2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2009

Robert Connolly Jr. v. Pepsi Bottling Grp

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4249

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Recommended Citation

"Robert Connolly Jr. v. Pepsi Bottling Grp" (2009). 2009 Decisions. Paper 521.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/521
 Judge Aldisert was an original member of the panel assigned to this case, but did not *

participate in the panel's decision and opinion.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4249

ROBERT CONNOLLY, JR., 

 Appellant

v.

THE PEPSI BOTTLING GROUP, LLC

On Appeal from the United States District Court

for the Western District of Pennsylvania

D.C. Civil Action No. 06-cv-1462

(Honorable Joy Flowers Conti)

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 8, 2009

Before: SCIRICA, Chief Judge, RENDELL and ALDISERT , Circuit Judges.

*

(Filed: October 02, 2009 )

OPINION OF THE COURT

SCIRICA, Chief Judge.

In June 2006, plaintiff Robert Connolly was fired from his position with defendant

Bottling Group, LLC d/b/a The Pepsi Bottling Group (“PBG”). He was 52 years old at
2

the time. Plaintiff brought suit under the Age Discrimination in Employment Act

(ADEA), 29 U.S.C. §§ 621–634, alleging he was fired because of his age. The District

Court granted summary judgment for defendant, and plaintiff appeals. We will affirm.

As we write primarily for the parties, we need not recount in full the factual and

procedural history of this case, which is set forth by the court below. See Connolly v.

Pepsi Bottling Group, L.L.C., Civ. A. No. 06-1462, 2008 WL 4412090 (W.D. Pa. Sept.

22, 2008). Plaintiff began work with defendant in 1972. As of February 2004, he held

the position of Key Account Manager. In this capacity, he was assigned “third-party

operator” customer accounts to manage, including that of the University of Pittsburgh

Medical Center (“UPMC”). On June 19, 2006, defendant terminated plaintiff’s

employment. Shortly thereafter, defendant chose Robert Haig, then 47 years old, to fill

plaintiff’s former position.

According to defendant, plaintiff was terminated because he violated defendant’s

Code of Conduct in his management of the UPMC account—particularly, those

provisions of the code pertaining to business integrity, conflicts of interest, and business

gifts. In 2002, plaintiff and Bill O’Connor, director of corporate purchasing for UPMC at

the time, were involved in renegotiating the contract between defendant and UPMC. As

UPMC and defendant would later learn, plaintiff and O’Connor signed two different

versions of this renegotiated contract on December 11, 2002, one of which was thereafter

held by defendant and the other by UPMC; neither UPMC nor defendant had the other’s
 UPMC terminated O’Connor’s employment in October 2005. 1

3

version on record. These two versions contained materially different terms—for instance,

the version held by defendant contained a clause providing for $175,000 in yearly

“Special Event Support” marketing funds that defendant would make available to UPMC,

while the version held by UPMC did not. 

UPMC became aware of this situation in May 2006, when plaintiff, during a

meeting with Bob Cutone (the individual who had assumed responsibility for the contract

at UPMC ), told Cutone that the version of the contract held by UPMC was incorrect and 1

gave him the version held by defendant. Cutone informed plaintiff that UPMC had no

record of this other version of the contract. Subsequently, Cutone’s supervisor notified

defendant that UPMC had serious concerns regarding its relationship with defendant and

that UPMC was investigating certain marketing fund expenditures made by defendant on

UPMC’s behalf while O’Connor was still with UPMC—expenditures which plaintiff

authorized and which, as noted above, were not provided for in UPMC’s version of the

contract. These expenditures included the purchase of a crew boat for the high school

rowing program of which O’Connor’s son had been a member, and of season tickets to

the Pittsburgh Steelers. In June 2006, UPMC arranged a meeting with plaintiff’s

supervisor to discuss this situation and asked that plaintiff not attend. At this meeting,

UPMC apprised defendant of the differences between the two versions of the contracts;

plaintiff had not notified defendant of the existence of the different versions prior to this
 According to plaintiff, Dillon (1) called plaintiff “the old man in the group” in March 2

2005 during their first meeting, (2) said to plaintiff in November or December 2005,

“Listen, old man, I know you’re lying to me,” and (3) called plaintiff a “legacy liability”

and said that he “could hire two or three people for what [plaintiff] made” during a

meeting on February 3, 2006; and Sarneso (1) told plaintiff during a meeting sometime in

2005 that “the job has passed [you] by” and that “younger key account managers can

work rings around you,” and (2) told plaintiff during a meeting on June 14, 2005 that he

“did not fit the mold for a trainer.”

 According to Flynn, the notation was made because plaintiff’s age was relevant to the 3

severance package that would be offered to plaintiff; plaintiff disputes this explanation,

contending knowledge of plaintiff’s exact age was not necessary to defendant’s

severance-package assessment.

4

meeting. When subsequently asked by defendant to explain the existence of the two

versions of the contract, plaintiff offered multiple incomplete and contradictory

responses. One week after its meeting with UPMC, defendant terminated plaintiff’s

employment.

Plaintiff filed suit against defendant, claiming it fired him because of his age in

violation of the ADEA. Plaintiff pointed to the following evidence to substantiate his

claim of discrimination: comments made over the course of his last two years of

employment with defendant by two of his supervisors, Bill Dillon and Lisa Sarneso, who

were both involved in the termination decision; a handwritten notation indicating 2

plaintiff’s birth date and age that was made on plaintiff’s computer-generated personnel

profile by Patrick Flynn, another individual involved in the termination decision, shortly

before that decision; Dillon’s issuance of a “below target” performance evaluation to 3

plaintiff in October 2005, the first that plaintiff had received in his time working for
5

defendant, and plaintiff’s consequent placement on a performance improvement plan; and

the timing of the hiring of plaintiff’s replacement. According to plaintiff, defendant’s

reliance on its Code of Conduct in its termination decision was simply a pretext for its

actual, discriminatory motivation.

Defendant filed a motion for summary judgment. The District Court, applying the

McDonnell Douglas burden-shifting framework to analyze plaintiff’s claim, found that

plaintiff had made a prima facie showing of discrimination: namely, that plaintiff was a

member of a class protected under the ADEA, was qualified, suffered an adverse

employment action, and was replaced by someone sufficiently younger to raise an

inference of discrimination. The court also found defendant had met its burden of

producing a legitimate nondiscriminatory reason for its termination of plaintiff—his entry

“into two materially different contracts with the same customer on the same day, giving

rise to an appearance of impropriety, and his multiple, incomplete and contradictory

explanations when questioned about the two contracts.” The court noted that “[n]ot only

did this conduct arguably violate the conflicts of interest and business gifts and payments

subsections of the conducting business with integrity section of defendant’s code of

conduct, it also put into jeopardy defendant’s business relationship with a major account.” 

Lastly, the court determined plaintiff had failed to put forth evidence that, when viewed in

the light most favorable to him, would permit a reasonable factfinder to conclude that

defendant’s proffered reason was pretextual and that plaintiff had been unlawfully
 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction 4

under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s grant of

summary judgment, and we review the facts in the light most favorable to the

non-movant, plaintiff in this case. Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009). 

“The judgment sought should be rendered if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

fact and that [defendant is] entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c).

 “An act or omission is not regarded as a cause of an event if the particular event 5

would have occurred without it.” Gross, 129 S. Ct. at 2350 (quotation marks and citation

omitted).

6

discriminated against. Accordingly, the court granted defendant’s motion for summary

judgment. This timely appeal followed.4

The ADEA prohibits employers from discriminating against “any individual . . .

because of such individual’s age.” 29 U.S.C. § 623(a)(1). “[A] plaintiff bringing a

disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the

evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” 

Gross v. FBL Fin. Servs., Inc., 129 S Ct. 2343, 2352 (2009).5

On appeal, plaintiff does not challenge the District Court’s finding that, under the

McDonnell Douglas framework, defendant has met its burden of producing a legitimate

nondiscriminatory reason for its decision to terminate him. Plaintiff claims, however, that

he has put forth sufficient evidence to discredit defendant’s proffered reason as pretextual

and to defeat defendant’s motion for summary judgment. We disagree. First, we do not

believe plaintiff has “demonstrate[d] such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for its
7

action that a reasonable factfinder could rationally find them ‘unworthy of credence.’”

Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997) (en banc)

(quotation marks omitted) (quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)). 

As the District Court noted, “here there is substantial undisputed evidence of record that

supports defendant’s proffered reason for plaintiff’s termination,” namely, “1) [plaintiff]

signed two different versions of the PBG/UPMC Contract on the same day, . . . 2) he

never told his supervisors about the two different versions until after UPMC brought the

issue to PBG’s attention, 3) UPMC representatives were upset with Connolly, and 4)

Connolly gave PBG representatives multiple, incomplete and contradictory answers to

questions about why two different versions existed.” Plaintiff points to evidence, such as

statements made by O’Connor in his 2007 deposition, that lends insight into the

circumstances surrounding the two contracts, the marketing fund expenditures, and

aspects of plaintiff’s conduct with respect to them, but as the District Court found, there is

no indication that any of this information was available to defendant when it made its

termination decision. Plaintiff also claims defendant has changed its proffered reasons

for his termination, thereby undermining their legitimacy, but we fail to see any such

inconsistency. Nor do we agree with plaintiff that defendant has failed to demonstrate

adequately how plaintiff’s entry into two different contracts, his authorization of

expenditures that were not provided for in UPMC’s version of the contract and that

seemingly inured to O’Connor’s personal benefit, and his failure to bring this situation to
8

defendant’s attention and provide a credible explanation for it, implicate defendant’s

Code of Conduct, particularly in light of the information available to defendant at the

time of the termination decision. 

We also agree with the District Court that the evidence offered by plaintiff to

support his claim of discrimination “lack[s] probative force in light of the undisputed

evidence of record relating to the stated bases for the termination.” Plaintiff claims the

District Court failed to accord the comments made by Dillon and Sarneso, and the age

notation made by Flynn, sufficient weight. As the District Court recognized, Dillon and

Sarneso’s comments do not all suggest potential age-related bias, and those that might

were made months before defendant’s decision to terminate plaintiff and outside the

context of that decisionmaking process. See Fuentes, 32 F.3d at 767 (“‘Stray remarks by

non-decisionmakers or by decisionmakers unrelated to the decision process are rarely

given great weight, particularly if they were made temporally remote from the date of

decision.’” (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d

Cir. 1992))). The age notation on plaintiff’s personnel profile indicates that individuals

involved in the termination decision were aware of plaintiff’s age at the time of that

decision. The notation does not, in itself, manifest discriminatory animus, though it may

be relevant to such a showing when considered in light of other evidence. See, e.g.,

Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir. 1994). We do not believe,

however, that the evidence presented in this case, considered as a whole, is sufficiently
 In light of this determination, we need not reach defendant’s contention that the 6

District Court erred in concluding plaintiff’s replacement was sufficiently younger than

plaintiff to raise an inference of discrimination at the prima facie stage of the McDonnell

Douglas framework.

9

probative to save plaintiff’s ADEA claim from summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986) (“If the evidence is merely colorable, or

is not significantly probative, summary judgment may be granted.” (citations omitted)). 

That is, when we view all of the evidence in the light most favorable to plaintiff, we do

not believe a reasonable factfinder could conclude that plaintiff, given his conduct with

respect to the UPMC contract and given the information available to defendant at the time

of its termination decision, would not have been terminated but for his age. See Gross,

129 S. Ct. at 2352. Accordingly, we will affirm the judgment of the District Court. 6