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w . v i l l a no va . e du/thir dc ir c uit_2004/251NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT
No. 03-2165

THOMAS MCGI VERN,

Appellant
v. MEADOWINK FARMS, I NC.

t/d/b/a MEA DOW INK GOLF C OURSE

On A ppeal from the Un ited States District Co urt for the We stern D istrict of P enns ylvania (D.C. Civi l No. 00-cv- 01349) District J udge: Hon. W illi am L. Standish
Submitte d Under Third Circ uit LAR 34.1(a)

October 4, 2004 Be for e: S LO VI TE R, B EC KE R a nd S TA PL ET ON , Circu it Judges

(Fil ed: October

6, 2004)
OPINI ON OF THE COURT1 The D istrict Court had jurisdiction p ursuant to 28 U.S.C . §§ 1331 , 1367; this cou rt

has jurisdi ction ove r the l ower court’ s finalorder pur suant t o 28 U.S.C. § 1291. 2 SL OV ITE R, Circu it Judge
. Appellant Thom as McG ivern, a former employee of Appellee Meado wink Farms, Inc. ( “Meadowink”), appeal s from the j udgment entered by t he District Court

following a bench tri al in f

avor of Meadowink on McG ivern’ s clai ms under the Age Discrimination in Employ ment Act (“ADEA”), 29 U.S.C. § 621 et seq. , and the Pennsy lvania Human Relati ons Act, 43 Pa. Cons. Stat . § 951 et seq . 1 I. M cG ivern w as hire d by M eado win k, w hich o perate s a pu blic go lf cou rse in M urrysville, Pe nnsylva nia, in M ay 1991 as a g roun ds-cre w w orke r for th e upc om ing g olf
season. Meadowink’s decisi on to hire McGivern was based, at least in part , on the fact that McGivern poss esses carpentry and gene ral “handyman” ski lls . In August 1992, M cG ivern s oug ht, and receiv ed, an increa se in h is hou rly wag e to $9 .00. H e justifie d this raise because of his w ork on se veral projects that had required him to use his carpe ntry skil ls and manyof his own tool s. Therea fter, McG ivern worked on s everal project s that utili zed his handyman skills, saving Mead owink the cost of outsourcing those projects. The D istri ct Court found that by fall1992 M cGivern was on e of only two groundscr ew me mbe rs who wer e c la ss if ie d by Mead owi nk a s “ fu ll -tim e s ea so na l e mpl oy ee s. ” As such, McGivern worked a l onger seas on than the other gr ounds-cre w members, and was eligible for certain ben efits, such as participation in M eadow ink’s profit-sharing p lan. In3

con tr as t, Meado win k’ s ot her gr oun ds- cr ew memb er s were cl as si fi ed a s “ part- ti me
seaso nal em ployees,” wh o w orke d a sh orter se ason and w ere no t eligible f or the b enef its enjoyed by t

he full-ti me seasonal employees. In Febru ary 1995, M eadow ink hired Joyce A nn M iller as Operations M anager. In an effort to increase Meadowink’s profi tabil ity , Mill er revi ewed the hourl y wages of Meadowink’s employe es, i ncluding McGivern’ s then hourly wage of $10.00. She conclud ed that it was m ore efficient fro m a bu siness standpo int for M eadow ink to hire outsid e con tractors to perfo rm sp ecial p rojects a nd th at grou nds-c rew mem bers sh ould concentr ate on their principa l assi gnment – mainte nance and upkeep of the golf cour se – and should not

be used on speci al proj ects. As a result , and with the concurrence of the other manager s at Meadowink, McGivern’s pos iti on was eliminated and he was not rehired for the 1997 golf seas on. When M cGivern was informed that he was not being rehired because his posi tion as a full -ti me seasonal e mployee was being eli minated and t hat Meadowink could no long er aff ord to pay him an ho urly wa ge of $10 .00, he beca me a gitated and o ffere d to work for Meadowink for a reduced hourly wage of $9.00. Mill er res ponded by s tati ng, “Try around $4.00 an hour ,” a st atement t he District Court

found faceti ous and not an offe r of co ntinue d em ployme nt. At the ti me of Meadow ink’s de cisi on not to rehire McGivern, he was fifty -eight year s old. In 1996, McGivern’s final year of employ ment with Meadowink, Meadowink4

employe d thirty indivi duals who were over forty year s old and t herefore unde r the protect ion of the ADE A. 29 U.S.C. § 631(a ). Of thes e thir ty , seventeen were older than M cG iver n; th ree o f the se se ven teen we re m em ber s of M cG iver n’s g rou nds crew . Following t

he decisi on not to rehire McGivern, Meadowink hired four new employees as grounds-crew workers, none of w hom w as older than forty ; two of these workers were under twenty y ears of age. The Distri ct Court f ound that t

hese employ ees
wer e cl as si fi ed a s part -time se as ona l wo rk er s a nd that Meado win k di d no t h ir e a f ul l- ti me seasonal w orker after its decision n ot to rehire M cGive rn. Thus, the D istrict Court concluded, as a matt er of fact , that Meadowink did not r eplace McGivern. As a result

of this determi nation, the Dist rict Court found that McGivern had fail ed to estab lish a pr ima f acie ca se of discrim ination . Altern atively, the D istrict Co urt, assuming arguendo that McGivern had es tabli shed a pri ma facie cas e of age discrim ination , conc luded that M cG ivern h ad of fered insuf ficien t evide nce to mee t his burden of showing that Meadowink’s art iculated le giti mate, nondi scri minatory reason for its decisio n no t to rehire M cG ivern f or the 1 997 golf s easo n w as pre textua l. Althou gh the D istrict Court found that Me adow ink’s decision to n ot rehire McG ivern was l argely

driven bybudgetary

concerns, it al so found that the deci sion was further influen ced by two additional factors. F irst, the District Court noted th at Mc Givern had suf fered sev eral work -place injuries and had also n egligently injured a cow orker –
occurren ces that led som e at M eadow ink to view Mc Givern as a safety risk. Mo reover,2 On appeal, nei ther par ty addresse s speci fical ly McG ivern’ s clai m under the Pennsyl vania Human Relati ons Act, 43 Pa. Cons. Stat . § 951 et seq . At le ast i n the context of this action , ho wever , that st at ute is more -or -l ess coex te nsi ve wi th t he ADEA and , ther efo re, w e ne ed n ot ad dre ss it se par ately. See Simpson v. Kay Jewelers , Div. of 5 the Dist rict Court found that McGivern, on one occa sion, had been invol ved in a confrontation wit

h his supervisor. Although the Dis tri ct Court c oncluded that nei ther of these f actors , either alo ne or in com binatio n, w ould have resulted in a de cision n ot to rehire McGivern, thes e factor s did pl ay s ome role i n the deci sion. In sum, the District Court found, a s a matte r of fact , that Meadowink’s deci sion not to rehi re McGivern was total ly unrelated to McGivern’s age
. The Distri ct Court e ntered j udgment in favor of Meadowink. McG ivern fi led a timely app eal. II. Following a benc h tri al, this court has plenary review of a di stri ct court ’s choi ce and interpretation of legal standards, as well as the district court’ s applicati on of those standar ds to the facts of the cas e. We review thedist rict court’ s findi ngs of fact f or clear
erro r. Beta Spaw n, Inc. v. Fee Transp. Servs. , 250 F .3d 21 8, 223 (3d C ir. 2001 ); see also Fed. R . Civ. P. 52(a). McG ivern ac knowledges that the Dist rict Court properly selected, i nterpreted, and applie d the burden- shifting framework of McD onnell Dougla s Corp. v. Green , 411 U. S. 792 (19 73)
. See g enera lly Fakete v. Aetna, Inc
. , 308 F.3d 335, 338 n.3 (3d Cir . 2002) (“[T]he McD onnell Dougla s framew ork app lies in AD EA cases.”). 2 Instead, M cGive rnSterl ing, I nc. , 142 F.3d 639, 644 (3d Cir. 199 8). 6 chall enges the Dis tri ct Court’ s factua l findi ng respecting the nature of hi s employ ment and th e D istrict Co urt’s atten dant f actua l findin g that M eado win k did not rep lace h im wit h no nm em ber s of his p rote cted clas s af ter h is term inati on. To p revail o n an A DE A c laim, a p laintiff m ust sho w th at his ag e “‘ac tually motivat ed’” and “‘ had a determinati ve infl uence on’” the employ er’s de cisi on to fire or not hire him
. Reeves v. Sander son Plumbing Prods ., I nc. , 530 U.S. 133, 141 (2000) (quoti ng Hazen Paper Co. v. Bi ggins , 507 U.S. 604, 610 (1993)). An AD EA plainti ff can
me et thi s bu rde n (1 ) by pr ese ntin g di rect e vid enc e of disc rimi natio n, see Price Waterhouse v. Hopkins , 490 U.S. 228 ( 1989), or (2) bypresenting indi rect e vidence of discrimination that

sati sfies the famil iar t

hree-s tep fra mework of McD onnell Dougla s . See Keller v. Orix Credit Allianc e, Inc. , 130 F .3d 11 01 (3 d C ir. 1997 ) (en b anc). In this case, McGivern’ s case pr oceeded under t he McD onnell Dougla s framework, which requires a plai ntiff

to fir st est ablis h a prima faci e case of di scri minati on, aft er which the burden shi fts t o the employ er to ar ticul ate a l egiti mate and nondis criminatoryreason for its decisi on. If t

he employ er articulates suc h a reason, the inf erence of di scri minati on
ra ise d b y th e p rim a f ac ie s ho w in g f all s a w ay a nd th e p lai nt iff m us t p ro ve by a preponderanc e of the evi dence that the employ er’s proffered re ason was actual ly a prete xt for disc rimi natio n. Sarull o v. Unite d States Postal Serv. , 352 F.3d 789, 797 (3d Cir. 2003) (p er curiam).7

It is not di spu te d he re th atMcGiv er n sati sf ie d the f ir st th re e el emen ts of t

he p ri ma facie case u nder McD onnell Dougla s , i.e
. , he was withi n the protected cl ass; he was qualif ied for t he position at i ssue; and he was fired or not rehi red despi te his qualif ication for the job. T he parties disagre e, how ever, on w hether M eadow ink replaced Mc Givern wit h an em plo yee w ho w as n ot w ithin the p rote cted clas s. Cf. Sarull o v. U.S. Pos tal Serv. , 352 F.3d 789, 798 n.7 (3d Cir . 2003) ( noting t hat Title VII pl ainti ff need not show that s /he was repl aced by someone outsi de protec ted cl ass to prove prima faci e case of discrim ination if plain tiff sho ws th at em ployer co ntinue d to se ek ou t individ uals w ith similar qualifications). At trial, Mea dow ink did no t dispute the fact that af ter its decision not to rehire Mc Givern for the 19 97 seaso n, it hired four add itional grounds -crew w orkers w ho w ere not m emb ers of the pro tected class. T he D istrict Co urt, altho ugh ackn ow ledgin g the p osttermination hi res, found that McG ivern was a ful l-time seasonalemploye e rathe r than a mere grounds- crew worker and, t herefore, that Meadowink did not in fact replac e McG ivern. Mc Givern argued in th e District Cou rt and now on app eal that he w as a mere grounds-crew worker, that Meadowink formulated the “full -ti me seasonal e mployee ” designation only in response to this l itigation, and that byhiring the additi onal workers, Me adow ink did inde ed replace h im w ith nonm embe rs of the protec ted class. In supp ort of this argument, McG ivern notes that his employ ee folder

terms hi s employ ment as8

“Golf Course,” that Meadowink described his employment in terms such as “l aborer on golf c ourse ” or “g roun ds m ainten ance ” in its rep orts filed with pub lic hea lth and safety entities, an d that th e prep rinted w eekly time shee ts prep ared b y Me adow ink fo r his comp le ti on a nd s ubmi ss io n ha d no catego ryfor “ha ndy man, ” “c arpen te r, ” or “fu ll -time seasonalemploye e.” He als o testifie d at trial t hat his primary

duties at Meadowink revolved a round the routine ma intenance o f the golf co urse and th at he did the ca rpentry tasks f or Meadowink on his own time, not in t he regular course of his Meadowink employm ent for w hich M eadow ink paid him separately. McG ivern’s direct supe rvisor, Don LiPrado, t esti fied that, although McGivern di d engage in some car pentrywork for M eado win k, this w ork n ever in terfere d w ith his p rincipa l job, m aintain ing the golf
course. Referencing t

hese documents and testimonies, McG ivern mai ntains that t he Distri ct Court c learl y er red in maki ng the fi nding that he was a “full -ti me seasonal employe e,” and t

hat Meadowink did not fi ll hi s position. McG ivern’ s argument i s unavail ing. At t he bench trial, both Susan Tanto, Meadowink’s General Manager, a nd Miller, the Operations Manager, testi fied that Meado win k i nde ed c la ss if ie d McGi vern, al ong with on e ot her empl oy ee, as “fu ll -time seasonal em ployees.” Likew ise, LiPrado testified tha t Mea dow ink classified M cGive rn as a full -ti me seasonal e mployee . Perhaps more import antly , the evidence at tri al showed that M cG ivern’ s em ployme nt, wh ateve r its nom encla ture, ha d fea tures th at serv ed to differe ntiate him from the meregrounds-crew employees , most par ticul arlythat he9

wo rked ten m onth s out o f the yea r. The emp loyees M eado win k hired for the 199 7 go lf season di d not work McGivern’s t en-month seas on. At t rial, T anto exp laine d th at M ead ow ink use d th e term s it us ed f or M cG iver n, i.e
. , “labore r,” “gol f course” or as a member of “grounds maintenance ,” t o descri be any employe e that

did not occ upy a s upervis ory position. Thus, the exi stence of several docum ents describing Mc Givern in these terms d oes not ren der the D istrict Court’s decision that McGivern was a fu ll-time seasonal employee clearl y erroneous. Moreover, thetri al rec ord is replet e with ref erences to the vari ous carpent ry and handyman projects McG ivern completed for Meado wink. Am ong other projects, M cG ivern e nlarge d M eado win k’s pa rking lot, repa ired stairs , installed a shelf in the go lf clu bh ou se , an d c on str uc ted a s af ety w all . A nd , ap ar t fr om M cG iv er n’ s o w n t es tim on y, there i s no evidence that Meadowink paid McGivern se parate ly for thes e tasks . Indeed, at an ulti mate hourl y wage of $10. 00, McGivern enjoy ed a signi ficantly higher r ate of compensati on than mere gr ounds-cre w employees whose ave rage hourl y wage in 1996
wa s $6.9 1. Th e D istrict Co urt did n ot clea rly err in attribu ting this h igher p ay rate to McG ivern’ s speci aliz ed and more highl y- skil led duti es and obli gations . On this record, the Dist rict Court’s de termination t hat McGivern was a full -ti me seasonal e mployee was not cle arlyerroneous , nor was i ts attendant finding t hat Meadowink did not replace McG ivern with nonmem bers of his protected clas s.10 III. The Distri ct Court f

urther determi ned that , ass uming arguendo that McGivern had rais ed a prima fac ie case of age disc riminat ion, he proffered i nsuffici ent evi dence to r ebut M eado win k’s articu lated leg itimate a nd n ond iscrimin atory reaso n fo r its decis ion. T his
wa s also a fa ct-b ase d de term inati on t hat w e rev iew for clea r erro r. Robinson v. Lehman , 771 F.2d 772 , 780 ( 3d C ir. 1985 ). The clearly erro neou s stand ard o f revie w is e spec ially appropri ate where, as here, an appell ant’s arguments ce nter primaril y on the dist rict
cou rt’s re solu tion of w itnes s cre dib ility issu es. Hill v. Beyer , 62 F.3d 4 74, 482 (3 d Cir. 1995). The emp loyer satisfie s its burd en of prod uction by introdu cing e viden ce w hich, if taken as t

rue, would permit the conclusi on that t here was a nondis criminatoryreason for its decisi on. “The employ er need not prove that

the te ndered rea son actua lly mo tivated its behavior, as thr oughout thi s burden-s hifti ng paradigm the ulti mate burden of pr oving intent ional di scri minati on always rest s with the plai ntiff .” Fue ntes v . Persk ie , 32 F.3d 759 , 763 ( 3d C ir. 1994 ) (em phas is in orig inal). Th us, on ce the emp loyer ans we rs its “relative ly light burd en” b y articulating a legitim ate rea son f or the u nfav orab le employment decision, the burden of production rebounds to the plaintiff, who then must sho w, b y a pre pon der anc e of the e vid enc e, tha t the e mp loyer’ s ex plan ation is pre textu al. Id. In thi s case, Meadowink contends that its decisi on to not rehire McGivern was11

based on budgetary concerns. Specifi call y, Meadowink maintains t hat it determi ned that it would be morecost- effecti ve to hire outsi de contra ctors to perform special project s than to ret ain McGivern and have hi m complete such t asks. Moreover, Meadowink decided not to hi re McGivern as a part -ti me seasonal worker at a l ower salary because, bas ed on Miller’ s prior

experie nces, i t beli eved that such a cours e of acti on would have generated negative consequences. McG ivern argues that

the witne sses who tes tifi ed at the bench trial on Me adow ink’s beha lf respecting its asserted rea son for the decision to no t rehire McGiv er n l ack ed c re di bi li tyandth atMeado win k on lybeg an c al li ng h im a“fu ll -time
sea son al em plo yee” to obs cur e the fac t that it ref use d to reh ire h im b ase d up on h is ag e. He theref ore arg ues th at the D istrict Co urt clea rly erred in f inding that he had f ailed to carryhis burde n of showing that Meadowink’s arti culat ed nondiscriminat ory reason for its decisio n w as pre textua l. On this re cord, des pite t he vigorous arguments made byMcG ivern’ s counsel in her appe llate brief , we c anno t hold th at the D istrict Co urt’s de cision th at M cG ivern f ailed to sati sfy his burde n of showing that Meadowink’s arti culat ed, l egiti mate and nondiscriminat ory reason was pre textua l was clearlyerroneous . The District Court, a fter reviewing the eviden ce and v iewing the deme anor and comp osure of M eadow ink’s witnesses, cred ited Me adow ink’s proffe red rationale for its dec ision to not rehire McG ivern: “Based on the evi dence prese nted duri ng the non-j ury tri al, the court finds thatdefendant’ s decis ion not to rehire plai ntiff for the 1997 gol f season was based on bud getary co ncern s and wa s totally unre lated to plaintiff ’s age .” Ap p. at 11 a. Th e clear ly
erroneous standar d of revie w allows onlyan assess ment of whether t here is enough evid enc e on the r eco rd to sup por t a dis trict c our t’s fin din gs, Robinson , 771 F.2 d at 7 81. There is i n this case. Because the Dis tri ct Court’ s findi ng on this point can “be reasonably inferred from the entire t

rialrecord, ” Scully

v. US Wats, Inc. , 238 F .3d 49 7, 506 (3d C ir. 2001 ), we w ill affirm the jud gm ent.