                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-16-1995

Barber v CSX Distribution
Precedential or Non-Precedential:

Docket 94-3604




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3551

58102


109153       .
160204       .

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT



                      Nos. 94-3604 and 94-3653



                           SIMON A. BARBER
                                     Appellant No. 94-3604
                                  v.

                     CSX DISTRIBUTION SERVICES,
                 a UNIT OF CSX TRANSPORTATION, INC,;
                       CSX TRANSPORTATION, INC.
                                     Appellants No. 94-3653



           On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Civil No. 92-cv-01241)


                        Argued July 28, 1995

            Before: NYGAARD and McKEE, Circuit Judges and
                       FULLAM, District Judge2

                  (Opinion filed October 16, 1995)



THEODORE J. KUKUNAS, ESQUIRE (ARGUED)
419 Frick Building
437 Grant Street
Pittsburgh, PA 15219

       Attorney for Simon A. Barber

 2
  Honorable John P. Fullam, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                 1
FREDERICK W. BODE, III, ESQUIRE (ARGUED)
Dickie, McCamey & Chilcote
Two PPG Place, Suite 400
Pittsburgh, PA 15222-5402

     Attorney for CSX Distribution Services
     and CSX Transportation, Inc.

                        OPINION OF THE COURT

McKEE, Circuit Judge.

     Simon A. Barber appeals from the district court's entry of

judgment in favor of his employer, CSX Transportation, Inc.,

following a jury verdict in favor of Barber. Barber sued under

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

(1988) ("ADEA"), alleging discriminatory failure to promote and

retaliation for his assertion of his discrimination claim.

Although we agree that defendants3 were entitled to judgment as a

matter of law on Barber's retaliation claim, we hold that the

district court improperly overturned the jury's finding that

defendants' failure to promote Barber was in violation of the

ADEA.   Therefore, we will reverse in part and remand to the

district court for proceedings consistent with this opinion.


                           I.   BACKGROUND

     Simon Barber has been employed by CSX Transportation or its

predecessors for the last thirty-eight years.   During his tenure

with CSX, Barber has served in various capacities of increasing

responsibility and has received numerous merit or performance
3
       Although in substance Barber's claims appear to involve
only his employer as the sole defendant, hereinafter we refer to
"defendants" to be consistent with the district court's opinion,
the language in Barber's brief and the caption in this matter.

                                  2
salary increases and letters of commendation.   In February of

1987, Barber took the position of Chief Clerk essentially serving

as the office manager in defendants' Pittsburgh sales office. The

position of Territorial Account Executive became available in

that office in March of 1990, and was posted on the company wide

computer system.   The Territorial Account Executive was

responsible for the design, marketing and sale of CSX services.

     Eight applications were submitted for the Territorial

Account Executive position.   CSX's Human Resources Department

screened the applications and determined that only four of the

applicants met the minimum qualifications. Those four were:
          (1) Scott Delasandro, age 37 -- one year of
     railroad experience and no sales experience.

          (2) Kathy Ball, age 44 -- twenty years of
     railroad experience, fifteen of which were in
     accounting and five of which were in telemarketing.

          (3) Andrew Kelly, age 53 -- thirty-four years of
     railroad experience including his position as Sales
     Representative in the Pittsburgh sales office at the
     time he applied for the Territorial Account Executive
     position.

          (4) Plaintiff, Simon Barber, then age 52 --
     thirty-four years of railroad experience, including
     fourteen years of railroad sales experience and seven
     years of customer service experience.

     Robert Edmonds, Director of Sales in the Pittsburgh sales

office, was Barber's supervisor at the time, and was responsible

for selecting the Territorial Account Executive whom Edmonds

would also supervise.   Edmonds interviewed the two younger

applicants, Scott Delasandro and Kathy Ball, both of whom worked

in the Baltimore regional office.   Although he did not interview

Andrew Kelly, Edmonds informally discussed the position with


                                3
Kelly after Kelly submitted his application.      However, Kelly

withdrew his application after learning the salary.     Edmonds did

not interview or discuss the position with Barber.

     Even though Edmonds did not formally interview either Kelly

or Barber, Edmonds filled out an "Interview Report Form" for both

of those applicants as well as for the two applicants whom he did

interview.    That interview report, dated April 5, 1990, stated

that Barber was "qualified but [did] not possess the credentials

of Kathy Ball" who was selected.      Interestingly, Kathy Ball's

interview report was dated May 2, 1990, nearly a month after she

was actually selected.

     On May 23, 1990, Barber wrote a letter to defendants' Human

Resources Department questioning Edmonds' decision to award the

position to Ball whom Barber felt was less experienced and less

qualified than he was. Specifically, Barber's letter stated:
               I recently submitted a Job Application
          Form for the position of Territorial Account
          Executive (Job Vacancy No. 199) at
          Pittsburgh, PA.

                  Mr. Robert W. Edmonds, Jr., Director-
             Sales, Pittsburgh, has informed me the
             position has been awarded to Ms. Kathy Ball
             from Telemarketing at Baltimore. In view of
             my 21 years of experience in this field (14
             years direct sales and 7 years customer
             service), I am quite puzzled as to why the
             position was awarded to a less qualified
             individual.

                  I would greatly appreciate your response
             as to why I was not awarded this job.



App. at 363.    Shortly thereafter, Edmonds called Barber into his

office and expressed disappointment over that complaint.      On


                                  4
November 28, 1990, Barber received notification that, as of

December 5, 1990, his position as Chief Clerk was being

eliminated as a result of a company wide reduction in force.

Edmonds made the decision to eliminate Barber's position of Chief

Clerk after receiving a mandate from management to eliminate one

of three clerical positions in the Pittsburgh sales office.4

     On May 13, 1992, Barber filed this action in the United

States District Court for the Western District of Pennsylvania.

Barber's complaint alleged violations of the ADEA, gender

discrimination under the Civil Rights Act of 1964, 42 U.S.C.

§2000 et seq. (1988) ("Title VII"), and unlawful retaliation

under both the ADEA and Title VII.   The resulting trial was

bifurcated and issues of liability were severed from any

determination of damages.   Barber's age discrimination claims

were tried to a jury while his Title VII sex discrimination and

retaliation claims were tried to the court. The court found in

favor of CSX on Barber's Title VII claims and Barber does not

appeal that ruling. However, the jury found that CSX violated the

ADEA by failing to promote Barber because of age discrimination

and by retaliating against him when he voiced his displeasure at

not being promoted. Following trial, the court granted a defense

motion for judgment as a matter of law on both the age

discrimination and retaliation claims, notwithstanding the jury's




4
       The three clerical positions in the Pittsburgh sales
office consisted of two Secretary-Typists and one Chief Clerk.

                                5
special verdicts in favor of Barber.   Barber now appeals that

ruling.5

                           II. DISCUSSION

     We exercise plenary review of the district court's entry of

an order granting CSX's motion for judgment as a matter of law.

See Intermilo, Inc. v. I.P. Enterprises, Inc., 19 F.3d 890, 892

(3d Cir. 1994); Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258,

259 (3d Cir. 1987), cert. denied, 488 U.S. 1004 (1989) (motion

for judgment notwithstanding the verdict).   Therefore, we must

apply the same standard to this record as the district court. See

Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 789 F.2d 253 (3d

Cir. 1986).    We afford de novo review to the district court's

conclusions of law, but review factual findings to "determine

whether the evidence and justifiable inferences most favorable to

[Barber] afford any rational basis for the verdict."     Bhaya, 832

F.2d at 259.



     A.    AGE DISCRIMINATION CLAIM

     The ADEA prohibits age discrimination in employment against

an individual over age 40.    29 U.S.C. § 623 (a)(1).   Because the

prohibition against age discrimination contained in the ADEA is

similar in text, tone, and purpose to the prohibition against

discrimination contained in Title VII, courts routinely look to

5
      In their cross-appeal, defendants seek review of the
district court's conditional ruling denying their motion for a
new trial under Rule 59. Because we are affirming the district
court's judgment as a matter of law in favor of the defendants on
Barber's retaliation claim, we need not address the issues raised
in the cross appeal.


                                 6
law developed under Title VII to guide an inquiry under the ADEA.

See, e.g., Maxfield v. Sinclair Int'l, 766 F.2d 788 (3d Cir.

1985), cert. denied, 474 U.S. 1057 (1986).    Thus, we follow the

evidentiary framework first set forth by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

subsequently refined in Texas Dep't of Community Affairs v.

Burdine, 450 U.S. 248 (1981), and recently clarified in St.

Mary's Honor Center v. Hicks,     U.S.   , 113 S. Ct. 2742 (1993).

In addition, Barber's failure to promote claim is analogous to a

claim of failure to hire.   Thus, in order to make out a prima

facie case, Barber must show "1) that he belongs to the protected

class, 2) that he applied for and was qualified for the job, 3)

that despite his qualifications he was rejected, and 4) that the

employer either ultimately filled the position with someone

sufficiently younger to permit an inference of age discrimination

or continued to seek applicants from among those having

plaintiff's qualifications."    Fowle v. C & C Cola, 868 F.2d 59,

61 (3d Cir. 1989) (citations omitted).

     Once a plaintiff establishes a prima facie case the law

creates a presumption of unlawful discrimination, and the

defendant employer must articulate a "legitimate

nondiscriminatory explanation for the employer's adverse

employment action."   Seman v. Coplay Cement Co., 26 F.3d 428, 432

(3d Cir. 1994).   If the employer puts forth a legitimate business

explanation, "then the presumption of discriminatory intent

created by the employee's prima facie case is rebutted and the

presumption simply `drops out of the picture.'"    Id. (quoting


                                 7
Hicks,     U.S. at    , 113 S. Ct. at 2749).     The plaintiff then

has an opportunity to show that the reasons proffered by the

employer were a pretext for what, in reality, was a

discriminatory motivation.     See id.    Of course, the ultimate

burden to prove discrimination on the basis of age (burden of

persuasion) remains with the plaintiff at all times.       Hicks,

U.S. at    , 113 S. Ct. at 2749;       Burdine, 450 U.S. at 256; Bhaya,

832 F.2d at 260.

     The district court found that Barber established a prima

facie case from which an inference of age discrimination could be

drawn.    Barber v. CSX Distribution Servs., No. 92-1241, slip op.

at 2 (W.D. Pa. Oct. 6, 1994).    Defendants contest that ruling

arguing that Barber failed to establish the fourth element of a

prima facie case -- that the employer filled the position with

someone sufficiently younger to permit an inference of age

discrimination.    We agree with the district court's conclusion

that Barber established a prima facie case.       It is undisputed

that Barber was 52 years of age when he was rejected for the

position of Territorial Account Executive, and the successful

candidate was 44.    Defendants, without citation to supporting

authority, assert that this "eight year age difference is not

sufficient to establish the fourth element of a prima face case."

Brief of Appellees/Cross Appellants at 25.

     A plaintiff under the ADEA need not show that the successful

candidate was someone who was not in the protected class, i.e.

below age 40.     All that need be shown is that the beneficiary of

the alleged discrimination is "sufficiently younger" to permit an


                                   8
inference of age discrimination.     Maxfield, 766 F.2d at 792

("Courts that have addressed this issue squarely have universally

permitted a prima facie case to be shown through proof that the

favored person was younger than plaintiff.    All have held that

the replacement need not be younger than 40, the age at which

ADEA protection begins.") (collecting cases).     There is no

magical formula to measure a particular age gap and determine if

it is sufficiently wide to give rise to an inference of

discrimination, however, case law assists our inquiry.    In Healy

v. New York Life Ins. Co., 860 F.2d 1209 (3d Cir. 1988), we

concluded that nine years difference was sufficient to establish

a prima facie case of age discrimination even though the

favorably treated employee was also within the protected class,

id. at 1214.6   In Douglas v. Anderson, 656 F.2d 528 (9th Cir.

1981), the Court of Appeals for the Ninth Circuit held that five

years difference, in addition to substantial evidence of

plaintiff's qualifications for the position, was sufficient to

establish a prima facie case of age discrimination, id. at 533.7

     It is clear that here, the eight year difference between

Barber and the successful candidate, Kathy Ball, could support a

finding that Ball was "sufficiently younger" than Barber to

permit an inference of age discrimination.     That difference,


6
       In Healy, the employer ultimately prevailed because the
employee was unable to show that the employer's proffered reason
for the allegedly discriminatory treatment was a pretext for
illegal discrimination. Id. at 1220.
7
       In Douglas, as in Healy, the employer ultimately prevailed
because the nondiscriminatory justifications proffered for the
employer's actions were credible. Id. at 535.

                                 9
together with the undisputed existence of the remaining elements

of Barber's prima facie case, were clearly sufficient to shift

the burden of production to the defendants and require them to

articulate a legitimate, non-discriminatory motivation for their

failure to promote Barber.    Thus, the district court properly

ruled that Barber had established a prima facie case of age

discrimination.

     However, the district court erred in concluding that Barber

did not demonstrate that defendants' proffered business reasons

were pretextual.   Barber v. CSX Distribution Servs., No. 92-1241,

slip op. at 3-4 (W.D. Pa. Oct. 6, 1994).     The district court was

obligated to review the record before it and determine if the

evidence and the inferences that reasonably arose from it

provided "any rational basis for the verdict."     Bhaya, 832 F.2d

at 259 (emphasis added).     In Bhaya (a case very similar to this

one) we reversed the district court's entry of judgment for the

defendant employer and remanded the case for reinstatement of the

jury verdict finding age discrimination. Here, as in Bhaya
               [t]he issue on this appeal is
          straightforward. The jury has told us which
          explanation it believes, and we are bound by
          that finding if there is evidence of record
          to support it. Our only inquiry is whether,
          taking the record as a whole and resolving
          all factual disputes in favor of the
          plaintiffs, the evidence and justifiable
          inferences therefrom reasonably support the
          plaintiffs' explanation. We turn now to
          consider whether a reasonable juror could
          have concluded that the defendant
          intentionally discriminated against the
          plaintiffs because of their age.


Id. at 260.


                                  10
     The facts and reasonable inferences here clearly allow a

reasonable juror to conclude that Barber's age was a motivating

factor in his employer's refusal to promote him.    Defendants

maintain that Barber was not awarded the position because "Kathy

Ball was the best candidate" for the job, and they cite several

legitimate considerations that they argue factored into the

determination.   See Brief of Appellees/Cross Appellants at 11-12.

That argument overlooks the procedural posture here. The jury has

spoken.   Although the district court may have found the

legitimate explanations credible, the jury did not.    That

difference may well be nothing more than a different evaluation

of the credibility of the various witnesses at trial.

Nevertheless, this record does not allow the district judge to

disregard the jury's determination of credibility and substitute

it with his own.

     Edmonds testified that he did not formally interview either

of the two older candidates (Kelly or Barber) because he was

familiar with their work as he had supervised both of them for

nine months in the Pittsburgh sales office.    Barber notes that

Edmonds had an opportunity to evaluate Kelly's performance as a

salesman, but that he (Barber) was a Chief Clerk, and Edmonds had

no basis to evaluate his abilities in sales.    Barber also argued

that Kelly had an opportunity to informally discuss the position

with Edmonds and eventually expressed his disinterest in the

position after learning the proposed salary, whereas Barber was

given no opportunity to discuss the position with Edmonds.




                                11
     The district court, apparently discredited Barber's

arguments.  The court reasoned:
          It was undisputed, however, that . . .
          [Edmonds] was acquainted with plaintiff and
          the other older applicant because plaintiff
          and the other applicant had worked for the
          official in his department for a nine-month
          period preceding the time the employment
          decision was made. The applicant who was
          promoted, as well as the other younger
          applicant, on the other hand, were unknown to
          [Edmonds], and he explained his desire to
          interview them to learn more about their
          qualifications for the position.


Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3
(W.D. Pa. Oct. 6, 1994).

     The jury was entitled to credit Barber's arguments as more

credible than the contrary explanations of his employer.    This is

particularly true when we consider the "interview reports" that

Edmonds completed.   The district court's opinion inexplicably

overlooks the fact that Edmonds completed these reports for all

candidates even though he only interviewed two of them.    The

court also overlooks the fact that Barber's "interview report"
dated April 5, 1990 refers to Ball as the candidate who had been

selected for the job, but the jury could conclude from Ball's

interview report that she had not been interviewed when Edmonds

declared that she "had been" selected.   The district court was

not free to ignore this testimony nor the inferences that this

record supports.   "In crediting the defendants' explanation, the

district court effectively reversed the requirement that in

reviewing a jury verdict we are to draw all inferences in favor

of the prevailing party."   Bhaya, 832 F.2d at 262.   "Evaluation


                                12
of witness credibility is the exclusive function of the jury, and

where the only evidence of intent is oral testimony, a jury could

always choose to discredit it."     Id.   See also Dreyer v. Arco

Chem. Div. of Atl. Richfield, 801 F.2d 651, 655-56 (3d Cir.

1986), cert. denied, 480 U.S. 906 (1987).

     The district court also stated that Barber had failed to

persuade the court that defendants' explanation that it factored

Barber's unwillingness to move into its decision was pretext. The

district judge stated:
          In this regard, defendants offered
          uncontradicted evidence that the successful
          applicant was employed in the Baltimore area
          and would have to relocate in order to accept
          the position. Defendants also took the
          position that an employee's willingness to
          relocate is evidence of the employee's
          loyalty and commitment to the employer.


Barber v. CSX Distribution Servs., No. 92-1241, slip op. at 3
(W.D. Pa. Oct. 6, 1994).   Although this testimony persuaded the

court, it apparently did not persuade the jury.      This is

understandable because there was also testimony that the position
that Barber sought did not require relocation.      Accordingly, the

record clearly supports the jury's rejection of this explanation.

In fact, defendants concede that "Plaintiff properly states that

willingness to relocate was not a job qualification."      Brief for

Appellees/Cross Appellants at 28.

     Defendants maintain that the district court's entry of

judgment as a matter of law is consistent with our decision in

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).      In Fuentes, we

explained that a plaintiff satisfies the requisite quantum of


                                  13
proof to rebut a defendant's stated legitimate business reason

when the plaintiff produces evidence which:
          (1) casts sufficient doubt upon each of the
          legitimate reasons proffered by the defendant
          so that a factfinder could reasonably
          conclude that each reason was a fabrication;
          or

         (2) allows the factfinder to infer that
         discrimination was more likely than not a
         motivating or determinative cause of the
         adverse employment action.


Id. at 762 (emphasis added).   Defendants place particular, if not

exclusive, emphasis on the first of these criteria, arguing that

Barber's rebuttal evidence must go to each of their proffered

legitimate business reasons.   However, Fuentes also allows a

plaintiff to more generally submit evidence raising an inference

of discrimination. Id.
          Hicks teaches . . . that rejection of the
          employer's proffered nondiscriminatory reason
          will permit the trier of fact to infer the
          ultimate fact of intentional discrimination,
          so long as there is a finding of
          discrimination. In other words, `[t]he
          factfinder's disbelief of the reasons put
          forward by the [employer] . . . may, together
          with the elements of the [employee's] prima
          facie case, suffice to show intentional
          discrimination.'"


Seman, 26 F.3d at 433 (quoting Hicks,     U.S. at   , 113 S. Ct.

at 2749 n.4) (citation and footnote omitted) (brackets in

original).   Here, the record contained Defendants' inconsistent

interview techniques, the pre-dated and inaccurate "interview

report forms", and differing accounts of the relevance of Ball's

willingness to relocate, all of which could have factored into a



                                14
jury's decision to discredit defendants' explanation that she was

promoted over Barber because she was a better candidate than him.

Therefore, we will reverse and remand for reinstatement of the

jury's verdict in favor of Barber on his failure to promote

claim.



     B.   RETALIATION CLAIM

     Barber alleged that Edmonds eliminated the position of Chief

Clerk to retaliate for the letter of complaint that Barber wrote

to defendants' Human Resources Department, and that this

retaliation violated the ADEA. The ADEA states in part:
          (d) It shall be unlawful for an employer to
          discriminate against any of his employees or
          applicants for employment . . . because such
          individual, member or applicant for
          membership has opposed any practice made
          unlawful by this section, or because such
          individual, member or applicant for
          membership has made a charge, testified,
          assisted, or participated in any manner in an
          investigation, proceeding, or litigation
          under this chapter.


29 U.S.C. § 623(d).   The procedural framework in ADEA retaliation

cases also follows that of Title VII disparate treatment cases as

set forth in McDonnell Douglas, 411 U.S. at 802-05.    See Geary v.

Visitation of Blessed Virgin Mary, 7 F.3d 324, 329 n.4 (3d Cir.

1993).    Thus, to establish a prima facie case of retaliation, a

plaintiff must show: (1) that he engaged in protected conduct;

(2) that he was subject to an adverse employment action

subsequent to such activity; and (3) that a causal link exists

between the protected activity and the adverse action.     See Jalil



                                 15
v. Advel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied,

403 U.S. 1023 (1990).

     The district court concluded that Barber failed to establish

a prima facie case of retaliation because he did not demonstrate

"that he engaged in protected conduct."   Specifically, the court

concluded "that the letter written by plaintiff to the Department

of Human Resources was not a complaint opposing a practice made

unlawful by the ADEA, nor was it a charge against defendants

under Section 623 of the ADEA."    Barber v. CSX Distribution

Servs., No. 92-1241, slip op. at 5 (W.D. Pa. Oct. 6, 1994).     As

quoted above, Barber's letter to Human Resources complains about

unfair treatment in general and expresses his dissatisfaction

with the fact that someone else was awarded the position, but it

does not specifically complain about age discrimination.

Accordingly, the letter does not constitute the requisite

"protected conduct" for a prima facie case of retaliation.

     In reaching this conclusion, it is important to note that we

do not require a formal letter of complaint to an employer or the

EEOC as the only acceptable indicia of the requisite "protected

conduct" under the ADEA.   See, e.g., Sumner v. United States

Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (explaining that

acceptable forms of protected activity under Title VII's

analogous opposition clause include formal charges of

discrimination "as well as informal protests of discriminatory

employment practices, including making complaints to management,

writing critical letters to customers, protesting against

discrimination by industry or society in general, and expressing


                                  16
support of co-workers who have filed formal charges").     It is

neither necessary, nor appropriate to here attempt to define with

precision the type of conduct that will give rise to a

retaliation claim under the ADEA.     Our analysis requires only

that we analyze the message that Barber conveyed, and not the

medium of conveyance.

     Barber's letter is just too vague to support a finding that

his job was eliminated because he engaged in behavior that was

protected under the ADEA.    A person has engaged in "protected

conduct" when s/he "has opposed any practice made unlawful by . .

. section [623]."   29 U.S.C. § 623(d).   The practice made

unlawful by § 623 is "discriminat[ion] against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such an individual's age."

29 U.S.C. § 623(a).    Thus, the statute provides that a person has

engaged in "protected conduct" when s/he opposes discrimination

on the basis of age.    It is clear from Barber's letter that he

felt that he had been treated unfairly as he stated that "the

position was awarded to a less qualified individual."     However,

that letter does not explicitly or implicitly allege that age was

the reason for the alleged unfairness.     A general complaint of

unfair treatment does not translate into a charge of illegal age

discrimination.   The jury was not presented with any evidence to

support its conclusion that Barber's position was eliminated

because he engaged in protected activity.    Accordingly, the

district court properly granted the defendants' motion for

judgment as a matter of law on that portion of Barber's claim.


                                 17
                        III.   CONCLUSION

     For the reasons stated above, we will reverse the order of

judgment as a matter of law and remand the matter for

reinstatement of the jury verdict in favor of Barber relative to

the age discrimination claim but affirm the order of judgment as

a matter of law on the retaliation claim.




                                18
