Opinion
CIVIL ACTION NO. 03-CV-2976
May 21, 2004
MEMORANDUM ORDER
Presently before the Court is the Motion for Summary Judgment filed by Defendant Verizon Wireless. (Doc. No. 18.) Plaintiff sued Defendant under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 PA. CONS. STAT. § 955, 962 ("PHRA"), after Defendant failed to hire/promote Plaintiff to the position of Sales Manager — Business Accounts. For purposes of this motion, Defendant concedes that Plaintiff has set forth sufficient evidence to show a prima facie case of age discrimination. The question presented is whether Defendant has met its burden of production that it had a legitimate, non-discriminatory reason for deciding not to hire Plaintiff as Sales Manager, and, if so, whether Plaintiff has met his burden of persuasion showing that Defendant's explanation is a pretext for discrimination. For the following reasons, we conclude that Defendant has met its burden of articulating a legitimate, non-discriminatory reason for deciding not to hire Plaintiff as Sales Manager, but that Plaintiff has not met his burden of showing that Defendant's explanation is a pretext. Accordingly, we will grant Defendant's motion for summary judgment.
I. BACKGROUND AND UNDISPUTED FACTS
A. Plaintiff's Employment History
Plaintiff Walter Snik is fifty-two years old. He began working for Defendant Verizon Wireless in November, 1998, as a retail sales representative in Defendant's Lehigh Valley Mall store. (Doc. No. 20, Ex. A ("Snik Dep.") at 25, 27.) Prior to joining Defendant, Plaintiff had worked extensively in the telephone industry. From 1972 to 1996, Plaintiff held various positions with NYNEX Corporation. (Doc. No. 18, Ex. D-2 at 2-3.) In 1981 or 1982, NYNEX promoted Plaintiff to the position of sales manager. (Snik Dep. at 9.) As sales manager, Plaintiff was responsible for managing NYNEX's accounts with the Borough of Manhattan in New York City. ( Id. at 10.) In this position, Plaintiff supervised between four and nine people. ( Id.) He also provided sales training to new NYNEX employees. ( Id. at 12.) In 1996, Plaintiff retired from NYNEX. ( Id. at 15.)
In 1996, Plaintiff was hired by Omnipoint Communications, which was a startup wireless telephone company. ( Id.) At Omnipoint, Plaintiff worked as a corporate account manager. ( Id. at 16.) As corporate account manager Plaintiff focused on selling wireless telephone services to New York City. ( Id.) He did not supervise anyone at Omnipoint. ( Id. at 17.) Plaintiff encountered difficulties with his job at Omnipoint. He testified that he was "spinning his wheels as a corporate account manager." ( Id. at 19.) On July 1, 1998, Omnipoint terminated Plaintiff for "unsatisfactory performance." (Doc. No. 18, VW/Snik at 0196-0197.)
We note that Plaintiff initially indicated that he was dissatisfied with Omnipoint and that his leaving was voluntary. (Snik Dep. at 17-18.)
After leaving Omnipoint, Plaintiff saw an advertisement in the newspaper for a job as a retail sales representative with Defendant. (Snik Dep. at 20.) Plaintiff submitted his resume to Defendant and was called in for an interview. ( Id.) Plaintiff was called back for a second interview, during which he learned Defendant's procedures regarding promotions. ( Id. at 22.) Plaintiff was told that with his background and credentials, he would be able to advance to higher positions with Defendant. This meant that if Plaintiff were hired as a retail sales representative, he would be able to apply for other positions with Defendant when those positions were posted on the company internet web-site. ( Id. at 22-23.) Defendant does not have a policy or practice of promoting internal applicants prior to making positions available to candidates from outside the company. Rather, it posts positions internally and recruits external candidates simultaneously. (Doc. No. 18, Scherzer Dep. at 12.) At the end of Plaintiff's second interview, he was told that he would be hired as a retail sales representative, subject to his successfully completing alcohol and drug tests, and a third interview. (Snik Dep. at 23.) After successfully completing these requirements, Plaintiff was hired as a retail sales representative in one of Defendant's new stores, located in the Lehigh Valley Mall. ( Id. at 24.) Plaintiffs direct supervisor at the Lehigh Valley Mall store was Gus DeKrell, the assistant manager of the store. ( Id.)
Though DeKrell's title was "assistant manager," he was actually the only manager of the store where Plaintiff worked. ( Id. at 28.)
As a retail sales representative at the store in the Lehigh Valley Mall, Plaintiff would greet customers as they entered the store, find out their cellular telephone needs, and attempt to sell them cellular telephone services and products. ( Id. at 27.) Plaintiff was one of three retail sales representatives who worked in the Lehigh Valley store. ( Id. at 28.) Plaintiff's employer evaluations show that his performance as a retail sales representative was generally "satisfactory" or "on target." (Snik Dep. at 37-38; Doc. No. 18, Exs. D-4, D-5, D-7, D-8, D-34.) At times, Plaintiff performed better than satisfactory. ( See, e.g., Doc. No. 18, Ex. D-5 (noting that for the second half of 1999, Plaintiffs "previous sales skills, and attention to detail in the sales process enabled him to achieve above average scores").) Other times, Plaintiffs performance was less than satisfactory. ( See, e.g., Ex. D-4 (noting that for the first half of 1999, Plaintiff "consistently falls below target on accessories and enhanced services"), Ex. D-8 (noting in January, 2001, that Plaintiff "should pursue more roles in leading the team").) Sometimes Plaintiff would fail to meet his sales quota. For example, in September, 2000, DeKrell issued Plaintiff a letter of concern because Plaintiff had only achieved eighty-nine percent of his quota for that month. (Snik Dep. at 71; Doc. No. 18, Ex. D-14.) At other times, Plaintiff would exceed his sales quota. Notably, in 1999 and again in March, 2001, Plaintiff was invited to Defendant's Winner's Circle Dinner which recognizes employees who exceeded their sales objectives for that year. (Snik Dep. at 60.)
B. Plaintiff Applies for the Sales Manager Position
At some point, Plaintiff applied for the position of senior retail sales representative, but was turned down for that position. ( Id. at 34.) Plaintiff does not claim that Defendant discriminated against him when it declined to promote him to senior sales representative. ( Id.) Sometime later, Plaintiff saw a listing for the Sales Manager position on Defendant's website. ( Id. at 76.) In accordance with Defendant's policies, on or about March 8, 2001, Plaintiff e-mailed his application for the Sales Manager position, resume and an employee profile form to DeKrell for his approval. ( Id. at 76-80; Doc. No. 18, D-16.) DeKrell approved Plaintiff's application. DeKrell's approval did not mean that Plaintiff was qualified for that position. It simply meant that Plaintiff met certain minimum criteria needed to apply for the Sales Manager position. (Snik Dep. at 143.) In fact, DeKrell did not believe that Plaintiff had demonstrated the leadership qualities required of a good Sales Manager. (Doc. No. 18, DeKrell Dep. at 10.)
Jeffrey Suskind was responsible for hiring for the position of Sales Manager. (Doc. No. 18, Suskind Cert. ¶¶ 1.) Suskind screened three candidates for the position: Plaintiff; Patrick Fahs, a thirty-three year old retail store manager who had worked for Defendant since 1997; and Robert Kozloski, a thirty-three year old external candidate. (Doc. No. 18, Kozloski Dep. at 4; Campbell Dep. at 3; Scherzer Dep. at 21; Suskind Cert. ¶ 8.)
Suskind contacted Plaintiff on March 13, 2001, to conduct a telephone interview, a procedure he also followed with respect to Fahs, the other internal candidate. (Suskind Cert. ¶ 2; Snik Dep. at 100, 113.) During the call, Suskind reviewed Plaintiff's resume and they discussed Plaintiff's work experience. (Snik Dep. at 102-105.) The call lasted less than ten minutes. ( Id. at 100.) Plaintiff felt that Suskind had not reviewed his resume prior to the call. ( Id. at 103-104.) At the end of the call, Suskind complimented Plaintiff on his work experience. ( Id. at 103.) He also alluded to the fact that once he was finished reviewing all of the resumes that he had before him, he would call Plaintiff to set up an in-person interview. ( Id.) Suskind remembers that during the call, Plaintiff did not provide examples of how Plaintiff had successfully motivated a team in the past, or of his leadership abilities. (Suskind Cert. ¶ 4.) He also did not feel that Plaintiff expressed a strong desire for the Sales Manager position. ( Id.) Plaintiff did not ask Suskind about what the position entailed. (Snik Dep. at 118.)
Shortly after the phone interview, Suskind solicited input about Plaintiff's qualifications for the Sales Manager position. He did not speak with Plaintiff's immediate supervisor, DeKrell. (DeKrell Dep. at 11.) Instead, he spoke with Bruce Campbell, who at the time was the Director of Communications Store Channel for Defendant. (Doc. No. 18, Campbell Dep. at 4.) Campbell and the associate directors reviewed the retail sales representatives on a weekly basis to determine who had the ability to manage. (Campbell Dep. at 17; Scherzer Dep. 18-19.) One of the associate directors was Michael Ross, who reported to Campbell. (Snik Dep. at 61; Campbell Dep. at 20.) Plaintiff's immediate supervisor, DeKrell, reported to Ross. (Campbell Dep. at 20.) Thus, Campbell received input about Plaintiff from Ross. ( Id. at 21.)
Campbell thought that Plaintiff was an "average performer." ( Id. at 18.) He also thought Plaintiff had "never presented himself as a potential leader or assistant manager or manager" while working for Defendant. ( Id. at 17.) Campbell was "curious [about Plaintiffs] abilities to lead in the direct sales channel." ( Id. at 13.) He told Suskind that Plaintiff was not even next in line to be an assistant store manager "because he had not taken a lead role." (Suskind Cert. ¶ 6.) Campbell was not sure if he had ever met Plaintiff, but Campbell may have met him when Campbell visited Plaintiff's store. (Campbell Dep. at 9.) At the time, Campbell did not know how old Plaintiff was. ( Id. at 24.)
After careful consideration of both the phone interview and the management feedback, Suskind decided not to offer Plaintiff an in-person interview for the Sales Manager position. (Suskind Cert. ¶ 7.) Suskind also did not offer Fahs, the other internal candidate, an in-person interview. ( Id. ¶ 8.) Fahs, who had been a manager in Defendant's retail sales channel since 1997, lacked direct sales experience. ( Id.)
C. Kozloski Hired as Sales Manager
Suskind ultimately chose Kozloski for the position. ( Id. ¶ 9.) Kozloski had a four-year degree in marketing and finance and had been employed with Cingular Wireless, one of Defendant's competitors, for over eight years. (Suskind Cert. ¶ 9; Kozloski Dep. at 6-8.) From 1992 to 1996, Kozloski held various titles with Cingular's predecessors, including communications consultant, account executive, and senior account executive. (Kozloski Dep. at 14-15.) In 1996, Kozloski was promoted to create a sales team from scratch. ( Id. at 10.) From 1996 to 2001, he managed a direct sales team of between two and thirteen sales representatives that sold wireless telephone services to businesses. (Suskind Cert. ¶ 9; Kozloski Dep. at 6-9, 12-13.) Kozloski was regarded as the top sales manager at Cingular, and regularly exceeded his targeted yearly sales quota. (Suskind Cert. ¶ 9; Kozloski Dep. at 8.) In addition, Cingular chose Kozloski to acquire other sales teams when other managers left the company. (Kozloski Dep. at 12.) At the time that he was being considered for the Sales Manager position, Kozloski had a fairly good knowledge of Defendant's products and services, as well as wireless products and accessories in general. ( Id. at 29-30.)
In contrast, Plaintiff does not have an associate's or bachelor's degree. Though Plaintiff testified that he obtained over thirty credits from the City University of New York, (Snik Dep. at 5), his transcript shows that he obtained only nine credits, (Doc. No. 18, VW/Snik 0194).
Kozloski was interviewed for the Sales Manager position. ( Id. at 28.) During the interview, he discussed his territory management skills, such as the times he was asked by Cingular to carve out sales territories for his sales representatives and manage those territories. ( Id. at 28-29.) He also discussed his proficiency in certain software. Kozloski stated that while he was working for Cingular, he was chosen as to pilot a specific outbound sales program. ( Id. at 41-42.) Kozloski was also interviewed by Christine Gallagher, who was in Defendant's human resources department. (Scherzer Dep. at 25.) Defendant had a policy whereby only external candidates for positions were interviewed by the human resources department. Therefore, Plaintiff was not interviewed by Defendant's human resources department. ( Id.)
D. Plaintiff Learns that Kozloski Hired as Sales Manager
Suskind did not immediately inform Plaintiff that the Sales Manager position had been filled. (Suskind Cert. ¶ 10; Snik Dep. at 110.) After some time, Plaintiff asked DeKrell if he could find out the status of Plaintiffs application. (Snik Dep. at 110.) DeKrell sent an e-mail to his supervisor, Ross, who then sent an e-mail to Campbell regarding Plaintiff. (Doc. No. 18, VW/Snik 0174.)
Plaintiff later learned from Fahs that the Sales Manager position had been filled. (Snik Dep. at 112-13.) As a result, on April 20, 2001, Plaintiff sent an e-mail to Scherzer, complaining that he had never received a follow-up interview with Suskind. Plaintiff felt he had been treated in an "unprofessional manner," and he was "very bitter." (Doc. No. 18, D-22.) Plaintiff stated that he was "unable to come up with any other reasonable explanation" than his age for not being considered as a viable candidate for the Sales Manager position. ( Id.) Plaintiff felt that he was qualified for the position. ( Id.)
On April 23, 2001, Scherzer contacted Plaintiff to discuss his allegations of age discrimination. She assured Plaintiff that Defendant's corporate policies forbade any form of discrimination. Plaintiff, however, reiterated his belief that he had been passed over for the Sales Manager position because of his age. Scherzer assured Plaintiff that she would ascertain what took place and contact him again. (Doc. No. 18, D-21.)
Scherzer reviewed Plaintiff's application and resume. (Scherzer Dep. at 16.) She also spoke to Suskind about Plaintiff's phone interview, and his conversations with Campbell about Plaintiff. ( Id. at 17.) Based on the foregoing, Scherzer believed that Plaintiff was not offered the Sales Manager position because he "was not as competitive a candidate as [the] other" candidates. ( Id. at 20.)
During her investigation, Scherzer learned that Suskind had not given Plaintiff any feedback after he decided not to offer him the Sales Manager position. Defendant had a policy that required Suskind to give feedback to every applicant, even if they were not selected for a particular position. Suskind was unaware of this policy. Scherzer explained to Suskind that it was imperative that Suskind follow this policy in the future. Suskind apoligized to Scherzer, and offered to contact Plaintiff and provide him feedback. (Suskind Cert. ¶¶ 10-11.)
Following this conversation, on April 27, 2001, Scherzer contacted Plaintiff and explained to him that she had spoken to Suskind about his application. (Doc. No. 18, D-21.) Scherzer told Plaintiff that he was not hired as Sales Manager because his leadership qualities were "not sufficient or up to par" for that position. She also told Plaintiff that during his phone interview he did not project the aggressiveness that was necessary for the position. Scherzer offered to help Plaintiff develop his leadership skills. Plaintiff replied that he thought her explanation was unsubstantiated and without merit. He reiterated his belief that he was a victim of age discrimination. The next day Plaintiff filed a complaint with the Pennsylvania Human Rights Commission ("PHRC") alleging discrimination. ( Id.)
On April 30, 2001, Suskind called Plaintiff. He apologized to Plaintiff for not contacting him in a more timely manner regarding Plaintiff's application, and for not providing Plaintiff with feedback on the selection process. Suskind told Plaintiff that the person Defendant was looking for to fill the Sales Manager position had to "project aggressiveness and be dynamic." ( Id.) Plaintiff felt that there was a connection between the Suskind's use of the word "dynamic" and Plaintiff's age. (Snik Dep. at 141.) Plaintiff told Suskind that he did not accept his explanation, and thought his call was prompted solely by Plaintiffs complaint with the PHRC.
Later that same day, DeKrell and Ross met with Plaintiff. Ross explained to Plaintiff that leadership and experience were "critical" in the Sales Manager position. Ross told Plaintiff that based on his conversations with DeKrell, Plaintiff did not posses the necessary leadership for the position. (Doc. No. 18, Ross Dep. at 21.) Ross explained that the interview process is determined by the interviewer (in this case, Suskind), and that verbal screens can and are used in that process. ( Id. at 20.) Plaintiff thanked Ross for his time and said that he was going to pursue his discrimination complaint against the company. (Doc. No. 18, D-21.)
Effective April 1, 2002, the Sales Manager position that Plaintiff applied for was eliminated. (Kozloski Dep. at 4, 36; Snik Dep. at 24.) Kozloski remained with the company as an account executive. (Kozloski Dep. at 4.)
II. LEGAL STANDARD
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Defendant, the moving party, bears the burden of proving that no genuine issue of material fact is in dispute. Adickes v. S. H. Kress Co., 398 U.S. 144, 157 (1970). Once Defendant carries this initial burden, Plaintiff may not rest upon the mere allegations in his pleading, but must set forth specific facts showing that there is a genuine issue for trial. FED. R. CIV. P. 56(e). However, in considering Defendant's motion, we will not resolve factual disputes or make credibility determinations, and we must view facts and inferences in the light most favorable to Plaintiff. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). "This standard is applied with added rigor in employment discrimination cases, where intent and credibility are crucial issues." Stewart v. Rutgers Univ., 120 F.3d 426, 431 (3d Cir. 1997) (quoting Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162 (7th Cir. 1994)).
For purposes of this motion, Defendant concedes that Plaintiff has established a prima facie case of discrimination. Once a plaintiff establishes a prima facie case of discrimination, the "burden of production shifts to the defendant to `articulate some legitimate, nondiscriminatory reason for the'" failure to hire the plaintiff. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis removed) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The employer satisfies this burden "by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes, 32 F.3d at 763 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)). The employer need not show that it was actually motivated by its proffered reasons. St. Mary's, 509 U.S. at 510-11. Once the employer meets this "relatively light burden," "the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Fuentes, 32 F.3d at 763.
Though Fuentes is a Title VII case, where appropriate the evidentiary burdens applicable in a Title VII case are also used in ADEA cases. 32 F.3d at 764 n. 6.
"At trial, the plaintiff must convince the factfinder 'both that the reason was false, and that discrimination was the real reason. "`Fuentes, 32 F.3d at 763 (quoting Hicks, 509 U.S. at 515). However, to survive summary judgment, the plaintiff must only "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, 32 F.3d at 764 (citing Hicks, 509 U.S. at 511). The Court of Appeals for the Third Circuit further described the Plaintiffs evidentiary burden as follows:
In other words, because the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered non-discriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons . . . a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. . . . [T]he plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext). To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. . . . Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence,' . . . and hence infer `that the employer did not act for [the asserted] non-discriminatory reasons.'. . . . While this standard places a difficult burden on the plaintiff, `[i]t arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs.'Fuentes, 32 F.3d at 764-65 (footnotes, citations, and quotations omitted). With these standards in mind, we will now assess whether Plaintiff and Defendant have met their respective evidentiary burdens.
III. ANALYSIS
A. Defendant's Burden to Articulate Legitimate, Non-Discriminatory Reasons
It is clear that Defendant has met its "relatively light" burden of articulating a legitimate, non-discriminatory reason for deciding not to hire Plaintiff as Sales Manager. Defendant has produced evidence that Suskind was not impressed with Plaintiff's telephone interview. Suskind stated that Plaintiff did not provide any discrete examples of his leadership abilities during the interview. (Suskind Cert. ¶ 4.) Moreover, Plaintiff did not "express a strong desire for the [Sales Manager] position." ( Id.) Finally, Suskind felt that Plaintiff "spoke in a neutral voice, did not demonstrate enthusiasm, and did not sell me on why he should be selected for the position." ( Id.) Plaintiff admitted that he did not ask Suskind about what the position entailed. (Snik Dep. at 118.)
In addition, Defendant has produced evidence that during his time with the company, Plaintiff did not exhibit the leadership qualities that were required for the Sales Manager position. DeKrell, Plaintiff's immediate supervisor, indicated that Plaintiff "didn't demonstrate anything leadership wise at the store level to indicate he would be a good sales manager in my eyes." (DeKrell Dep. at 10.) Also, Plaintiff's 2000 Performance Appraisal and Development Plan, which was prepared before Plaintiff applied to be Sales Manager, stated that Plaintiff "should pursue more roles in leading the team." (Doc. No. 18, Ex. D-8.) Moreover, leadership ability and experience were "critical" in the position of Sales Manager. (Ross Dep. at 21.)
Finally, Defendant has produced evidence showing that Kozloski, was, in its judgment, better qualified for the Sales Manager position. Defendant wanted someone with a "proven sales record," and Kozloski had more management experience in the wireless industry selling wireless services to businesses. (Suskind Cert. ¶ 13.) Kozloski had been successful as a Sales Manager before. We are satisfied that Defendant has articulated legitimate, non-discriminatory reasons for not hiring Plaintiff as a Sales Manager. (Suskind Cert. ¶ 13.)
B. Plaintiff's Rebuttal of Defendant's Reasons
Plaintiff offers four reasons why we should discredit Defendant's explanations for refusing to hire him and why we should find a genuine issue of material fact as to Defendant's engaging in age discrimination. Plaintiff argues that (1) he was better qualified than Kozloski for the Sales Manager position; (2) Defendant did not investigate Plaintiffs background as thoroughly as it did Kozloski's; (3) Defendant violated its hiring policy when Suskind failed to provide Plaintiff with feedback after deciding not to hire him; and (4) Defendant failed to hire Plaintiff for mostly subjective reasons that were created solely in response to this litigation.
1. Plaintiff's claims that he was better qualified than Kozloski and that Defendant failed to hire Plaintiff for mostly subjective reasons created in response to this litigation
Plaintiff argues that he possessed many more years of experience than Kozloski. Plaintiff then cites a number of cases that stand for the proposition that an inference of a discriminatory motive may arise when an employer favors a less qualified person for a position over someone who is a member of a protected class. See, e.g., Paquin v. Federal Nat'l Mortgage Ass'n, 119 F.3d 23, 31 (D.C. Cir. 1997) ("[H]iring a less qualified person can support an inference of discriminatory motive. . . .") (citing Harding v. Gray, 9 F.3d 150, 153-54 (D.C. Cir. 1993)); EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1444 (5th Cir. 1995) ("A fact finder can infer pretext if it finds that the employee was `clearly better qualified' (as opposed to merely better or as qualified) than the employees who are selected.") (citing Odom v. Frank, 3 F.3d 839, 845-46 (5th Cir. 1993)).
Defendant counters that Kozloski was better qualified for the Sales Manager position. Defendant offers three reasons to support its contention. First, Defendant points to evidence that leadership and experience were "critical" in the Sales Manager position. (Ross Dep. at 21; see also Suskind Cert. ¶ 13 ("I needed someone with a proven sales record who had strong leadership skills and who demonstrated the motivation to rebuild an entire sales team.").) In Suskind's assessment, Plaintiff did not possess the level of skill required. (Suskind Cert. ¶ 13.) Second, Kozloski "did possess these skills in addition to having sales and management experience in the wireless industry selling wireless services to business." ( Id.) Finally, Suskind was not impressed with Plaintiff's phone interview.
As we have noted, to show that an employer's explanation is a pretext for discrimination, the plaintiff must "demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them `unworthy of credence. . . .'" Fuentes, 32 F.3d at 765. "[A]n employer may have any reason or no reason for discharging an employee so long as it is not a discriminatory reason." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 331 (3d Cir. 1995) (quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)). In other words, "our inquiry is limited to whether the employer gave an honest explanation of its behavior." Brewer, 72 F.3d at 331 (quoting McCoy, 957 F.2d at 373); see also, Hicks v. Arthur, 878 F. Supp. 737, 739 (E.D. Pa. 1995) ("[A]n ill-informed decision or an ill-considered decision is not automatically pretextual if the employer gave an honest explanation for termination.") (quotations omitted), aff'd, 72 F.3d 122 (3d Cir. 1995) (table).
In the instant case, Plaintiff has not shown any "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Defendant's proffered reasons for failing to hire him. For example, Plaintiff fails to successfully challenge Defendant's assessment that Plaintiff lacked the leadership skills to be Sales Manager. Significantly, Plaintiffs immediate supervisor thought that Plaintiff lacked the leadership skills to be a good Sales Manager. (DeKrell Dep. at 10.) Defendant also points to Plaintiff's 2000 Performance Appraisal and Development Plan, which states, in part, "[Plaintiff] should pursue more roles in leading the team. . . ." (Doc. No. 18, D-8.) In addition, Suskind noted that Plaintiff did not provide any examples of his leadership abilities during his telephone interview. (Suskind Cert. ¶ 4.) Against this evidence, Plaintiff offers only his own assessment that he was qualified to be Sales Manager. (Doc. No. 18, D-22.) However, "[t]he fact that an employee disagrees with an employer's evaluation of him does not prove pretext." Billet v. Cigna Corp., 940 F.2d 812, 825 (3d Cir. 1991), overruled in part on other grounds by, St. Mary's, 509 U.S. 502. Plaintiff does not point to any other evidence to refute Defendant's assessment that Plaintiff lacked the necessary leadership skills. Accordingly, we are compelled to conclude that Plaintiff's evidence is insufficient to raise a genuine issue of material fact that Defendant's explanation is a pretext.
Similarly, Plaintiff fails to successfully challenge Suskind's assessment that Kozloski was more qualified than Plaintiff. Suskind noted that Kozloski had worked in business sales for another wireless company for over eight years, successfully managed a direct sales team that sold wireless services to businesses, and worked with innovative programs, including a new hire training program, sales incentive program, and an internet-based program designed to assist account executives to obtain new accounts. (Suskind Cert. ¶ 9.) As evidence that Defendant's explanation is a pretext, Plaintiff states that he "possessed many years more experience than" Kozloski. (Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. at 14.) However, as Defendant correctly notes, the mere fact that one applicant has more years of experience than another does not necessarily make that applicant more qualified for employment. See, e.g., Billet, 940 F.2d at 825 (concluding that the plaintiff had not shown a pretext even though the person hired had sixteen years of sales experience, compared with the plaintiff's thirty-two years of sales experience); Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001) (concluding that the plaintiff had not shown a pretext even though the person hired had eight years of experience, compared with the plaintiffs thirty years of experience). Here, even though Plaintiff had more years of experience than Kozloski in the telephone industry, Kozloski had more management experience in the wireless telephone industry selling wireless services to businesses. This is the kind of experience Defendant needed in a Sales Manager. (Suskind Cert. ¶ 13.) We will not second-guess Defendant's determination that Kozloski's work experience was more valuable than Plaintiff's. See Brewer, 72 F.3d at 331 ("[W]e do not sit as a super-personnel department that reexamines an entity's business decisions.") (quoting McCoy, 957 F.2d at 373); Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992) ("Where an employer produces evidence that the plaintiff was not promoted because of its view that the plaintiff lacked a particular qualification the employer deemed essential to the position sought, a district court should focus on the qualification the employer found lacking in determining whether non-members of the protected class were treated more favorably."). Accordingly, we conclude that Plaintiff has failed to raise a genuine issue of material fact that this explanation is a pretext.
We also reject Plaintiff's argument that Kozloski was not qualified to be Sales Manager because Defendant eliminated that position on April 1, 2002. That fact is not relevant to whether Defendant discriminated against Plaintiff when it decided not to hire him. See Bruno v. W.B. Saunders Co., 882 F.2d 760, 768 n. 4 (3d Cir. 1989) (concluding that there was no reversible error in the district court's decision to exclude evidence of post-selection performance on the ground that it is irrelevant); Farahmand v. Cohen, No. 97-7952, 1999 WL 80262, at *8 (E.D. Pa. Feb. 11, 1999) ("[T]he Court finds that evidence of the post-promotion performance of [the candidate selected over the plaintiff] is not relevant. This evidence does not make it more or less likely that the Plaintiff was discriminated against at the time of the hiring decision.").
We also conclude that Plaintiff has failed to successfully challenge Suskind's assessment that Plaintiff was unimpressive during his telephone interview. Suskind stated that Plaintiff did not provide any discrete examples of his leadership abilities during the interview, did not "express a strong desire for the [Sales Manager] position," and "spoke in a neutral voice, did not demonstrate enthusiasm, and did not sell me on why he should be selected for the position." (Suskind Cert. ¶ 14.) Plaintiff contends that this explanation is a pretext because at the time, Suskind had Plaintiff's "application, which contained a full explication of his credentials." (Pl.'s Mem. at 17.) According to Plaintiff, it was not necessary that Plaintiff explain his credentials to Suskind during the interview. We disagree. Defendant is not claiming that Suskind was unaware of Plaintiffs credentials. Rather, one of Defendant's reasons for not hiring Plaintiff is that Suskind expected Plaintiff to sell himself during the interview, and that did not happen. If anything, Plaintiff's testimony corroborates this contention. ( See Snik Dep. at 118 (admitting that Plaintiff did not ask Suskind about what the Sales Manager position entailed).) There is no evidence that raises a genuine issue of material fact that this explanation is a pretext for discrimination.
Plaintiff's argument that we may infer discrimination because Defendant's reasons for not hiring Plaintiff were created in response to this litigation and "are, for the most part, entirely subjective" is also rejected. (Def's Mem. at 21.) As an initial matter, Plaintiff does not point to any evidence to support the contention that Defendant created reasons not to hire Plaintiff post hoc. Defendant, on the other hand, points to evidence that it had deemed Plaintiffs leadership skills lacking well before he applied to be Sales Manager. This evidence refutes Plaintiff's contention that Defendant is relying on post hoc explanations. Moreover, even if Defendant were relying on post hoc explanations, this would still be insufficient to demonstrate a pretext. "[T]he mere fact that a defendant relies on a post hoc evaluation does not in and of itself create a factual dispute about whether the evaluation is pretextual." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1215 (3d Cir. 1988). Instead, it is Plaintiff's burden to point to evidence that gives us reason to disbelieve Defendant's explanations. See id. Plaintiff has not met this burden.
Finally, we reject Plaintiff's argument that we may infer discrimination because Defendant gave subjective reasons for not hiring Plaintiff. The Third Circuit has made it clear that a plaintiff does not show that an employer is relying on a pretext merely because the employer relied on subjective criteria in making its hiring decision. Ezold, 983 F.2d at 527. In Ezold, a law firm decided not to make the plaintiff a partner because, in the judgment of the other partners, she lacked the necessary "legal analytic ability." Id. at 526. To show that the explanation was a pretext, the plaintiff had to demonstrate that it was not credible, "either through comparison of her ability in that category, as [the firm] perceived it, with the successful male associates, or by evidence showing that [the firm's] decision not to admit [the plaintiff] to the partnership was more likely motivated by a discriminatory reason than by her shortcomings in legal analytic ability." Id. at 529; see also Waldron v. SL Indus., Inc., 56 F.3d 491, 500 (3d Cir. 1995). Because the plaintiff failed to present such evidence, the court reversed the judgment entered in favor of the plaintiff.
Even if we agree that Defendant's reasons for not hiring Plaintiff as Sales Manager are mostly subjective, we must still grant summary judgment in favor of Defendant unless Plaintiff gives us some reason to doubt those reasons. Plaintiff has failed to point to any reason why we should doubt Defendant's reasons for choosing Kozloski over Plaintiff. Accordingly, we conclude that Plaintiff has failed to raise a genuine issue of material fact that any of Defendant's explanations are pretextual.
We also reject Plaintiff's suggestion that Suskind's use of the word "dynamic" raises an inference of discrimination. Even drawing all reasonable inferences in favor of Plaintiff, we are not convinced that Suskind was using "dynamic" as a code word for "young." "Dynamic" does not mean "young." See MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY at 360 (10th ed. 2000) (defining "dynamic," in part, as "of or relating to a physical force or energy"; "marked by usually continuous and productive activity or change"; and "energetic, forceful"). Moreover, even if we were to conclude otherwise, an isolated remark such as this is insufficient to raise an inference of discrimination and defeat a motion for summary judgment. See, e.g., Lincoln v. Momentum Sys. Ltd., 86 F. Supp.2d 421, 432 (D.N.J. 2000) (finding an isolated comment by defendant that she was "typically looking for people who are kind of fresh and young who have no experience that we can mold into successful account executives" insufficient to withstand summary judgment); Joseph v. First Judicial Dist. of Pa., No. 97-6703, 1999 WL 79056, at *5 (E.D. Pa. Feb. 2, 1999) (holding that one ambiguous remark is not sufficient to meet the plaintiff's burden of proving pretext); Gagne v. Northwestern Nat'l Ins., Co., 881 F.2d 309-16 (6th Cir. 1989) (finding that a "single, isolated discriminatory comment" by a supervisor who said he "needed younger blood" was insufficient to withstand summary judgment).
2. Plaintiff's claim that Defendant did not investigate Plaintiff's background as thoroughly as it did Kozloski's
Plaintiff argues that Defendant did not investigate Plaintiff's background as thoroughly as it did Kozloski's. According to Plaintiff, this supports an inference that Defendant's statement that Kozloski was more qualified than Plaintiff is a pretext for discrimination. However, Plaintiff fails to point to any evidence to support its contention that Defendant investigated Plaintiffs background less thoroughly than Kozlowski's. In fact, there is very little evidence in the record concerning Defendant's investigation into Kozloski's background. We know that Kozloski was interviewed by Defendant's human resources department. (Scherzer Dep. at 25.) We also know that in making its hiring decision, Defendant considered Kozloski's prior work experience and Kozloski's performance during his interview. (Suskind Cert. ¶ 9, 13; Kozloski Dep. at 28-29, 41-42.) This investigation did not significantly differ from Defendant's investigation into Plaintiff's background. Plaintiff was interviewed for the Sales Manager position. (Snik Dep. at 100.) During this interview, Suskind and Plaintiff discussed Plaintiff's work experience. (Snik Dep. at 102-105.) Suskind then contacted Campbell to receive input about Plaintiff. (Campbell Dep. at 4.) Campbell received input about Plaintiff from Ross, who oversaw DeKrell, Plaintiff's immediate supervisor. ( Id. at 20-21.) After careful consideration of both Plaintiff's interview and management feedback, Suskind decided not to offer Plaintiff an in-person interview for the Sales Manager position. (Suskind Cert. ¶ 7.) The only difference we can see between the two investigations is that only Kozloski interviewed with Defendant's human resources department. However, Defendant had a policy whereby only external candidates for positions were interviewed by the human resources department. (Scherzer Dep. at 25.) Accordingly, we cannot conclude that this difference is sufficient to raise an inference of discrimination.
We also reject Plaintiff's suggestion that perhaps Defendant overly scrutinized Plaintiff, and that it's reasons for not hiring Plaintiff were trivial. The record shows that Defendant conducted similar investigations concerning Plaintiff and Kozloski. Defendant decided not to hire Plaintiff because he was unimpressive during his interview, did not possess sufficient leadership ability, and because Kozloski was more qualified. We cannot conclude that these reasons are so trivial as to raise an inference of pretext. Cf. Ezold, 983 F.2d at 527 ("[B]arring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain positions.") (quoting Billet, 940 F.2d at 825).
3. Plaintiff's claim that Defendant violated its hiring policy when Suskind failed to provide Plaintiff with feedback after deciding not to hire him
Turning next to Plaintiff's claim that we may find an inference of discrimination from the fact that Defendant violated its hiring policy when Suskind failed to provide Plaintiff with feedback after deciding not to hire him, it is undisputed that Suskind violated Defendant's policy by not providing Plaintiff with feedback. It is also undisputed that Suskind did not know about the policy and therefore any violation was unintentional. (Suskind Cert. ¶ 10.) After Scherzer alerted Suskind to his error, Suskind called Plaintiff and apologized. (Doc. No. 18, D-21.) Under the circumstances, we fail to see an inference of discriminatory intent from Suskind's actions. All of the cases cited by Plaintiff stand for the proposition that an inference of discrimination may arise when there is a direct connection between the challenged employment action and the violation of the company's policy. See, e.g., Roberts v. Houston County Bd. of Educ., 819 F. Supp. 1019, 1028 (M.D. Ala. 1993) (finding an inference of discrimination when the employer violation its policy during the hiring process); Stukey v. United States Air Force, 809 F. Supp. 536, 533 (S.D. Ohio 1992) (finding an inference of discrimination when the interviewers asked the plaintiff questions in violation of stated policy); Sylvester v. Callon Energy Servs., Inc., 781 F.2d 520, 525-26 (5th Cir. 1986) (finding an inference of discrimination when the reason the plaintiff was fired was contrary to company policy). However, in this case Suskind's violation of Defendant's policy was not connected to his hiring decision. Instead, it occurred after the hiring decision was complete. Accordingly, we conclude that Suskind's failure to provide Plaintiff with feedback after deciding not to hire him is insufficient to raise an inference of discriminatory intent.
C. Plaintiff's Request for More Discovery
Finally, Plaintiff requests that we not decide Defendant's motion for summary judgment until Plaintiff can depose Suskind. According to Plaintiff, Suskind is under the control of Defendant and was never produced for his deposition. Plaintiff also argues that because this case turns on the credibility of Suskind it is not appropriate that we grant Defendant's motion for summary judgment without hearing from Suskind. We reject these arguments.
Suskind no longer works for Defendant. (Doc. No. 26, Certificate of Rosemary S. Gousman, Esq. ("Gousman Cert.") ¶ 2.) When Plaintiff noticed Suskind for a deposition, Defendant told Plaintiff that Suskind was a non-party not under its control. ( Id. ¶¶ 2-3.) After an investigation, Defendant located Suskind in the state of Washington. ( Id. ¶ 5.) Defendant notified Plaintiff of Suskind's whereabouts. ( Id. ¶ 7.) Under the circumstances, it was up to Plaintiff to subpoena Suskind for a deposition. See Lincoln Plaza Assocs v. Dow Chem. Co., No. 85-362, 1985 WL 3409, at *1 (E.D. Pa. Oct. 31, 1985) (holding that the plaintiff must subpoena former employees of the defendant not under the defendant's control to depose them).
This conclusion is not changed by the fact that Defendant submitted a certification from Suskind in support of it's motion for summary judgment. Defendant contacted Suskind and he voluntarily agreed to provide a certification. (Gousman Cert. ¶ 12.) This fact does not establish that Suskind was under the control of Defendant.
We are also unpersuaded by Plaintiff's argument that we should postpone our decision on Defendant's motion for summary judgment simply because Plaintiff requests more discovery. In all of the cases cited by Plaintiff in support of his argument, St. Surin v. Virgin Islands Daily News, Inc., 21 F.3d 1309 (3d Cir. 1994); Miller v. Beneficial Mgmt. Corp., 977 F.2d 834 (3d Cir. 1992); Sames v. Gable, 732 F.2d 49 (3d Cir. 1984); Costlow v. United States, 552 F.2d 560 (3d Cir. 1977), the motion for summary judgment was filed before the opposing party had an opportunity to conduct discovery. In this case, Plaintiff had ample opportunity to depose Suskind, but apparently chose not to.
Finally, we are not persuaded by Plaintiff's argument that summary judgment is not appropriate here because this case turns on the credibility of Suskind. Plaintiff has failed to point to any evidence to challenge Suskind's credibility. It is true that "[s]ummary judgments should seldom be used in cases alleging employment discrimination." Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987); see also Marzano v. Computer Sci. Corp., 91 F.3d 497, 509 (3d Cir. 1996) ("[S]ummary judgment is in fact rarely appropriate in [an employment discrimination] case."). However, in this case, Plaintiff has failed to raise a genuine issue of material fact that Defendant's explanations for not hiring Plaintiff are a pretext for discrimination. We conclude that this is one of those employment discrimination cases in which summary judgment is appropriate.
An appropriate Order follows.
ORDER
AND NOW, this ___ day of May, 2004, upon consideration of the Motion for Summary Judgment filed by Defendant Verizon Wireless, (Doc. No. 18), and all papers filed in support thereof and opposition thereto, it is ORDERED that the Defendant's Motion for Summary Judgment is GRANTED.IT IS SO ORDERED.