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In July, in Anderson v. Conrail, the 3rd U.S. Circuit Court of Appeals announced a more stringent prima facie case for an age discrimination claim arising in the context of a reduction-in-force. This new formulation requires a plaintiff to show that the retained comparator is both sufficiently younger and similarly situated. The decision in Anderson, however, is likely to limit the tendency of some district courts to misapply the 3rd Circuit’s prior teaching in Pivirotto v. Innovative Systems Inc. The Pivirottocourt eliminated the requirement that a plaintiff establish that the retained employee is outside the protected class. COURT’S FLEXIBLE APPROACH The 3rd Circuit cast its lot with seven other circuits (1st, 2nd, 5th, 6th, 7th, 8th and 11th) 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 Patricia Pivirotto challenged a jury instruction concerning the prima facie case. Judge Clarence C. Newcomer of U.S. District Court for the Eastern District of Pennsylvania 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 3rd Circuit agreed with 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 Edward R. Becker observed that the district court’s formulation could find support in some imprecise 3rd 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 U.S. Supreme Court in O’Connor v. Consolidated Coin Caterers Corp.and the 3rd Circuit in Maxfield v. Sinclair, which presaged O’Connor. The court explained that “[j]ust as nothing in the ADEA” — both O’Connorand Maxfieldwere 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 man over a woman, 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 Pivirottocourt, therefore, explicitly agreed with the 1st 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 Pivirottocourt 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 Torrehad carried his evidentiary burden by merely showing that a younger employee “assumed his responsibilities when his employer decided not to replace” plaintiff. According to some commentators and courts, Pivirottostands 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 Pivirotto‘s teaching to age discrimination claims. For instance, in Grabosky v. Tammac Corp., Middle District Chief Judge Thomas I. Vanaskie, denied the employer’s summary judgment on plaintiff’s ADEA claim. Vanaskie commented that the Pivirottocourt had not “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 Cumpianodecision (“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”), 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 Graboskycourt 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 Franklin S. Van Antwerpen of the Eastern District applied Pivirottoto a laid-off employee’s ADEA claim. Plaintiff Zysk, who was 59 years old at termination, satisfied his prima facie burden by showing that his work was redistributed to two younger employees, who were then aged 26 and 40. The Pivirottocourt, according to Van Antwerpen, eliminated the requirement of proving that the “position was refilled per se.” PRECIS OF ‘ANDERSON’ Because Pivirottowas a discharge, not a RIF case, its application to the latter is questionable. Perhaps by failing to cite Pivirottoin Anderson, the 3rd Circuit has telegraphed that Pivirottodoes not apply to RIF claims. The salient background for the Andersondecision is as follows. In 1995, Conrail laid off 30 of its employees, 29 of whom were 40 or older. 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 Eastern District Judge Harvey Bartle III’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-Burdinetripartite paradigm. In this first step, a plaintiff must demonstrate four elements, namely that he/she: �Was 40 years old or older. �Was qualified for the position. �Suffered an adverse employment action. �Was replaced by a “sufficiently younger employee, raising an inference of age discrimination.” The fourth element was a focus of both Bartle and, on appeal, the 3rd Circuit. 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 positions for which plaintiff also was qualified. The 3rd Circuit adopted Bartle’s approach, which is consistent with, and based upon, 6th and 11th circuit opinions. The Andersoncourt 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 Andersondecision. That decision 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. Yvonne R. Haddad is an associate at Post & Schell, www.postschell.com . She specializes in employment litigation as a member of the employment law practice group. Haddad also has contributed to the ABA’s treatise titledEmployment Discrimination Law . After clerking for Judge J. Sidney Hoffman of the Superior Court of Pennsylvania, she began the practice of law in the field of commercial litigation.

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