultimate
burden of proving intentional discrimination always rests with the
plaintiff." Fuentes, 32 F.3d at 763 (emphasis added).

                               7
reasons [such] that a reasonable factfinder could rationally
find them `unworthy of credence' " and hence infer that the
proffered nondiscriminatory reason "did not actually
motivate" the employer's action. Id. at 764-765 (quoting
Ezold, 983 F.2d at 531).

To show that discrimination was more likely than not a
cause for the employer's action, the plaintiff must point to
evidence with sufficient probative force that a factfinder
could conclude by a preponderance of the evidence that age
was a motivating or determinative factor in the employment
decision. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1111 (3d Cir. 1997). For example, the plaintiff may show
that the employer has previously discriminated against her,
that the employer has discriminated against other persons
within the plaintiff's protected class or within another
protected class, or that the employer has treated more
favorably similarly situated persons not within the
protected class. Fuentes, 32 F.3d at 765.

Kay Jewelers asserts that Simpson was demoted because
she repeatedly failed to attain the store sales quotas and
failed to adequately train and motivate her staff to meet
quotas. Simpson does not dispute her failure to attain the
store sales quotas or to adequately train her staff, but does
make numerous arguments in an attempt to both discredit
these reasons and show that discrimination was more likely
than not the motivating cause of her demotion. Simpson
primarily relies on the fact that Dolly Field, a younger
manager, was not demoted or fired.7 Simpson argues that
she and Field were similarly situated because their stores
were the same size, they were supervised and evaluated by
the same district manager, and their sales quotas took into
account the economics of store location.8 Simpson submits
that her performance was superior to Field's because in
_________________________________________________________________

7. Dolly Field became a store manager in 1991. She was 26 years old at
the time Simpson was demoted.

8. Kay Jewelers argues that the two stores are not comparable, pointing
to differences in mall occupancy rates, local competition, and store
appearance. The district court assumed the stores were comparable. We
will not address the issue in light of the flaws in Simpson's arguments
discussed infra.

                               8
both 1993 and 1994 her evaluation scores for sales were
higher than Field's and both she and Field received an
overall rating of "good".9 Simpson then claims that despite
being evaluated superior to Field, Field was retained as
manager, while she was demoted; Field was praised, while
she was criticized; and Field received a higher score in
"store performance areas," a category Simpson argues is
directly related to store sales. According to Simpson, this
evidence of Field's more favorable treatment discredits Kay
Jewelers' proffered reasons and leads to the inference that
age discrimination was more likely than not the motivating
cause of her demotion. Simpson's reliance on Field is
misplaced for the reasons that follow.

III.

First, Simpson's reliance on Field is misplaced because
she cannot selectively choose a comparator. The plaintiff
has the burden of demonstrating that similarly situated
persons were treated differently. Burdine, 450 U.S. at 258,
101 S.Ct. at 1096. The employer's actions are considered in
light of its actions towards the allegedly more favored
group, in this case younger managers. Ezold 983 F.2d at
527; McDonnell Douglas, 411 U.S. at 804; 93 S.Ct. at 1825
(employer may take adverse action, but only if based on
criteria applied to members of all races). However, the mere
favorable treatment of one younger manager as compared
_________________________________________________________________

9. The evaluation forms indicate that Simpson's overall scores were 38.2
in 1993 and 35.8 in 1994, both equivalent to a "needs improvement"
rating; whereas Field's scores were 40.3 and 40.5, respectively, both
equivalent to a "good" rating. However, Simpson alleges that her overall
scores, based on the unmodified version of her 1993 evaluation and the
correction of an alleged error in the 1994 evaluation, were "40" in both
years, equivalent to a "good" rating. The original 1993 evaluation was
modified when the district manager reduced by two the points given to
Simpson in the "charge accounts" category. The district manager
contends that the change was made because he erroneously awarded
points for performance that was actually below the corporate standard.
Simpson alleges that the 1994 scoring for sales production was incorrect
because her 90% performance in store sales versus planned sales should
have warranted two points within the category and an additional 3.8
points overall.

                               9
to one older manager may not be sufficient to infer age
discrimination.

This is not to say that evidence of the more favorable
treatment of a single member of a non-protected group is
never relevant, but rather that the evidence can not be
viewed in a vacuum. See Ezold, 983 F.2d at 539 (viewing
record as a whole in finding insufficient evidence that
plaintiff was treated more severely than her male
associates); Waldron v. SL Indus., Inc., 56 F.3d 491, 496-97
(3d Cir. 1995) (considering evidence that one younger
manager was treated more favorably despite having
difficulties similar to plaintiff, where additional evidence
tended to discredit employer's proffered reason). A decision
adversely affecting an older employee does not become a
discriminatory decision merely because one younger
employee is treated differently. See Billet v. CIGNA Corp.,
940 F.2d 812, 827-28 (3d Cir. 1991) (finding plaintiff's
evidence of younger employees benefiting from company
reorganization insufficient to withstand directed verdict for
employer). The ultimate inquiry is whether the decision was
motivated by the affected employee's age. Id. at 827.

We find instructive the Seventh Circuit's decision in Bush
v. Commonwealth Edison Co. There, the court held that just
as an employer cannot insulate itself from claims of racial
discrimination by identifying a token black person whom it
treated with abnormal leniency, a black plaintiff cannot
establish racial discrimination by singling out one white
person who was treated more favorably when there were
other white persons who were treated less favorably than
other black persons. 990 F.2d 928, 931 (7th Cir. 1993).
"Such a pattern, in which blacks sometimes do better than
whites and sometimes do worse, being random with respect
to race, is not evidence of racial discrimination." Id. We
agree, because to hold otherwise would be to permit the
inference of discrimination anytime a single member of a
non-protected group was allegedly treated more favorably
than one member of the protected group, regardless of how
many other members of the non-protected group were
treated equally or less favorably.

Such an inference may be acceptable at the prima facie
stage of the analysis, see Burdine, 450 U.S. at 253, 101

                               10
S.Ct. at 1094 (recognizing that plaintiff's burden to
establish a prima facie case is not "onerous"), where the
inquiry is based on a few generalized factors, Hicks 509
U.S. at 516, 113 S.Ct. at 2752, but not necessarily at the
pretext stage where the factual inquiry into the alleged
discriminatory motives of the employer has risen to a new
level of specificity, see id.; Burdine, 450 U.S. at 255, 101
S.Ct. at 1095. We recognize, as did the Seventh Circuit in
Bush, that freedom from discrimination is "an individual
rather than a group entitlement." Bush, 990 F.2d at 931;
29 U.S.C. S 623(a)(1) (prohibiting age discrimination against
any "individual"); see also Connecticut v. Teal, 457 U.S.
440, 453-55, 102 S.Ct. 2525, 2534-35 (1982) (recognizing
that similar provision in Title VII protects individual
employee, rather than group). However, there still must be
evidence from which to infer discrimination apart from the
fact that some members of one group are sometimes treated
better and sometimes treated worse than members of
another group. Bush, 990 F.2d at 931. As stated by the
district court, the plaintiff can not "pick out one comparator
who was not demoted amid a sea of persons treated the
same as her" to establish a jury question. Simpson v. Kay
Jewelers, No. 95-270J, mem. order at 2 (W.D. Pa. Mar. 18,
1997) (footnote omitted).

Simpson relies solely on Field as a comparator in arguing
that evidence of less favorable treatment gives rise to an
inference of discrimination. She does not discuss any of the
thirty-five other managers who, between 1992 and 1994,
were demoted to sales associate positions because of their
store sales performance.10 Of the thirty-five, all were
younger than Simpson and thirty-four were under the age
of 40. Thus, even if Simpson was similarly situated to Field
but treated less favorably, see infra, Simpson's reliance on
a single member of the non-protected class is insufficient to
give rise to an inference of discrimination when Simpson
was treated the same as thirty-four members of the non-
_________________________________________________________________

10. Simpson incorrectly asserts that Kay Jewelers did not present any
evidence as to the reason for these thirty-five demotions. An affidavit
submitted by Kay Jewelers and Kay Jewelers' answers to Simpson's
interrogatories state that the thirty-five persons were demoted because of
problems with store sales. Simpson presents no evidence to the contrary.

                               11
protected class. Simply stated, to show that Kay Jewelers'
proffered reasons were pretext, Simpson can not pick and
choose a person she perceives is a valid comparator who
was allegedly treated more favorably, and completely ignore
a significant group of comparators who were treated equally
or less favorably than she.

IV.

Moreover, even if Field were a proper comparator,
Simpson's reliance on her would still be misplaced. In
determining whether similarly situated nonmembers of a
protected class were treated more favorably than a member
of the protected class, the focus is on the particular criteria
or qualifications identified by the employer as the reason
for the adverse action. Ezold, 983 F.2d at 528. The
employee's positive performance in another category is not
relevant, id., and neither is the employee's judgment as to
the importance of the stated criterion, Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988).
Furthermore, the court does not subjectively weigh factors
it considers important. Brewer v. Quaker State Oil Refining
Corp., 72 F.3d 326, 331 (3d Cir. 1995); see also Ezold, 983
F.2d at 528 (rejecting district court's subjective weighing of
plaintiff's abilities). Rather, the plaintiff must point to
evidence from which a factfinder could reasonably infer that
the plaintiff satisfied the criterion identified by the employer
or that the employer did not actually rely upon the stated
criterion. Fuentes, 32 F.3d at 767. Compare Brewer, 72
F.3d at 331-32 (finding that plaintiff's receipt of
performance bonus raised issue of fact as to whether
employer's performance-based explanation for discharging
plaintiff was pretext) with Ezold, 983 F.2d at 528-29
(finding that plaintiff's abilities in areas other than legal
analysis not relevant in determining if law firm's legal
analysis explanation for not promoting plaintiff was
pretext).

Simpson relies completely on evaluation scores in
arguing that, as compared to Field, her allegedly superior
performance but less favorable treatment discredits Kay
Jewelers' proffered reasons for her demotion. Kay Jewelers,
however, did not represent that it relied on evaluation

                               12
scores. Thus, Simpson's view of her performance, as
measured by evaluation scores, is not relevant. Instead,
focusing on the stated criterion -- sales quotas-- Field's
performance was superior to Simpson's, a result Simpson
does not dispute. Field met or surpassed her quotas six out
of the fourteen months preceding Simpson's demotion;
whereas Simpson only met her quotas three out of the
same fourteen months.11 Accordingly, Simpson's evaluation
evidence does not create a genuine issue of material fact.

V.

A.

Simpson's other arguments are also inadequate to
survive summary judgment. Simpson argues that the use of
sales quotas as the criterion is suspect. She claims that
using performance on sales quotas is inconsistent with
evaluation scoring, and points to the fact that despite Field
having satisfied her sales quota more often than Simpson,
Field's evaluation scores in all sales criteria were equal to
or below Simpson's. This, according to Simpson, counsels
that meeting sales quotas is not determinative of the
adequacy of a manager's performance. Implicit in this
argument is the contention that evaluation scores are more
indicative of performance. Whether sales quotas or
evaluation scores are a more appropriate measure of a
manager's performance is not for the court (or factfinder) to
decide. Healy, 860 F.2d at 1216 ("our inquiry . . . is not an
independent assessment of how we might evaluate[an]
employee"). "The question is not whether the employer
made the best, or even a sound, business decision; it is
_________________________________________________________________

11. We find no significance in Kay Jewelers' use of sales data from March
1994, the same month Simpson was demoted, in arguing that Field was
more qualified for the position. Simpson was demoted on or about March
29 and the decision to demote was made approximately one week earlier.
Thus, Simpson's March performance was not likely a factor in the
decision. Nonetheless, if we eliminate March 1994 from the equation,
Field still performed better than Simpson: Field met her quotas five out
of thirteen months, whereas Simpson met her quotas three out of
thirteen months.

                               13
whether the real reason is [discrimination]." Keller, 130
F.3d at 1109 (quoting Carson v. Bethlehem Steel Corp., 82
F.3d 157, 159 (7th Cir. 1996)) (alteration in original).

In addition, citing Bray v. Marriott Hotels, 110 F.3d 986
(3d Cir. 1997), Simpson claims that this alleged
inconsistency with evaluation scores raises an inference of
improper motives. In Bray, we found that various
discrepancies in how the employer evaluated the criteria
purportedly relied on to promote a white person over the
black plaintiff, was sufficient to raise questions of fact as to
the employer's motives. 110 F.3d at 993-97 (finding
discrepancies in the timing of employee evaluations, priority
given to factors in ranking candidates, and interpretation of
occupational grade levels, all of which were identified as
reasons for not promoting plaintiff). Bray, however, is
clearly distinguishable. In Bray the discrepancies were in
the use of criteria identified as determinative by the
employer, see id., whereas in this case Simpson is pointing
to discrepancies between a criterion identified by Kay
Jewelers (sales quotas) and a criterion asserted only by
Simpson (evaluation scores). As we have said, the focus is
on the criteria identified by the employer, not the criteria
only the plaintiff thinks are important. Healy, 860 F.2d at
1216.12
_________________________________________________________________

12. Simpson also asserts that the use of sales quotas is suspect because
some of the store managers purportedly demoted for failure to meet
quotas were actually "proficient" at meeting their quotas. Simpson points
to five managers who minimally met their store sales quotas fifty percent
of the time (ten out of twelve times, five out of seven times, four out of
six times, seven out of twelve times, and three out of six times).
Identifying five out of thirty-five persons who performed substantially
better than Simpson at meeting sales quotas does not reasonably lead to
the inference that Kay Jewelers did not rely on sales quotas in demoting
Simpson. The issue is "whether discriminatory animus motivated the
employer, not whether the employer [was] wise, shrewd, prudent, or
competent." Fuentes, 32 F.3d at 765. Thus, this alleged contradiction,
which may raise a question as to the wiseness of demoting those five
managers, does not give rise to the inference that Kay Jewelers demoted
Simpson for something other than the asserted nondiscriminatory
reason. To the contrary, the fact that younger managers with superior
performance were demoted can be viewed as evidence that age was
irrelevant.

                               14
B.

Simpson argues that the district manager's failure to
assist in training, and his interference with store
operations, gives rise to an inference that the district
manager was seeking to obtain a predetermined result --
her demotion -- for discriminatory reasons. Specifically,
Simpson claims that the district manager failed to conduct
two two-day training sessions as indicated on the GID,13
was not helpful when present at the store and on one
occasion verbally berated the employees such that their
morale was low, and failed to provide Simpson with the
discount codes necessary to offer merchandise discounts
greater than fifteen percent.

To the extent the inference can be made that the district
manager's behavior impacted the store's sales, the
evidence, without more, does not rise to such a level that a
factfinder could reasonably conclude by a preponderance of
the evidence that Kay Jewelers acted with a discriminatory
motive. Cf. Bonura v. Chase Manhattan Bank, N.A., 795
F.2d 276 (2d Cir. 1986) (finding sufficient evidence to
uphold jury verdict for plaintiff allegedly discharged for
substandard performance where evidence led to inference
that supervisor interfered with employee's efforts, as well as
that employee performed adequately and employer sought
to hire younger persons).

C.

Simpson argues that the failure to train explanation is
inconsistent with Kay Jewelers' actions. She asserts that if
training had actually been important then the district
manager would have conducted the training sessions
pursuant to the GID, and the home office would have sent
a trainer to the store. Furthermore, Simpson points to the
_________________________________________________________________

13. It is not clear that Simpson is accurately viewing the facts. Simpson
claims the district manager was to conduct training sessions, however
the GID only indicates that the district manager was to visit the store,
which may be interpreted as merely requiring the district manager to
follow-up on Simpson's efforts at training. Nonetheless, we resolve
conflicting evidence in favor of Simpson.

                                15
absence of any further counseling on training after her
successful completion of the GID. Viewing this evidence in
the light most favorable to Simpson,14 at most it leads to an
inference that Kay Jewelers did not consider it important to
assist Simpson in training her staff; it can not be inferred
that it was unimportant for Simpson to improve training on
her own accord. The record is replete with evidence,
contrary to Simpson's assertion that there is no evidence,
that Kay Jewelers considered staff training important. From
1991 to 1994, each of Simpson's evaluations indicated that
she needed to conduct more training. The GID specifically
required training to be conducted on a daily basis.
Accordingly, there is no basis from which to infer that the
failure to train explanation was "unworthy of credence."15
Fuentes, 32 F.3d at 765. Simpson makes three additional
arguments, which we find completely without merit.16
_________________________________________________________________

14. Simpson contends she successfully completed the GID, but Kay
Jewelers argues that she did not implement all of the instructions on the
list.

15. Simpson also claims that Kay Jewelers did not raise the failure to
train explanation to the EEOC. Kay Jewelers' position statement to the
EEOC states:

       As a result of the Charging Party's declining performance level and
       lack of responsive initiative . . . Charging Party was demoted from
       Store Manager to full-time sales employee . . . based upon Charging
       Party's failure to improve store sales. . . . [I]t was Charging
Party's
       responsibility to maintain . . . the sales of the entire store by
       training, motivating and managing the store staff.

Appendix at 731a. Even if this statement could be read as not
specifically indicating that Simpson's failure to train was a reason for
her
demotion, it does not make Kay Jewelers' subsequent raising of the
explanation pretextual. "[T]he mere fact that a defendant relies on a post
hoc [explanation] does not in and of itself create a factual dispute about
whether the [explanation was] pretextual." Healy, 860 F.2d at 1215. The
plaintiff must point to evidence that demonstrates there is reason to
disbelieve the explanation. Id. at 1215-16; see also McCoy v. WGN
Continental Broadcasting Co., 957 F.2d 368, 374 (7th Cir. 1992)
(declining to bind defendants to "positions they initially assert in state
administrative proceedings by rendering any different position a per se
pretext"). Simpson has not pointed to any such evidence.
_________________________________________________________________

16. Simpson asserts that (1) the district manager's downward revision of
her evaluation score reflects adversely on Kay Jewelers' veracity; (2) the
16
In sum, Simpson has not provided evidence sufficient to
discredit Kay Jewelers' proffered reasons or to permit the
inference that discrimination was more likely than not a
motivating or determinative cause for her demotion.
Accordingly, the district court's order granting summary
judgment to the defendant will be affirmed.
_________________________________________________________________

downward departure in evaluation scores between 1992 and 1993 is
suspicious; and (3) Kay Jewelers' claim of low store morale due to
Simpson's alleged "stealing" of associates' sales is a baseless
accusation.
As we discussed previously, the focus is on the"qualification[s] the
employer found lacking." Ezold, 983 F.2d at 528. Kay Jewelers found
that Simpson was deficient in meeting her store sales quotas and in
training her staff; Kay Jewelers did not rely on the evaluation scores or
the alleged stealing. Kay Jewelers indicated that store morale, in
general,
was one of several causes for the inadequate store sales. It was not, as
put forth by Simpson, an alternate reason for the demotion. Thus,
viewing these claims in the light most favorable to Simpson, the evidence
does not tend to discredit Kay Jewelers' articulated reasons.

                               17
POLLAK, District Judge, concurring.

I join the judgment and opinion of the court.

I write separately merely to call attention to a legal
question unresolved in this circuit that lurks unobtrusively
in a footnote of the court's opinion. The question is whether
this circuit's conventional summary of the elements of a
prima facie ADEA case of discriminatory discharge or
demotion is too narrowly stated insofar as it appears to
contemplate that the plaintiff must establish that she has
actually been replaced by a significantly younger person.
Because appellant Simpson was in fact replaced by a
significantly younger person, the question is of no moment
in the present litigation, and there is, therefore, no present
need for this court to resolve it. But the question is one
that is likely to surface in some future ADEA case. So
flagging the question now may serve to stimulate some
useful thinking by those interested in this field of law.

In footnote 5 the court outlines the "three steps in the
analysis of pretext discrimination cases" which must be
pursued "[u]nder the McDonnell Douglas line of cases, as
applied to the ADEA and the analogous provision of the
PHRA." The footnote explains that the first of the three
steps consists of "establish[ing] a prima facie case of
discrimination," which a plaintiff accomplishes"by showing
that she (1) is a member of the protected class, i.e. at least
40 years of age, 29 U.S.C. S631(a), (2) is qualified for the
position, (3) suffered an adverse employment decision, and
(4) in the case of a demotion or discharge, was replaced by
a sufficiently younger person to create an inference of age
discrimination." In support of this four-phase formulation
of a prima facie ADEA discharge or demotion case footnote
5 cites Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897
(3d Cir.), cert. dismissed, 483 U.S. 1052 (1987). The citation
is an apposite one: in Chipollini, an ADEA discharge case,
this court set forth essentially the same four-phase
formulation.

Chipollini, in turn, derived the four-phase formulation
from Maxfield v. Sinclair Intern., 766 F.2d 788, 793 (3d Cir.
1985), cert. denied, 474 U.S. 1057 (1986). In Maxfield this
court adapted to ADEA discharge cases the Supreme

                               18
Court's four-phase formulation in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), of a prima facie Title VII case
of racially discriminatory refusal to hire. Under McDonnell
Douglas the plaintiff must, as an initial matter, establish:
"(i) that he belongs to a racial minority; (ii) that he applied
and was qualified for a job for which the employer was
seeking applicants; (iii) that, despite his qualifications, he
was rejected; and (iv) that, after his rejection, the position
remained open and the employer continued to seek
applicants from persons of complainant's qualifications."
411 U.S. at 802. The Maxfield discussion of the elements of
a prima facie ADEA discharge case dealt with the question
whether the fourth phase required a showing that the
complainant had been replaced by a person younger than
forty -- i.e., a person not within the statutorily protected
class. This court rejected such a construction of the ADEA:
"we hold that an ADEA plaintiff may establish the fourth
element of the McDonnell Douglas test for a prima facie case
by showing that s/he was replaced by a person sufficiently
younger to permit an inference of age discrimination." 766
F.2d at 793.

What should be noted is that what this court was called
on to decide in Maxfield was whether replacement by a
significantly younger person within the protected class
could be regarded as tending to establish a prima facie case
of discharge contravening the ADEA, and this court's
answer was in the affirmative. What the Maxfield court was
not called on to decide -- or at least was not expressly
called on to decide -- was whether replacement by someone
significantly younger is an indispensable ingredient of a
prima facie ADEA discharge case, or whether, in a
circumstance in which the discharged plaintiff is not
replaced, other evidence can support a prima facie case. In
this connection it may be relevant that the Supreme Court
in McDonnell Douglas did not require, as the fourth phase
of a prima facie race-based-refusal-to-hire case, that the
plaintiff establish the hiring of a non-minority person to fill
the job for which the plaintiff was rejected; rather, the
Court required the more limited showing that "the position
remained open and the employer continued to seek
applicants from persons of complainant's qualifications."
411 U.S. at 802.

                               19
The language from McDonnell Douglas which has just
been quoted may signify that the Maxfield/Chipollini
formulation has (inadvertently) been crafted in overly
narrow terms. But that is not an obligatory inference. Race
discrimination and age discrimination are sufficiently
different phenomena so that the elements of Title VII's
regulatory regime may not be automatically transferable in
their entirety to the ADEA context. And in the ADEA
context many cases seem to reflect an expectation that an
ADEA discharge or demotion plaintiff will show
replacement, either achieved or anticipated. As the Second
Circuit put the matter in Haskell v. Kaman Corp., 714 F.2d
113, 119 n.1 (2d Cir. 1984): "Under the McDonnell Douglas
formula as applied in ADEA cases a plaintiff may make out
a prima facie case of age discrimination by showing that he
belongs to the protected group (40 to 70 years of age), that
he was sufficiently qualified to continue holding his
position, that he was discharged, and that his position
thereafter was held by someone younger than himself or
held open for such a person." On the other hand, the Fifth
Circuit has said, in Olitsky v. Spencer Gifts, 964 F.2d 1471,
1478 n.19 (5th Cir. 1992), cert. denied, 507 U.S. 909
(1993): "In McDonnell Douglas Corp. v. Green, 411 U.S. 799,
802. . . . the Supreme Court formulated an evidentiary
procedure for race discrimination cases which has been
adapted for ADEA cases. First the plaintiff must prove a
prima facie case of age discrimination, which consists of
evidence that the plaintiff: (1) was discharged; (2) was
qualified for the position; (3) was within the protected class
at the time of discharge; (4) was replaced by someone
outside the protected class; or (5) by someone younger; or
(6) show otherwise that his discharge was because of age."
(The Fifth Circuit's Olitsky formulation has its origins in
Elliot v. Group Medical & Surgical Service, 714 F.2d 556,
562 (5th Cir. 1983), cert. denied, 467 U.S. 1215 (1984), a
Fifth Circuit case referred to by this court in Maxfield. See
766 F.2d at 792.).

Determining whether the Fifth Circuit is closer to the
mark than the Second Circuit may be postponed for
another day, since resolution of the question one way or
another can have no bearing on the present appeal. As
noted above, Ms. Simpson was in fact replaced by a

                               20
significantly younger person, and, accordingly, she was able
to make out a prima facie case within the letter of Maxfield
and Chipollini. The weakness of Ms. Simpson's case came at
a later stage. As the opinion of the court makes plain, the
magistrate judge and the district court correctly concluded
that her case on the merits was too insubstantial to survive
Kay Jeweler's motion for summary judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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