                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2000

DiFederico v Rolm Co.
Precedential or Non-Precedential:

Docket 96-1169




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Recommended Citation
"DiFederico v Rolm Co." (2000). 2000 Decisions. Paper 7.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/7


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Filed January 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1169

CHERI DiFEDERICO,
       Appellant

v.

ROLM COMPANY; SIEMENS ROLM COMMUNICATIONS,
INC. (formerly Rolm Company); INTERNATIONAL
BUSINESS MACHINES CORPORATION;
SIEMENS CORPORATION

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 94-cv-06901
(Honorable Ronald L. Buckwalter)

Argued April 26, 1999

Before: SCIRICA, ROTH and McKAY,* Circuit Judges

(Filed January 14, 2000)

PAUL B. BECH, ESQUIRE (ARGUED)
A. RICHARD FELDMAN, ESQUIRE
Bazelon Less & Feldman, P.C.
1515 Market Street - Suite 700
Philadelphia, PA 19102-1907

 Attorneys for Appellant



_________________________________________________________________

* The Honorable Monroe G. McKay, United States Circuit Judge for the
Tenth Judicial Circuit, sitting by designation.
       RICHARD M. SOLAZZO, ESQUIRE
        (ARGUED)
       Cummings & Lockwood
       Four Stamford Plaza
       P. O. Box 120
       Stamford, CT 06904-0120

       ROBERT A. NICHOLAS, ESQUIRE
       Reed, Smith, Shaw & McClay
       2500 One Liberty Place
       1650 Market Street
       Philadelphia, PA 19103-7301

        Attorneys for Appellees

OPINION OF THE COURT

McKAY, Circuit Judge.

Plaintiff-Appellant Cheri DiFederico appeals the decision
of the United States District Court for the Eastern District
of Pennsylvania denying her relief under S 510 of the
Employee Retirement Income Security Act [ERISA], 29
U.S.C. S 1140, a provision that makes it unlawful to
interfere with the attainment of rights or benefits associated
with an employee benefit plan.

In her complaint before the district court, Plaintiff alleged
that Defendant-Appellee Rolm Company1 terminated her
_________________________________________________________________

1. Plaintiff also included Defendant-Appellee Siemens Rolm
Communications, Inc., as a defendant in her complaint even though the
communications surrounding Plaintiff's termination were exchanged
exclusively between Plaintiff (through herself, her lawyer, and doctors)
and Defendant-Appellee Rolm Company. The record on appeal does not
establish the exact relationship between Rolm Company and Siemens
Rolm Communications, other than a disclosure of corporate affiliation in
Appellees' Brief indicating that Siemens Rolm Communications, Inc., was
"formerly Rolm Company," and an indication on the letterhead of
Plaintiff's termination notice in the record that Rolm Company was an
"IBM and Siemens Company." J.A. at JA117. The district court's
opinions in this case do not clarify why Siemens Rolm Communications
might be liable for interfering with Plaintiff's disability benefits, see

                                  2
employment to avoid obligations under its short- and long-
term sickness and disability plans. The district court
granted Defendant partial summary judgment, ruling that
the short-term plan was not a qualified plan under ERISA
and dismissing all claims arising out of that plan. See
DiFederico v. Rolm Co., No. CIV.A.94-CV-6901, 1995 WL
710561, at *2 (E.D. Pa. Nov. 30, 1995). The district court
then conducted a bench trial on the remaining issues
arising out of the long-term plan.

The testimony and evidence presented to the district
court indicate that Plaintiff worked as a sales engineer for
Defendant from 1983 to 1990, and as a field salesperson
from 1990 to November of 1991. Early in 1991, Plaintiff
began developing symptoms of chronic fatigue and chronic
colitis which began affecting her job performance until she
eventually took short-term sick leave once in July 1991 and
again from September 3, 1991, to November 18, 1991,
when her employment was terminated. The situation
surrounding her termination was, of course, the most hotly
contested evidentiary point of the trial. Plaintiff alleged that
the correspondence between herself, her doctor, her lawyer,
and Defendant and the circumstantial evidence
surrounding the exchange of communications lead only to
the conclusion that Defendant terminated her employment
in an attempt to save money and rid itself of costly long-
term disability benefits obligations. Defendant presented
evidence to the contrary, arguing that, far from ridding
itself of disability obligations, it attempted to accommodate
Plaintiff's developing medical condition until it became clear
that Plaintiff was not going to accept the accommodations
and return to work. In its review of Defendant's evidence,
the district court found it "clear . . . that at all times up
until November 18, 1991 defendant had an opinion from an
independent doctor that plaintiff could return to work with
restrictions." DiFederico v. Rolm Co., No. CIV.A.94-6901,
_________________________________________________________________

DiFederico v. Rolm Co., No. CIV.A.94-6901, 1996 WL 53808, at *1 (E.D.
Pa. Feb. 7, 1996); DiFederico v. Rolm Co., No. CIV.A.94-CV-6901, 1995
WL 710561, at *1 (E.D. Pa. Nov. 30, 1995), but the point appears to be
uncontested and insignificant in this appeal. For purposes of this
opinion, references to Defendant are meant to include both entities.

                                3
1996 WL 53808, at *5 (E.D. Pa. Feb. 7, 1996). The record,
according to the district court, showed that before
November 11, 1991, Defendant offered Plaintiff a new
position with the company--an office job as a sales
engineer not requiring travel and situated near restroom
facilities for those moments of acute colitis. The record also
showed that on November 11, Defendant informed Plaintiff
that failure to appear for work at the new position by
November 18, 1991, would be considered voluntary
resignation. The district court found that notwithstanding
Defendant's attempts to accommodate Plaintiff's condition
Plaintiff failed to report for work, and, as a result, her
employment was terminated on November 18, 1991. See id.
at *4.

At the close of the bench trial, the district court held that
while Plaintiff established a prima facie case of interference
she failed to prove that the legitimate nondiscriminatory
reason offered by her employer for her termination was
pretextual. See id. at *5. According to the district court, the
decision to terminate Plaintiff was not based on an intent to
withhold benefits, rather it "was based upon [P]laintiff's
failure to report for work even after [D]efendant made a
bona fide effort to accommodate her health problems." Id.
at *5 n.3.

In this appeal Plaintiff claims that the district court (1)
applied an erroneous legal standard to her showing of
pretext, (2) erred in requiring her to prove that her
employer's intent to interfere was the sole cause of her
termination, and (3) erred in finding that she had failed to
prove that her employer's reason was pretextual. We
exercise jurisdiction under 28 U.S.C. S 1291.

We begin by addressing the question of whether the
district court applied an erroneous legal standard to
Plaintiff's showing that Defendant's reasons for terminating
her were pretextual. We apply a plenary standard when
reviewing a district court's application of legal standards to
the facts. See FMC Corp. v. United States Dep't of
Commerce, 29 F.3d 833, 838 (3d Cir. 1994).

Section 510 of ERISA prohibits " `employers from
discharging or harassing their employees in order to keep

                               4
them from obtaining [employee] benefits.' " DeWitt v. Penn-
Del Directory Corp., 106 F.3d 514, 522 (3d Cir. 1997)
(quoting Haberern v. Kaupp Vascular Surgeons Ltd., 24 F.3d
1491, 1501 (3d Cir. 1994)). The legal standard in S 510
cases is very clear. To recover, a plaintiff must demonstrate
that the defendant had the " `specific intent' " to violate
S 510. Id. This requires the plaintiff to show that "the
employer made a conscious decision to interfere with the
employee's attainment of pension eligibility or additional
benefits." Id. at 523 (citing Gavalik v. Continental Can Co.,
812 F.2d 834, 860 (3d Cir. 1987)). The plaintiff may use
both direct and circumstantial evidence to establish specific
intent, but when the plaintiff offers no direct evidence that
a violation of S 510 has occurred, the court applies a
shifting burdens analysis, similar to that applied in Title VII
employment discrimination claims. See Gavalik, 812 F.2d
at 851-53 (applying the McDonnell Douglas, 411 U.S. 792,
802 (1973), shifting burdens mechanism). In this burden-
shifting analysis, the plaintiff must first establish a prima
facie case by showing: "(1) prohibited employer conduct (2)
taken for the purpose of interfering (3) with the attainment
of any right to which the employee may become entitled."
Id. at 852. If the plaintiff is successful in demonstrating her
prima facie case, the burden then shifts to the defendant-
employer, who must articulate a legitimate,
nondiscriminatory reason for the prohibited conduct. If the
employer carries its burden, the plaintiff then must
persuade the court by a preponderance of the evidence that
the employer's legitimate reason is pretextual. See Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-
53 (1981).

In the case at hand, the district court applied the shifting
burdens framework correctly. After Plaintiff established her
prima facie case, Defendant articulated a legitimate,
nondiscriminatory reason for its adverse employment
decision--explaining that it fired Plaintiff for failing to
return to work even after it had attempted to accommodate
her condition. After Defendant carried its burden, Plaintiff
was permitted to present evidence that Defendant's reason
was pretextual. Plaintiff produced circumstantial evidence
of Defendant's financial difficulties coinciding with her
dismissal, but the district court concluded that Plaintiff's

                               5
evidence was not enough to prove that Defendant's
legitimate reason was a pretext. See DiFederico, 1996 WL
53808, at *5. The court explained that to find that
Defendant had the specific intent to interfere with Plaintiff's
attainment of benefits, Plaintiff would have needed to prove
by a preponderance of the evidence that "the reasons
offered by defendant . . . [were] not credible." Id. Such
evidence would have then supported the inference that "the
employer was motivated by an unlawful reason or reasons."
Id. But the court concluded, "There [was] simply no
objective evidence from which [it could] find defendant's
explanation incredible." Id. It reviewed the "particularly . . .
truthful and sincere" testimony of Plaintiff's supervisor and
reported that "[t]here was not the slightest hint . . . that
any decision with respect to [P]laintiff's continued
employment was based upon a desire to save the
[D]efendant from paying [long-term disability] benefits." Id.

In reference to its conclusion, the court noted,
"Unfortunately for plaintiff, there is no `smoking gun[,'] the
lack of which is not unusual in cases of this nature." Id.
Plaintiff seizes upon this statement as evidence that the
court, while ostensibly stating the correct legal standard,
actually applied an erroneous legal standard that would
require her to present direct evidence of a smoking gun to
prove that her employer's reason was pretextual. See
Appellant's Reply Br. at 1. It seems to us, however, that the
court was simply explaining its application of the
circumstantial evidence standard. Cf. Gavalik, 812 F.2d at
852 ("In most cases . . . specific intent to discriminate will
not be demonstrated by `smoking gun' evidence. As a
result, the evidentiary burden in discrimination cases may
also be satisfied by the introduction of circumstantial
evidence." The court was merely commenting on an
unfortunate reality: Plaintiff could not present any direct
evidence of her employer's specific intent to interfere, and
the circumstantial evidence she presented in place of direct
evidence was not compelling. We cannot conclude that the
district court's comments in this regard amounted to the
application of an erroneous legal standard.

Alleging another error of law, Plaintiff claims that when
the district court required her to prove that Defendant's

                               6
proffered legitimate reason was pretextual, it actually
required her to prove that Defendant's discriminatory
motive was "the sole cause" of her termination. Appellant's
Amended Br. at 35. Plaintiff argues that the law only
requires her to prove that her employer's intent to interfere
" `contributed to' " or was " `a motivating factor in' " the
decision to terminate her employment. Id. at 35 (quoting
Humphreys v. Bellaire Corp., 966 F.2d 1037, 1043 (6th Cir.
1992)). Her argument seems to confuse several statements
of the legal standard applicable in S 510 cases.

While it is true we have stated that "a plaintiff need not
prove that `the sole reason for his [or her] termination was
to interfere with [employee benefit] rights,' " DeWitt, 106
F.3d at 522 (quoting Gavalik, 812 F.2d at 851), once the
defendant articulates and presents evidence of a legitimate,
nondiscriminatory reason for its action, the plaintiff must
meet its " `ultimate burden of persuasion,' " St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993); see also
Gavalik, 812 F.2d at 859, by proving that the defendant
discriminated against her. See Miller v. CIGNA Corp., 47
F.3d 586, 597 (3d Cir. 1995) ("[T]he plaintiff's burden is to
show that the prohibited consideration played a role in the
decisionmaking process and that it had a determinative
influence on the outcome of that process.") To satisfy this
burden in circumstantial evidence cases like this one, a
plaintiff must prove that the legitimate reason proffered by
the defendant was pretext for the real discriminatory reason
behind the employment action.2See Burdine, 450 U.S. at
256 (holding that after a defendant sets forth a legitimate
reason, the plaintiff must "demonstrate that the proffered
reason was not the true reason for the employment
decision"). A plaintiff "may succeed in this either directly by
persuading the court that the discriminatory reason more
likely motivated the employer or indirectly by showing that
the employer's proffered explanation is unworthy of
_________________________________________________________________

2. Proving that the legitimate reason was pretext is necessary to
establish a discriminatory claim but might not be sufficient. "A finding
that the employer's nondiscriminatory explanation is a pretext permits,
but does not require, the trier of fact to conclude that the employer
discriminated against the plaintiff based on the ground alleged." Miller,
47 F.3d at 596 (citing Hicks, 509 U.S. at 511) (emphasis added).

                               7
credence." Id. Thus, the analysis of pretext is designed to
focus the court's attention on whether the defendant's
proffered reason is the real reason. It assumes that if the
plaintiff had evidence of other illegitimate motivating factors
which contributed to the employment decision, she either
would have used that evidence in her attempt to persuade
the court that the defendant's legitimate reason was pretext
or would have included direct evidence of those motivations
in her initial action and circumvented the entire
circumstantial evidence inquiry altogether. See, e.g.,
Gavalik, 812 F.2d at 853 (noting that where the plaintiff's
case consists of direct evidence, the McDonnell Douglas-
Burdine shifting burdens mechanism is inapplicable).

Plaintiff is correct to point out that the plaintiff of a
circumstantial evidence case need not prove that the intent
to interfere was the sole reason for the adverse employment
decision. Her argument is not necessarily inapplicable to
cases applying the circumstantial evidence standard, see,
e.g., Miller, 47 F.3d at 597 & n.9 (describing the
applicability of a plaintiff-need-not-prove-sole-cause
instruction in pretext cases "where the plaintiff's evidence
of discrimination is sufficiently `direct' to shift the burden of
proof to the employer on the issue of whether the same
decision would have been made in the absence of the
discriminatory animus"), but the primary focus of the
court's analysis in those cases is different. The court is
presented with a single legitimate reason proffered by the
defendant which the plaintiff is trying to prove pretextual
with an argument constructed from the coincidence of a
number of circumstances. This is where the pretext
analysis is so useful. If the plaintiff proves that her
employer's proffered reason was pretext, the court may
infer that the employer was in fact motivated by the specific
intent to interfere with the attainment of benefits. If, on the
other hand, the plaintiff fails to prove that her employer's
proffered legitimate reason was pretext, she has not
persuaded the court that a discriminatory reason played
any role in her termination of employment and it helps her
case little to speak of other possibly contributing reasons.3 A
_________________________________________________________________

3. While our opinions and the opinions of other circuits do sometimes
use terms like "a motivating factor," "contributing factor" and "sole

                               8
court, like the district court in this case, simply cannot
make the unfounded inference that an employer acted with
the specific intent to interfere with the plaintiff's attainment
of benefits.

The situation presented by this case makes Plaintiff's sole
cause argument somewhat beguiling. While it may have
appeared that the court was forcing Plaintiff to prove that
the discriminatory reason was the sole cause of her
termination, the district court in fact did not require
Plaintiff to prove that one reason or another was the sole
cause of her termination. It merely required her to prove, as
part of her ultimate burden of persuasion, that Defendant's
proffered legitimate reason was pretext. Cf. Burdine, 450
U.S. at 256 (holding that after a defendant sets forth a
legitimate reason, the plaintiff must "demonstrate that the
proffered reason was not the true reason for the
employment decision"). Plaintiff's sole cause arguments are
simply extraneous to our review of the district court's
analysis.

Plaintiff's argument that the district court should have
applied "a motivating factor" standard to her claim is
mistaken as well because she was required to "show that
the prohibited consideration played a role in the
decisionmaking process and that it had a determinative
influence on the outcome of that process." Miller, 47 F.3d at
597 (emphasis added). The circumstantial evidence Plaintiff
presented in this case failed to convince the district court
that her employer's intent to interfere was even a factor at
all in the employment decision. After reviewing the
testimony of Plaintiff's supervisor, the district court
determined that "[t]here was not the slightest hint . . . that
any decision with respect to [P]laintiff's continued
employment was based upon a desire to save [D]efendant
from paying [the long-term disability] benefits." DiFederico,
_________________________________________________________________

reason" to describe and characterize what is or is not an employer's
motive, see DeWitt, 106 F.3d at 522; Gavalik, 812 F.2d at 851;
Humphreys, 966 F.2d at 1043, we believe it is preferable, in a pretext
case analysis, to speak either in terms of "determinative" as the district
court did in this case, DiFederico, 1996 WL 53808, at *5; see also Miller,
47 F.3d at 597, or "real reason" as the Supreme Court did in Hicks, 509
U.S. at 511 n.4.

                               9
1996 WL 53808, at *5. The court simply could notfind any
evidence, direct or circumstantial, upon which to make an
inference that her employer was motivated in its decision
by unlawful reasons. The district court stated:"There has
to be more than the coincidence of these two factors
(defendant's financial woes and plaintiff's termination) to
support an inference that the one came about as a result
of the other." Id. at *6. We conclude that the court did not
err in allocating the burdens of persuasion and the
corresponding legal standards for circumstantial evidence
cases.

In her final claim on appeal, Plaintiff argues that the
district court erred in finding that her circumstantial
evidence did not prove that Defendant's legitimate reason
was pretextual. Plaintiff does not appear to challenge
whether the district court had an adequate factual basis
upon which it could base its ultimate determination that
she failed to show pretext. Instead, she contends that the
court's "underlying factual findings" themselves were
"unsupported by substantial evidence, lacked adequate
evidentiary support in the record, were against the clear
weight of the evidence, and/or were the product of a
misapprehension of the weight of the evidence." Appellant's
Amended Br. at 36-37. In other words, Plaintiff asserts not
that the district court's ultimate conclusion lacks sufficient
factual support but that those factual findings themselves
are unfounded. We review a district court's factualfindings
for clear error. See Gavalik, 812 F.2d at 850. Under the
clearly erroneous standard, however, " `[i]t is the
responsibility of an appellate court to accept the ultimate
factual determination of the fact-finder unless that
determination either (1) is completely devoid of minimum
evidentiary support displaying some hue of credibility, or (2)
bears no rational relationship to the supportive evidentiary
data.' " Coalition to Save Our Children v. Board of Educ., 90
F.3d 752, 759 (3d Cir. 1996) (quoting Krasnov v. Dinan,
465 F.2d 1298, 1302 (3d Cir. 1972)).

Plaintiff complains that the district court's findings
number 18, 23, 27, 28, 30, 31, 38, 42, and 44 are clearly
erroneous. Instead of addressing each of the challenged
findings in turn, as briefed by the parties, we can conclude

                               10
that the district court's findings involved credibility
determinations which are supported by the record and
which we will not second-guess. While there may be
evidence and inferences to the contrary, we cannot say that
the findings are devoid of credible evidentiary support or
that they lack a rational relationship to the evidentiary
data. Based on our review of the record as a whole, we hold
that none of the district court's factual findings are clearly
erroneous and we affirm the court's ultimate conclusion.

AFFIRMED.

A True Copy:
Teste:

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

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