No “Bumping”: The Third Circuit Tightens Up the Prima Facie Case Requirements in RIFs.

Three weeks ago, in Anderson v. Conrail, the Third Circuit announced a more stringent prima facie case for an age discrimination claim arising in the context of a reduction-in-force(“RIF”). This new formulation requiresa plaintiff to show that the retained comparator is both sufficiently younger andsimilarly situated. The decision in Anderson, however, is likely to limit the tendency of some district courts to misapply the Third Circuit’s prior teaching in Pivirotto v. Innovative Systems, Inc. The Pivirotto court eliminated the requirement that a plaintiff establish that the retained employee is outside the protected class.

Pivirotto Reaffirms Third Circuit’s Flexible Approach

The Third Circuit cast its lot with seven other circuits (First, Second, Fifth, Sixth, Seventh, Eighth and Eleventh) regarding the fourth element of a Title VII prima facie case in its September 1999 decision in Pivirotto v. Innovative Systems, Inc.

In her appeal, plaintiff PatriciaPivirotto challenged a jury instruction concerning the prima facie case. Judge Newcomer had instructed the jury that “[t]he Plaintiff must first establish the following facts by a preponderance of the evidence. First, that she is a woman, which you may take as proven; secondly, that she was qualified for the position from which she was terminated; third, that she was discharged; fourth that she was replaced by a man. If you find that the Plaintiff has not established any one of the above four elements by a preponderance of the evidence, then you must find for the Defendant.” The Third Circuit agreed with Ms.Pivirotto that the instruction was erroneous, but it affirmed the verdict because the error was harmless under the circumstances. The latter point is beyond the scope of this article.

Chief Judge Beckerobserved that the district court’s formulation could find support in some imprecise Third Circuit opinions that had suggested that plaintiff must prove that he/she was “replaced by someone outside the protected class.” The correct standard, however, was articulated by the Supreme Court in O’Connor v. Consolidated Coin Caterers Corp. and the Third Circuit in Maxfield v. Sinclair, which presaged O’Connor. The court explained that “[j]ust as nothing in the ADEA”—both O’Connor and Maxfield were ADEA decisions—“requires that an age-discrimination plaintiff prove that he was replaced by someone under the age of 40 (as opposed to someone sufficiently younger to create an inference of discrimination), nothing in Title VII requires a gender-discrimination plaintiff to prove that she was replaced by someone outside the protected class.”

The fact that invidious gender-based stereotypes infect employment decisions in less obvious ways than the simple selection of a male over a female, or vice-versa, compels a more elastic prima facie case for Title VII claims. For instance, “an employer may treat women less favorably than men, but still be willing to hire a woman to fill a position left vacant by the firing of a discriminated-against woman.” Likewise, an employer may terminate women who are “not feminine enough” or “too aggressive,” while not using a parallel yardstick for male employees.

Indeed, litigation avoidance may motivate an employer to hire a replacement of the same gender to defeat a sex discrimination claim. The Pivirotto court, therefore, explicitly agreed with the First Circuit’s comment in Cumpiano v. Banco Santander P.R. that “while attributes of a successor employee may have evidentiary force in a particular case, a complainant can satisfy the fourth prong of her prima [facie] case simply by showing that . . . the employer had a continued need for ‘someone to perform the same work after the complainant left.’”

The Pivirotto court not only highlighted the flexibility of the prima facie case in Title VII cases, but it also discussed its flexibility in the reduction-in-force context. The court wrote, quoting Torre v. Casio, that the “fourth element must be relaxed in certain circumstances, such as when there is a reduction in force.” Although this malleability is not limited to the RIF context, “this has simply been the most frequent and obvious occasion for modifying the typical requirements of the prima facie case.” The discharged plaintiff in Torre had carried his evidentiary burden by merely showing that a younger employee “assumed his responsibilities when his employer decided not to replace” plaintiff.

Pivirotto Progeny

According to some commentators and courts, Pivirotto stands for the broad proposition that the traditional fourth element is non-essential and that plaintiff carries his/her burden by coming forward with evidence “adequate to create an inference” of discrimination.

Given that ADEA decisions undergird Pivirotto, courts, quite predictably, have applied the Pivirotto’steaching to age discrimination claims. For instance, in Grabosky v. Tammac Corp., Middle District Chief Judge Vanaskie, denied the employer’s summary judgment on plaintiff’s ADEA claim. Chief Judge Vanaskiecommented that the Pivirotto court hadnot “define[d] the fourth element in terms more than that the plaintiff present evidence adequate to create an inference of unlawful discrimination.” Accordingly, the court eliminated from the ADEA prima facie case, proof of replacement by a significantly younger worker. Citing approvingly, the Cumpiano decision (“a complainant can satisfy the fourth prong . . . simply by showing that the employer had a continued need for ‘someone to perform the same work after the complainant left”), Chief Judge Vanaskie held that “the content of the final element of plaintiff’s prima facie case is whether the position remained vacant and/or was filled by another person.”

After surveying decisions of its sister courts, the Grabosky court opined that “[j]udicial officers in the Western and Eastern Districts of Pennsylvania have rejected the argument that replacement by a younger person is an essential element of a prima face age discrimination case.” One such case is Zysk v. FFE Minerals USA, Inc., in which Judge Van Antwerpen applied Pivirotto to a laid-off employee’s ADEA claim. Plaintiff Zysk, who was fifty-nine years old at termination, satisfied his prima facie burden by showing that his work was redistributed to two younger employees, who were then aged twenty-six and forty. The Pivirotto court, according to Judge Van Antwerpen, eliminated the requirement of proving that the “position was refilled per se.”

Precis of Anderson

Because Pivirotto was a discharge, not a RIF, case, its application to the latter is questionable. Perhaps by failing to cite Pivirotto in Anderson, Third Circuit has telegraphedthat Pivirottodoes not apply to RIF claims.

The salient background for the Anderson decision is as follows. In 1995, Conrail laid off thirty of its employees, twenty-nine of whom were forty or over. The RIFed employees sued under ERISA and ADEA. The court dismissed as time-barred plaintiffs’ ERISA claims, while it granted Conrail’s summary judgment motion in part and denied it in part as to plaintiffs’ ADEA claims. The claims of fourteen plaintiffs survived summary judgment; eleven of this group settled and three proceeded to trial.

Of interest here is Judge Bartle’s entry of summary judgment on the ground that some plaintiffs had failed to carry their burden of showing a prima facie case, the first step in the McDonnell-Douglas-Burdine tripartite paradigm. In this first step, a plaintiff must demonstrate four elements, namely that he/she (1) was forty years old or older; (2) was qualified for the position; (3) suffered an adverse employment action; and (4) was replaced by a “sufficiently younger employee, raising an inference of age discrimination.”

The fourth element was a focus of both Judge Bartle and, on appeal, the Third Circuit. Judge Bartle, for the first time in the Eastern District, held that a plaintiff must show that the retained, “sufficiently younger” employee also was “similarly situated.” The philosophic underpinning for this conclusion is that the “ADEA is not a bumping statute.” Accordingly, an ADEA plaintiff in a RIF case cannot satisfy the fourth element simply by showing that younger employees were retained in positionsfor which plaintiff also was qualified.

The Third Circuit adopted Judge Bartle’s approach, which is consistent with, and based upon, Sixth Circuit and Eleventh Circuit opinions. The Anderson court explained that if it “were to hold otherwise, we would be construing ADEA as guaranteeing a protected employee a job at the expense of a sufficiently younger employee.”

Conclusion

The realities of the marketplace clearly informed the Anderson decision. Thatdecision recognizes that an employer will not, without more,be presumed to act in a discriminatory manner simply because it lays off an employee who happens to be a member of a protected classification.