1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-1995

Brewer v. Quaker State Oil Rfng. Corop.

Precedential or Non-Precedential:

Docket 95-3101

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Recommended Citation

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 95-3101 

 

JUDSON C. BREWER, 

 Appellant 

v. 

QUAKER STATE OIL REFINING CORPORATION; 

QUAKER STATE CORPORATION 

 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. No. 93-cv-00072E) 

 

Argued October 19, 1995 

BEFORE: SCIRICA, COWEN and ROTH, 

Circuit Judges

(Filed December 14, 1995) 

Samuel J. Cordes (argued) 

Ogg, Jones, DeSimone & Ignelzi 

245 Fort Pitt Boulevard 

Pittsburgh, PA 15222 

 COUNSEL FOR APPELLANT 

 Judson C. Brewer 

Peter D. Post (argued) 

Robert B. Cottington 

Reed, Smith, Shaw & McClay 

435 Sixth Avenue 

Pittsburgh, PA 15219-1886 

 COUNSEL FOR APPELLEE 

 Quaker State Oil Refining Corporation; 

 Quaker State Corporation 

Robert J. Gregory 

Room 7032 

Equal Employment Opportunity Commission 

1801 L Street, N.W. 
2 

Washington, D.C. 10507 

 COUNSEL FOR AMICUS-APPELLANT 

 Equal Employment Opportunity Commission 

 

 

OPINION

 

COWEN, Circuit Judge. 

 Plaintiff-appellant Judson C. Brewer appeals the 

district court's grant of summary judgment in favor of his 

employer, Quaker State Oil Refining Corporation and Quaker State 

Corporation ("Quaker State"), on Brewer's Age Discrimination in 

Employment Act ("ADEA") claim, 29 U.S.C. § 623 (1988), and the 

dismissal of his pendent state-law claim brought under Michigan's 

anti-discrimination statute, the Elliott-Larsen Civil Rights Act, 

Mich. Comp. Laws § 37.2101-2804. Because the record reflects a 

genuine issue of material fact regarding whether Quaker State's 

asserted nondiscriminatory reasons for discharging Brewer are 

pretextual, we will reverse the district court's entry of summary 

judgment in favor of Quaker State and remand the matter for 

further proceedings. 

I. 

 Brewer worked for Quaker State as a sales 

representative from 1968 until the time of his discharge in March 

1992, at the age of fifty-three. He worked in the Pittsburgh 

office until it closed in 1989. During the course of his 

employment in Pittsburgh, Brewer was supervised by two different 

division managers, Bruce Drummond and Michael O'Donnell. During 
3 

their respective tenures, both Drummond and O'Donnell encountered 

certain problems with Brewer's performance. For example, 

Drummond stated that Brewer's clients complained that they had 

run out of oil or had not seen their sales representative in some 

time. In January 1989, O'Donnell placed Brewer on a ninety-day 

probation for similar performance deficiencies, including 

customer complaints about running out of oil, poor follow-up with 

projects, inaccurate and incomplete paperwork, short work days, 

and lack of organization. Shortly after Brewer completed his 

probationary period, he was transferred to the Detroit division. 

 District Manager Paul Pfauser supervised Brewer in 

Detroit. In 1990 Pfauser gave Brewer acceptable performance 

ratings, but criticized him for poor planning. Pfauser advised 

Brewer that he needed to work more closely with his client 

accounts and set higher standards for himself. At the end of 

1990 Brewer received a sales bonus for exceeding the company's 

sales quota for that year. 

 In May 1991, shortly before his second annual review 

under Pfauser's supervision, Pfauser notified Brewer that various 

facets of his performance required improvement. Pfauser 

counseled Brewer to be more efficient, to follow-up with requests 

both from his customers and from management, and to improve the 

timeliness and completeness of his sales reports. In his formal 

evaluation in June 1991, Brewer received marginal or unacceptable 

ratings in all categories. 

 In August 1991, Brewer was placed on a ninety-day 

probation for his performance deficiencies. At that time, 
4 

Pfauser criticized Brewer for performing poorly in the areas of 

client communications and organization. In December 1991, Brewer 

again exceeded the company's sales quota and received another 

bonus. Brewer was the only salesperson in the Detroit region to 

receive such a bonus for both 1990 and 1991. 

 Brewer's personnel file for the years prior to 1990 was 

lost. However, it is not disputed that Brewer's mean performance 

evaluation rating from 1987 through 1990 was "3" out of a 

possible "5", which translates into "competent" by Quaker State's 

performance standards. Factoring in his evaluation for 1991, 

Brewer's overall average for 1987 to 1991 was 2.9. 

 At the end of the ninety-day probation, Pfauser 

repeated his concerns that Brewer was spending too little time in 

his territory and not adequately communicating with customers. At 

this time Brewer's probationary period was extended for an 

additional sixty days. On February 18, 1992, Pfauser wrote a 

memorandum to Brewer documenting performance problems, including 

Brewer's misprocessing orders, and failure to advise his accounts 

of credit problems. 

 Brewer challenged Pfauser's appraisal, commenting that 

his performance had improved. Brewer also has claimed that 

Pfauser was "nitpicking," and that the problems were the result 

of petty misunderstandings, or were not really problems at all. 

Nonetheless, in the days that followed the February 18, 1992 

memorandum, Pfauser sought and obtained approval to terminate 

Brewer's employment. Brewer was discharged on March 9, 1992, and 
5 

this lawsuit ensued. The district court granted summary judgment 

against Brewer. 

II. 

 We have jurisdiction pursuant to 28 U.S.C. § 1291 to 

review the final order of the district court, which exercised 

jurisdiction under 29 U.S.C. § 626(c)(1), 28 U.S.C. §§ 1331 and 

1343(a)(4), and supplemental jurisdiction pursuant to 28 U.S.C. 

§1367. 

 On review of a district court's grant of summary 

judgment, we apply the same test the district court should have 

applied initially. Sempier v. Johnson & Higgins, 45 F.3d 724, 

727 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995). Summary 

judgment is appropriate only when the admissible evidence fails 

to demonstrate a genuine issue of material fact and the moving 

party is entitled to judgment as a matter of law. Fed. R. Civ. 

P. 56(c). When the nonmoving party bears the burden of 

persuasion at trial, the moving party may meet its burden on 

summary judgment by showing that the nonmoving party's evidence 

is insufficient to carry its burden of persuasion at trial. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 

2552-53 (1986). Thereafter, the nonmoving party creates a 

genuine issue of material fact if it provides sufficient evidence 

to allow a reasonable jury to find for him at trial. Anderson v. 

Liberty Lobby Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 

(1986). In reviewing the record, the court must give the 

nonmoving party the benefit of all reasonable inferences. 
6 

Sempier, 45 F.3d at 727; Colgan v. Fisher Scientific Co., 935 

F.2d 1407, 1413 (3d Cir.), cert. denied, 502 U.S. 941 (1991). 

III. 

 The ADEA prohibits age discrimination in employment 

against any person over age forty. 29 U.S.C. § 623(a)(1). 

Because the prohibition against age discrimination contained in 

the ADEA is similar in text, tone, and purpose to that contained 

in Title VII, courts routinely look to law developed under Title 

VII to guide an inquiry under ADEA. See, e.g., Maxfield v. 

Sinclair Int'l, 766 F.2d 788, 791 (3d Cir. 1985), cert. denied, 

474 U.S. 1057 (1986). We follow the evidentiary framework first 

set forth by the Supreme Court in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), subsequently refined 

in Texas Department of Community Affairs v. Burdine, 450 U.S. 

248, 101 S. Ct. 1089 (1981), and recently clarified in St. Mary's 

Honor Center v. Hicks, __ U.S. __, 113 S. Ct. 2742 (1993). 

 In order to establish a prima facie case, Brewer must 

show that he: (1) is over 40; (2) is qualified for the position 

in question; (3) suffered an adverse employment decision; and (4) 

was replaced by a sufficiently younger person to permit an 

inference of age discrimination. Sempier v. Johnson & Higgins, 

45 F.3d 724, 727 (3d Cir.), cert. denied, 115 S. Ct. 2611 (1995). 

This showing creates a presumption of age discrimination that the 

employer can rebut by stating a legitimate nondiscriminatory 

reason for the adverse employment decision. Hicks, __ U.S. at 

__, 113 S. Ct. at 2747; Sempier, 45 F.3d at 728. The plaintiff 
7 

then has the opportunity to demonstrate that the employer's 

stated reason was not its true reason, but merely a pretext for 

discrimination. Hicks, __ U.S. __, 113 S.Ct. at 2747; Sempier, 

45 F.3d at 728. 

A. 

 The district court held that the disposition of this 

case turned on the third stage of the McDonnell Douglas

analytical framework because Brewer had established a prima facie

case of age discrimination, and Quaker State had articulated nondiscriminatory reasons for Brewer's discharge. Brewer v. Quaker 

State Oil Ref. Corp., 874 F. Supp. 672, 681-82 (W.D. Pa. 1995). 

We agree with the district court's analysis up to this point. It 

is undisputed that Brewer is a member of a protected class, was 

discharged by Quaker State, and was replaced by an individual not 

within the protected class. Moreover, Brewer was qualified for 

the position of sales representative. He worked as a Quaker 

State sales representative for twenty-three years. During his 

last five years on the job, he received overall evaluations that 

translated into "competent" by Quaker State's performance 

standards. Accordingly, Brewer has established a prima facie

case of age discrimination. 

 Quaker State has also established legitimate, nondiscriminatory reasons for terminating Brewer's employment. 

Pfauser documented continuous performance problems, including 

poor follow-up on customer requests, poor communications with 
8 

clients and with management, too little time spent in his 

territory, and late and ambiguous sales reports. 

 

B. 

 We must next determine whether Brewer has met his 

burden of demonstrating that a factfinder could find that the 

allegedly legitimate reasons proffered for his discharge were 

only a pretext for discrimination in order to survive Quaker 

State's motion for summary judgment. To defeat a summary 

judgment motion based on a defendant's proffer of 

nondiscriminatory reasons, a plaintiff who has made a prima facie

showing of discrimination need point to some evidence, direct or 

circumstantial, from which a factfinder could reasonably either: 

(1) disbelieve the employer's articulated legitimate reason; or 

(2) believe that an invidious discriminatory reason was more 

likely than not a motivating or determinative cause of the 

employer's action. Fuentes v. Perskie, 32 F.3d 759, 763-64 (3d 

Cir. 1994). The factfinder may infer from the combination of the 

plaintiff's prima facie case, as well as its own rejection of the 

employer's proffered nondiscriminatory reason, that the employer 

unlawfully discriminated against the plaintiff and was merely 

trying to conceal its illegal act with the articulated reason. 

See Hicks, __ U.S. at __, 113 S. Ct. at 2749. Thus, if the 

plaintiff has pointed to evidence sufficient to discredit the 

defendant's proffered reason, to survive summary judgment the 

plaintiff need not also come forward with additional evidence of 
9 

discrimination beyond his or her prima facie case. Fuentes, 32 

F.3d at 764. 

 To discredit the employer's proffered reason, the 

plaintiff cannot simply show that the employer's decision was 

wrong or mistaken, since the factual dispute at issue is whether 

a discriminatory animus motivated the employer, not whether the 

employer is "wise, shrewd, prudent, or competent." Fuentes, 32 

F.2d at 765 (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 

983 F.2d 509, 533 (3d Cir.), cert. denied, __ U.S. __, 114 S. Ct. 

88 (1993)). Rather, the nonmoving plaintiff must demonstrate 

such "weaknesses, implausibilities, inconsistencies, 

incoherences, or contradictions in the employer's proffered 

legitimate reason 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] nondiscriminatory reasons." Fuentes, 32 F.3d at 765 (citations and 

internal quotations omitted.). See Ezold, 983 F.2d at 527 

("plaintiff has the burden of casting doubt on an employer's 

articulated reasons for an employment decision")(quoting Billet 

v. Cigna Corp., 940 F.2d 812, 828 (3d Cir. 1991). 

 Brewer has challenged Quaker State's asserted reasons 

for his discharge. First, Brewer's own testimony disputed the 

significance of the problems raised by Pfauser. While Brewer 

challenged the extent and degree of his deficiencies rather than 

their existence, Brewer testified to specific examples of 

Pfauser's errant or misplaced criticisms. Such evidence amounts 

to more than his subjective opinion of his performance. Second, 
10 

Brewer provided evidence that he had succeeded in selling oil for 

nearly twenty-five years in the employ of Quaker State, and for 

the last five years, he was rated "fully acceptable" by Quaker 

State in his evaluations. Third, Brewer provided evidence that 

he received a bonus for surpassing his sales quota in 1990 and 

1991, and was the only salesperson in the Detroit region to 

exceed his or her sales quota for those years. 

 The district court discounted this evidence, reasoning 

that Brewer cannot pick and choose which employment standard he 

will meet. The district court reasoned that "although 

plaintiff's average numerical rating and sales bonus may be 

somewhat contradictory with the fact of his termination, the 

court does not believe that they give rise to such 'weaknesses, 

implausibilities, inconsistencies, incoherences, or 

contradictions' in Quaker State's explanation that a reasonable 

factfinder could rationally find the explanation unworthy of 

credence." Brewer, 874 F. Supp. at 682. We disagree that the 

"somewhat contradictory" evidence does not demonstrate a triable 

issue of fact. On summary judgment, it is not the court's role 

to weigh the disputed evidence and decide which is more 

probative. Sempier, 45 F.3d at 731. The fact that Brewer 

received a bonus three months before he was fired and was the 

only sales representative in the Detroit region who received such 

a bonus is contradictory to Quaker State's admission that the 

most important standard of job performance is sales. 

 Quaker State's Executive Vice President of Sales, 

William Marshall, stated that sales volume is "extremely 
11 

important in evaluating a salesperson," and represents "the best 

simple measure" of a salesperson's performance. App. at 200, 

203. Quaker State's counsel also acknowledged this fact at oral 

argument before this court. Indeed, the volume of sales may 

always be the primary measure of a salesperson's performance. See

Kiliszewski v. Overnite Transp. Co., 818 F. Supp. 128, 132 (W.D. 

Pa. 1993) (evidence that a person performed well in the 

traditional role of salesperson precluded summary judgment 

despite employer's claim that the plaintiff suffered from 

efficient time-management deficiencies). To segregate job 

performance into the neat categories of sales and organizational 

skills defies the reality of the role of a salesperson in a 

company. 

 We recognized that an employer may have any reason or 

no reason for discharging an employee so long as it is not a 

discriminatory reason. 

[W]e do not sit as a super-personnel department that 

reexamines an entity's business decisions. No matter 

how medieval a firm's practices, no matter how highhanded its decisional process, no matter how mistaken 

the firm's managers, the ADEA does not interfere. 

Rather, our inquiry is limited to whether the employer 

gave an honest explanation of its behavior. 

McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373 (7th 

Cir. 1992) (citations and internal quotations omitted). An 

employer may have a legitimate reason for firing an employee that 

has nothing to do with that employee's performance of the core 

functions of his or her job. Nonetheless, our role is to 

determine whether a factfinder could reasonably find that the 
12 

employer's stated reason is unworthy of credence. In this case, 

Brewer's deficiencies pale beside his consistently good sales 

performance, inexplicably unaccounted for in his supervisor's 

negative evaluations. A factfinder could find it implausible 

that Quaker State would have fired Brewer for such deficiencies 

when he was successful in the sole area identified by Quaker 

State's own performance incentive program -- sales. 

 In Ezold, 983 F.2d at 509, we held that a district 

court had erred in finding that the employer's explanation for 

denying a promotion to the plaintiff was pretextual. The 

employer claimed that it had denied partnership to the plaintiff 

because of her deficiencies in the area of legal analysis. There 

was no question that the plaintiff suffered from serious 

shortfalls in that area, although she had demonstrated success in 

other areas of the job. It was also clear that the employer 

considered legal analysis to be the critical category of 

performance review. The district court had questioned the wisdom 

of the employer's partnership standards, and we held that "[i]t 

was not for the district court to determine that Ezold's skills 

in areas other than legal analysis made her sufficiently 

qualified for admission to the partnership." Id. at 528. This 

case is distinguishable on its facts. In Ezold, the plaintiff 

suffered deficiencies in the one area deemed critical by the 

employer. Here, in contrast, Brewer had some problems in a few 

aspects of the job. Yet, he performed well in the one area 

deemed by Quaker State to merit a performance bonus. This raises 
13 

genuine issues about the credence of Quaker State's performancebased explanation. 

 It is also questionable why a company would fire the 

only salesperson to receive consecutive annual bonuses in 

response to the same organizational deficiencies that the 

employer had tacitly accepted for over two decades. During the 

twenty-three years that Brewer worked for Quaker State, he 

consistently sold a high volume of oil despite the repeated 

criticisms of other aspects of his job performance. It was not 

until late in his career that Quaker State turned the criticisms 

of Brewer's performance into the basis for adverse action. A 

reasonable factfinder could view Quaker State's belated reliance 

on these criticisms as evidence that tends to show pretext. See

Levin v. Analysis & Technology, Inc., 960 F.2d 314, 317 (2d Cir. 

1992) (employer's claim that plaintiff was terminated because of 

his "poor attitude" did not provide a basis for summary judgment 

where there was evidence that plaintiffs' "irascible nature had 

for many years been accepted by his co-workers and superiors"); 

Giacoletto v. Amax Zinc Co., 954 F.2d 424, 426-27 (7th Cir. 1992) 

(evidence supported a finding of pretext despite employer's claim 

that the plaintiff had "poor interpersonal skills as a manager" 

where the plaintiff "had been kept on as a supervisor for 14 

years despite his abrasive personality and because of his ability 

to produce"); Blalock v. Metals Trades, Inc., 775 F.2d 703, 709 

(6th Cir. 1985) (fact that the employer had legitimate concerns 

with the plaintiff's performance at the time of his discharge was 

not determinative where that "same level of performance" had been 
14 

acceptable to the employer until its consideration of a protected 

criterion). Brewer's testimony disputing the significance of the 

alleged problems, his twenty-three years of consistently good 

sales performance and recent merit bonuses cast sufficient doubt 

on Quaker State's contention that Brewer was discharged because 

of poor job performance in areas which the company had long 

overlooked or tolerated.0 

 Brewer has also provided evidence that in August of 

1991, Wanda Weaver, Quaker State's personnel manager, wrote a 

memorandum to Pfauser summarizing Brewer's performance for the 

last fifteen years. In the memorandum Weaver noted that "Judd is 

53 years old, which presents another problem." App. at 24. The 

district court determined that this statement merely indicated 

Weaver's awareness that, if terminated, Brewer may file an age 

discrimination suit. Although the jury may very well conclude 

that this remark merely reflects an awareness of Quaker State's 

legal obligations, the statement is also subject to competing 

interpretations. Another reasonable interpretation is that 

Brewer's age was a "problem" for Quaker State. On summary 

 

0The dissent states that Brewer has "done nothing to rebut" 

Quaker State's proffered non-sales reasons for firing him. 

Dissent Typescript at 5. The dissent has overlooked evidence of 

Brewer's testimony in which he related specific examples of his 

supervisor's errant or misplaced criticisms. Such evidence 

amounts to more than his subjective opinion of his job 

performance. Of course, unrefuted evidence was also presented 

that Brewer's past performance for twenty years was identical to 

that for which he was fired. It was not until late in his career 

that the criticisms of Brewer's performance were turned into 

reasons for his termination. This evidence goes directly to 

discrediting Quaker State's non-sales related reasons for firing 

Brewer. 
15 

judgment, we must draw all reasonable inferences in favor of the 

nonmoving party. Drawing the inference in Brewer's favor, 

Weaver's statement tends to show a discriminatory animus. In 

viewing the record as a whole, as we must, we conclude that the 

statement is probative, and should be submitted for a jury's 

consideration. 

 Brewer next produced evidence that in March 1990, Jack 

Corn, Chief Executive Officer of Quaker State, discussed two new 

executives in the company newsletter. He stated, "two of our 

star young men in their mid-40s. That age group is our future." 

App. at 26-27. Brewer asserts that this remark is circumstantial 

evidence of Quaker State's preference for younger workers. The 

district court determined that Corn's statement was a "stray 

remark, unconnected with and remote from the decision-making 

process which resulted in Brewer's discharge." Brewer, 874 F. 

Supp. at 683. 

 We have held that 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 the decision. Ezold, 983 F.2d at 545. We 

agree with the district court that the Corn statement is a "stray 

remark" made by a non-decisionmaker and temporally remote from 

the decision to terminate Brewer. The comment was made almost 

two years before Brewer's March 1992 termination. Brewer's 

supervisor testified that he could not recall ever seeing or 

hearing Corn's statement, and there is no evidence of a causal 

link between Corn's statement and Brewer's termination. 
16 

 Though the Corn statement should not be given 

significant or commanding weight, at trial, it may provide some 

relevant evidence of discrimination. We have held that a 

supervisor's statement about the employer's employment practices 

or managerial policy is relevant to show the corporate culture in 

which a company makes its employment decision, and may be used to 

build a circumstantial case of discrimination. See Abrams v. 

Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995) 

(discriminatory statements by nondecisionmakers properly used to 

build a circumstantial case of discrimination); Lockhart v. 

Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989) (same); 

see also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 

(3d Cir. 1993) (court may consider as circumstantial evidence the 

atmosphere in which the company made its employment decisions). 

 Corn's statement may be used as evidence of managerial 

policy. The remark was not an off-hand comment made by a lowlevel supervisor. Rather, the comment was made by the Chief 

Executive Officer in a written newsletter. "When a major company 

executive speaks, 'everybody listens' in the corporate hierarchy, 

and when the executive's comments prove to be disadvantageous to 

a company's subsequent litigation posture, it cannot 

compartmentalize this executive as if he had nothing more to do 

with company policy than the janitor or watchman." Lockhart, 879 

F.2d at 54. 

 Quaker State claims that Corn's statement should not be 

considered evidence at all because it is too innocuous. The 

statement that the mid-40's age group is the company's future may 
17 

indeed be considered a truism -- the future of any business lies 

with its relatively young employees. See, e.g., Smith v. Flax, 

618 F.2d 1062, 1066 (4th Cir. 1980) (statement that "future lay 

in the employer's young Ph.D's" was a truism, and not evidence of 

age discrimination.). Quaker State further asserts that praising 

the youth does not indicate bias against more mature workers. 

See, e.g., Mesnick v. General Elec. Co., 950 F.2d 816, 826 (1st 

Cir. 1991). cert. denied, 504 U.S. 985 (1992). While a 

factfinder could find Corn's comment too abstract to evince age 

discrimination, it may also be considered by the jury as evidence 

of the corporate culture in which the employment decision to 

discharge Brewer was made, and circumstantial evidence of age 

discrimination. We conclude that the Corn statement is relevant 

evidence of age discrimination. 

IV. 

 Brewer next argues that the district court erred in 

refusing to draw an adverse inference from Quaker State's 

inability to produce Brewer's pre-1990 personnel file. The 

general principles concerning the inferences to be drawn from the 

loss or destruction of documents are well established. When the 

contents of a document are relevant to an issue in a case, the 

trier of fact generally may receive the fact of the document's 

nonproduction or destruction as evidence that the party that has 

prevented production did so out of the well-founded fear that the 

contents would harm him. Gumbs v. International Harvester, Inc., 
18 

718 F.2d 88, 96 (3d Cir. 1983); United States v. Charkasky Meat 

Co., 259 F.2d 89 (3d Cir. 1958). 

 For the rule to apply, it is essential that the 

evidence in question be within the party's control. Gumbs, 718 

F.2d at 96. Further, it must appear that there has been an 

actual suppression or withholding of the evidence. No 

unfavorable inference arises when the circumstances indicate that 

the document or article in question has been lost or accidentally 

destroyed, or where the failure to produce it is otherwise 

properly accounted for. See generally 31A C.J.S. Evidence 

§156(2); 29 Am. Jur. 2d Evidence § 177 ("Such a presumption or 

inference arises, however, only when the spoilation or 

destruction [of evidence] was intentional, and indicates fraud 

and a desire to suppress the truth, and it does not arise where 

the destruction was a matter of routine with no fraudulent 

intent."). 

 The district court found that the file was lost in 

connection with the death of Quaker State's in-house attorney, 

and was not destroyed intentionally. Quaker State's in-house 

attorney died of a terminal illness after he took possession of 

the file. Quaker State avers that it has continued to search for 

the file, but to no avail. We cannot say the district court 

applied the incorrect legal standard, nor were its factual 

findings clearly erroneous. The destruction or failure to 

produce the record could have been due to many reasons unrelated 

to the lawsuit. See, e.g., Rogers v. Exxon Research & Eng'g Co., 

550 F.2d 834, 843 (3d Cir. 1977) (refusing to draw an adverse 
19 

inference where destruction of a diary could have been unrelated 

to the lawsuit), cert. denied, 434 U.S. 1022 (1978). The 

district court properly refused to draw an adverse inference. 

V. 

 Brewer has also brought an age discrimination claim 

under the Michigan Civil Rights Act, Mich. Comp. Laws § 37.2101-

2804. The district court held that Brewer failed to establish a 

prima facie case on his state law claim because he provided no 

evidence that Pfauser, or any other decisionmaker at Quaker 

State, was predisposed to discriminate against Brewer on the 

basis of age. Brewer, 874 F. Supp. at 687. 

 The evidentiary burdens for proceeding on an age 

discrimination claim under the Elliott-Larsen Civil Rights Act 

are the same as those used in ADEA cases. McDonald v. Union Camp 

Corp., 898 F.2d 1155, 1159 (6th Cir. 1990). However, in contrast 

to federal law, under Michigan law a plaintiff may establish a 

prima facie case by demonstrating that: (1) he is a member of the 

affected class; (2) that some adverse employment action was taken 

against him; (3) that the person responsible for this adverse 

action was predisposed to discriminate against persons in the 

affected class; and (4) that the person responsible actually 

acted on this predisposition to plaintiff's detriment. Pitts v. 

Michael Miller Car Rental, 942 F.2d 1067, 1070 n.1 (6th Cir. 

1991). 

 A plaintiff may also establish a prima facie case under 

Michigan law using the traditional federal law standard set forth 
20 

in McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. at 1824.0 The 

McDonnell Douglas standard has been adopted by the Michigan 

Supreme Court. McDonald v. Union Camp Corp., 898 F.2d 1155, 

1159-60 (6th Cir. 1990); Matras v. Amoco Oil Co., 385 N.W.2d 586, 

590 (Mich. 1986). Therefore, Michigan law provides that 

establishing a prima facie case of age discrimination varies with 

differing factual situations, and the standard that best fits the 

factual allegations should be applied. Matras, 385 N.W.2d at 

590; Lytle v. Malady, 530 N.W.2d 135, 140 (Mich. Ct. App. 1995). 

 The district court erred in applying only the prima 

facie standard set forth in Pitts, 942 F.2d at 1070, and not the 

McDonnell Douglas standard, which more closely fits the facts of 

this case. Accordingly, the district court's entry of summary 

judgment on the state law claim will be reversed for the same 

reasons that we will reverse the summary judgment entered on the 

ADEA claim. 

 

0A prima facie case as applied in the age discrimination context 

requires a showing that the plaintiff: (1) was a member of a 

protected class; (2) was subjected to adverse employment action; 

(3) was qualified for the position; and (4) was replaced by a 

younger person. 
21 

BREWER v. QUAKER STATE

No. 95-3101 

 

ROTH, Circuit Judge, Dissenting: I respectfully dissent. I 

cannot agree that Brewer's evidence of his sales performance 

rebuts Quaker State's litany of specific reasons for termination 

sufficiently to raise a genuine issue of material fact. I would 

affirm the district court.0

 Unlike the majority, I believe that the district court 

analyzed the case properly and reached a correct result. In 

particular, I disagree with the majority's rebuke that the 

district court weighed disputed evidence. See Majority at 

[typescript at 10]. I conclude that the district court, in 

granting summary judgment, properly focussed on Quaker State's 

articulated reasons for termination and determined that these 

reasons were an adequate, non-discriminatory basis for discharge 

even when considered along with Brewer's acknowledged sales 

record. 

 Our summary judgment inquiry comes flows from the 

Supreme Court's decision in Celotex Corp. v. Catrett, 477 U.S. 

 

0 I have little quarrel with Parts I, II, III.A, or IV of 

the majority's opinion. I disagree with Part III.B, and I would 

not reach Part V. Because I would affirm the district court's 

grant of summary judgment for Quaker State on the federal claim, 

I would remand the state claims to the district court to 

determine whether jurisdiction should be retained pursuant to 28 

U.S.C. § 1367(c)(3). 
22 

317 (1986), which applies equally to McDonnell Douglas

discrimination cases. See Healy v. New York Life Ins. Co., 860 

F.2d 1209, 1219 n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098 

(1989). Under Celotex, the district court must evaluate the 

nonmovant plaintiff's evidentiary showing to determine whether 

the showing raises a genuine issue of material fact. This 

court's past discussions of the degree of proof required to 

survive summary judgment in McDonnell Douglas cases have 

recognized the need for this type of evidentiary evaluation. 

Fuentes v. Perskie provides our most extensive treatment of the 

subject. 32 F.3d 759 (3d Cir. 1994). "[T]o avoid summary 

judgment, the plaintiff's evidence . . . must allow a factfinder 

reasonably to infer that each of the employer's proffered 

nondiscriminatory reasons was either a post hoc fabrication or 

otherwise did not actually motivate the employment action (that 

is, the proffered reason is a pretext)." Id. at 764 (citations 

omitted) (first emphasis added); see Sempier v. Johnson & 

Higgins, 45 F.3d 724, 728 (3d Cir.) (adopting implicitly the 

"reasonable inference" standard), cert. denied, ___ U.S. ___, 115 

S. Ct. 2611 (1995); accord Siegel v. Alpha Wire Corp., 894 F.2d 

50, 53 (3d Cir.), cert. denied, 496 U.S. 906 (1990); Sorba v. 

Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir. 1987), 

cert. denied, 484 U.S. 1019 (1988). 

 In Fuentes, we observed that "this standard places a 

difficult burden on the plaintiff." 32 F.3d at 765. It requires 

the plaintiff to "present sufficient evidence to meaningfully

throw into question, i.e., to cast substantial doubt upon, the . 
3 

. . proffered reasons[.]" Id. (emphasis added). Elsewhere, we 

have described the standard in similar terms. See Seman v. 

Coplay Cement Co., 26 F.3d 428, 431 (3d Cir. 1994) ("our standard 

requires consideration of whether or not there is substantial

evidence in the record to support an employee's contention that 

'but for' his age he would not have been discharged" (citing 

Billet v. CIGNA Corp., 940 F.2d 812, 815 (3d Cir. 1991)). 

 In the present case, Brewer did not cast doubt on 

Quaker State's proferred reasons, i.e., he did not allege that 

they were not true. He contended instead that they were 

inadequate for discharge because he was a good salesman. 

 I cannot agree that Brewer's evidence meets the 

McDonald Douglas summary judgment standard. His general 

performance evidence, considered in connection with Quaker 

State's specific reasons for discharge, is insufficient to raise 

a genuine issue of material fact; the inferences he draws from 

his remaining evidence are unreasonable. 

 The majority opinion provides a fair summation of the 

facts of this case. Brewer was fired following a series of 

significant performance problems, such as letting his customers 

run out of oil and failing to complete or even file his 

paperwork. To demonstrate that these reasons were pretextual and 

that the real reason for his firing was age discrimination, 

Brewer offered three principal pieces of evidence: first, 

general performance evidence such as positive comments on 

personnel evaluations and a sales bonus for selling oil in the 

two years prior to termination; second, a personnel memorandum 
4 

written by Wanda Weaver, Quaker State's Manager of Employment and 

Compensation, and sent to Pfauser, Brewer's supervisor at the 

time, which summarized Brewer's personnel evaluations since 1975, 

approved a "performance plan" that Pfauser had submitted, and 

observed, "[a]lso, Judd is 53 years old, which presents another 

problem"; and third, a comment by Jack Corn, then chief executive 

officer of the company, in the company newspaper referring to two 

of his new "seconds-in command" as "two of our star young men in 

their mid-40s . . . [t]hat age group is our future . . .." 

 For clarity, I will analyze each of Brewer's 

evidentiary proffers independently. Brewer's general evidence of 

acceptable job performance forms the nub of the case. The Weaver 

memorandum and the Corn comment are far weaker and, I believe, 

insufficient to stave off summary judgment absent Brewer's 

evaluations and sales bonus. 

 Quaker State alleges that it fired Brewer for a litany 

of specific performance problems. Brewer responds with generic 

evidence of his generally successful performance as a salesman. 

The majority believes that Brewer's showing reveals sufficient 

"weaknesses, implausibilities, inconsistencies, incoherences, or 

contradictions" in Quaker State's explanation to produce a 

triable issue of fact. Majority at [typescript at 10]. I do 

not agree. 

 Brewer's general evidence of good performance is 

insufficient to cast doubt on the specific and undisputed reasons 

for termination articulated by Quaker State. Put simply, good 

salesmen get fired for non-sales related reasons. Quaker State 
5 

proffered such reasons, and Brewer has done nothing to rebut 

them. Good performance alone will not raise an inference of 

wrongful termination. See Turner v. Schering-Plough Corp., 901 

F.2d 335, 343-44 (3d Cir. 1990) (observing that close proximity 

between positive evaluations and terminations will not 

necessarily raise an inference of pretext); Healy, 860 F.2d at 

1215 (noting that awards, commendations, and promotions do not 

suggest that countervailing weaknesses do not exist or would not 

be important in future evaluations). Brewer's failure to carry 

out specific tasks is dispositive, regardless of his general 

proficiency. Pierce v. New Process Company, 580 F. Supp. 1543, 

1546 (W.D. Pa.), aff'd 749 F.2d 27 (3d Cir. 1984) ("The absence 

of complaints about performance, the absence of earlier commands, 

and plaintiff's own opinion . . . are all irrelevant in light of 

the direct order . . . which plaintiff undeniably failed to carry 

out."). 

 Because Brewer failed to offer evidence that addresses 

Quaker State's reasons, summary judgment was properly granted. 

See Geary v. Visitation of the Blessed Virgin Mary Parish School, 

7 F.3d 324, 332 (3d Cir. 1993) (affirming summary judgment where 

employee did not contest reason for dismissal); Turner, 901 F.2d 

at 344 (affirming summary judgment where "[the employee] has 

offered no evidence tending to show that serious and unattended 

problems did not exist within his jurisdiction or that [the 

employer's] other criticisms at the time of the . . . decision 

were unjustified."); Keller v. Bleumle, 571 F. Supp. 364, 369 

(E.D. Pa. 1983), aff'd, 735 F.2d 1349 (3d Cir. 1984) (noting that 
6 

employee explained deficiencies but did not contest them); see

also Fowle v. C & C Cola, 868 F.2d 59 (3d Cir. 1989) (affirming 

summary judgment where employee failed to rebut employer's reason 

of lack of qualifications); Spangle v. Valley Forge Sewer 

Authority, 839 F.2d 171 (3d Cir. 1988) (affirming grant of 

summary judgment where employee presented no evidence to show he 

was qualified for the job). 

 Brewer's position in this case differs from previous 

cases where employees have used general performance evidence to 

rebut a proffered reason for discharge. Although we have 

repeatedly recognized that employees can rely on evidence of good 

performance to show pretext, in those cases the employers have 

inevitably relied on poor performance as a reason for 

termination. See, e.g., Waldron v. SL Indus. Inc., 56 F.3d 491, 

496 (3d Cir. 1995) (rebutting poor performance charge and charge 

of economic necessity); Sempier, 45 F.3d at 730 (rebutting with 

performance evidence where non-performance was sole reason 

given); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1422 (3d 

Cir.) (in banc), cert. denied, 502 U.S. 941 (1991) (allowing 

employee to contest poor evaluation using testimony of coworkers); Siegel v. Alpha Wire, 894 F.2d at 51-52 (rebutting 

charge of poor performance and disloyalty); Sorba, 821 F.2d at 

205 (rebutting charge of poor performance); Chipollini, 814 F.2d 

at 900 (rebutting charge of poor performance based primarily on 

credibility of employee). Had Quaker State relied on poor sales 

performance as its reason for discharge, I would confidently join 

the majority in finding that reason rebutted and hence a 
7 

reasonable inference of pretext. That is not the case: Quaker 

State terminated Brewer because of specific failures and 

omissions, not because of generally inadequate performance. 

 Nevertheless, at some level of analysis, performance 

evidence will always be relevant. Even though Quaker State did 

not rely on poor performance per se, we must still consider it. 

As we explained in a footnote in Fuentes, "a decision foolish, 

imprudent, or incompetent by comparison to the employer's usual 

mode of operation can render it implausible, inconsistent, or 

weak." 32 F.3d at 765 n.8. Because firing an extremely 

qualified and effective employee could be "foolish, imprudent, or 

incompetent by comparison to the employer's usual mode of 

operation," the court on summary judgment must inevitably 

consider employee performance. 

 Brewer's performance evidence comes to naught. Under 

our rule in Fuentes, unless the employer relies on poor 

performance as an articulated justification, the evidence of good 

performance must be sufficient to make the employer's decision 

appear "foolish, imprudent, or incompetent." Neither Brewer's 

sales bonus nor his inconsistent, often mediocre, but 

occasionally complementary evaluations meet this burden. See

Turner, 901 F.2d at 343 (refusing to find issue of fact from 

employee's mixed reviews); Healy, 860 F.2d at 1215 (affirming 

grant of summary judgment despite generally positive and at worst 

mixed performance evaluations); see also Fowle, 868 F.2d at 67 

(discounting positive performance evaluations). A company is not 

"foolish, imprudent, or incompetent" when it fires a salesman who 
8 

lets his customers run out of oil, fails to spend sufficient time 

in his territory, and consistently neglects his paperwork. 

 Moreover, in firing Brewer, Quaker State did not 

deviate from "the employer's usual mode of operation." Fuentes, 

32 F.3d 765 n.8. The majority suggests otherwise, claiming that 

"[i]t is also questionable why a company would fire [a] 

salesperson . . . in response to the same organizational 

deficiencies that the employer had tacitly accepted for over two 

decades." Majority at [typescript at 13]. This court has 

recognized that changes in circumstances can turn flaws that were 

previously overlooked into legitimate reasons for termination. 

See Healy, 860 F.2d at 1215, 1220 (discussing change in employee 

environment). It was undisputed that Brewer's problems came to a 

head after his transfer to Detroit, where he encountered a 

supervisor who was hard on everyone and a stickler for rules. 

App. at 72a ("[Pfauser] is a cross the Ts and dot the Is type of 

person to the point of being almost a fanatic about it. Corporate 

policy was always first in line, . . . [a]nd it affected 

everybody out there.") (deposition of Judd Brewer). 

Contemporaneous with Brewer's termination, Brewer's supervisor 

fired a thirty-two year old salesman for almost identical 

deficiencies. See Brewer, 874 F. Supp. at 686; cf. Waldron, 53 

F.3d at 499 (relying on evidence of double standard to reverse 

summary judgment). Brewer experienced a change in circumstances 

after which his previous deficiencies were no longer accepted. 

There is no contradiction here. 
9 

 In an effort to create a contradiction, the majority 

makes much of Brewer's sales bonuses combined with a Quaker State 

executive's statement that sales volume is "extremely important 

in evaluating a salesperson." Majority at [typescript at 

11]. Unfortunately, the two propositions in the majority's 

constructed contradiction pass in the night. Proposition A, that 

Brewer was fired despite good sales figures, simply does not 

contradict Proposition B, that sales volume is "extremely 

important in evaluating a salesperson." Descriptives such as 

"extremely important" and "best simple measure" show that sales 

volume is one important factor to the company, indeed one very 

important factor to the company, but they do not show that sales 

volume is the only important factor to the company. Absent this 

final alternative, Brewer could have had more than acceptable 

sales numbers and still be fired for cause without contradiction. 

 The majority next suggests that "[t]o segregate job 

performance into the neat categories of sales and organizational 

skills defies the reality of the role of a salesperson in a 

company." Majority at [typescript at 11]. In addition, it 

finds in Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 

509, 545 (3d Cir. 1992), cert. denied, ___ U.S. ___, 114 S. Ct. 

88 (1993), the concept of a job's "critical area," implying that 

a company which fires an employee despite acceptable performance 

in that critical area automatically raises an inference of 

pretext.0 These arguments dress the same contention in different 

 

0 I note in passing that to the extent Ezold stands for 

the proposition that an employee who falls short in a critical 
10 

clothes. To paraphrase the argument, the majority claims that 

selling is what salesmen do, so firing a salesman who sells is 

inherently pretextual. 

 I cannot agree. The "reality of [a salesperson's] 

role," and the "critical area" of a job are simply not helpful 

concepts.0 See Perry v. Prudential-Bache Sec., Inc., 738 F. 

Supp. 843 (D.N.J. 1989), aff'd, 904 F.2d 696 (3d Cir.), cert 

denied, 498 U.S. 958 (1990) (affirming summary judgment for 

employer despite showing that terminated employee excelled in 

core skill of underwriting). Both concepts attempt to establish 

a general ideal of "performing the job" such that any contrary 

reason given by the employer conflicts with that ideal. In doing 

so, the majority adopts the very posture of "super-personnel 

 

area of performance can be terminated despite demonstrated 

success in other job areas, it does not follow that an employee 

cannot be terminated for failures in other job areas despite 

success in a critical area. 

0 A brief hypothetical reveals the difficulties with 

these ideas. An associate in a law firm excels at legal 

research, the "critical area" of his job. Yet on several 

occasions, this associate fails to send documents to an important 

client. He also consistently neglects to record his billable 

hours and maintain other mundane aspects of law office paperwork. 

Although some partners accept these foibles, the associate 

eventually encounters a more particular supervising attorney who 

seeks and obtains his termination. Assuming that the associate's 

subsequent suit for discriminatory discharge reached the pretext 

stage, I have little doubt that this hypothetical associate could 

not rebut the employer's specific reason for termination with 

general evidence of good performance in the critical area of his 

job. Nor could some elusive vision of the "reality of a lawyer's 

role" aid him in linking inextricably his failings in 

correspondence and paperwork to his more successful forays in the 

firm library. Such evidence of good performance would not raise 

an inference that the employer's reasons for termination were 

pretextual. Indeed, such evidence would be entirely consistent 

with the reasons given for termination. 
11 

department" that it all too strenuously declines. Majority at 

[typescript at 11]. The majority defines the essence of a sales 

position and evaluates Brewer's performance against that 

standard. I would save this court the task of redefining 

Brewer's job description to include only those requirements that 

he could meet. We should instead look to whether his good sales 

performance was inconsistent with his reasons for termination. I 

find no contradiction and no reasonable inference of pretext. 

 It also bears noting that in firing Brewer, Quaker 

State committed none of the questionable acts which we have cited 

in the past as indicative of pretext. Brewer's performance 

problems were long-standing and well documented. See Healy, 860 

F.2d at 1215 (discounting performance based inferences where 

complaints were long-standing and the employee had been informed 

of their nature); Billet, 940 F.2d at 827 (same); cf. Colgan, 925 

F.2d at 1422 (stressing that evaluations were a surprise and that 

ratings became aberrationally low when employee refused to 

retire). He never contested these evaluations prior to 

termination.0 There was no evidence of corporate machinations or 

a plot to transfer Brewer and set him up for termination. Cf.

Waldron, 56 F.3d at 496-97; Armbruster, 32 F.3d at 772-74. Brewer 

offered no statistical or testimonial evidence indicating that 

 

0 This fact makes Brewer's claim of pretext sound like a 

post hoc explanation. Although the post hoc concept is typically 

applied to the employer's reason for terminating the employee, it 

is equally valid here. Just as post hoc timing indicates the 

employer's reason is pretext, see Waldron, 56 F.3d at 498; 

Sempier, 45 F.3d at 731; Fuentes 32 F.2d at 764; Siegel v. Alpha 

Wire, 894 F.2d at 55, it similarly undermines Brewer's claim. 
12 

Quaker State had discriminated against similarly situated 

parties. Cf. Siegel v. Alpha Wire, 894 F.2d at 55. 

 In my view, Brewer's performance evidence fails to 

reach the quantum required by Fuentes. He has not presented 

"sufficient evidence to meaningfully throw into question, i.e., 

to cast substantial doubt upon, [the defendant's] proffered 

reason . . . (e.g., by painting them as weak, implausible, 

contradictory, or incoherent)[.]" 32 F.3d at 765. Indeed, he 

has presented no evidence indicating that his employer did not 

act for its asserted non-discriminatory reasons. The record 

shows Quaker State's reliance on his failure to meet work 

requirements to be adequate, plausible, consistent, and 

coherent.0

 Having addressed the sufficiency of Brewer's general 

performance evidence, I now turn to the two other items that he 

proffers, the Weaver memorandum and the Corn comment. For both 

items, the inference of discrimination that Brewer hopes to draw 

is unreasonable "in light of competing inferences." Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 589 (1986). 

 

0 As we have so often observed, McDonnell Douglas cases 

are inherently fact-specific. Billet, 940 F.2d at 828 

("discrimination cases are inherently fact-bound"); Healy, 860 

F.2d at 1215 ("each ADEA case must be judged on its own facts"). 

My rejection of Brewer's showing would not foreclose the success 

of some future performance-based challenge to termination, either 

where the employer relied on poor performance as one of its 

justifications or where, as per Fuentes, the employee's 

performance is sufficient to make the employer's decision appear 

"foolish, imprudent, or incompetent." See Fuentes, 32 F.3d at 

764 n.7 (explaining that employee need only cast doubt on certain 

employee reasons). Brewer's evidence, however, does not meet 

this burden, and the grant of summary judgment was proper. 
13 

 As to the Weaver memorandum, I have little to add to 

the analysis of the trial court. Brewer, 874 F. Supp. at 683-84. 

Brewer greatly amplified the impact of Weaver's "[age] presents 

another problem" statement by repeatedly quoting it out of 

context. When the letter is read as a whole, it becomes apparent 

that an inference of age discrimination is not reasonable.0 The 

 

0 To properly evaluate the statement, it must be 

understood as written. This extensive quotation places the 

comment in context: 

The performance plan that you outlined . . . 

is excellent. It is important that you 

identify specific deficiencies [in Brewer's 

performance] and the results desired by 

management. 

At this point in time, I would recommend that 

you identify specific monthly dates when you 

two can get together and discuss results over 

the previous thirty (30) days. The results 

of those meetings should be summarized in 

letter format and Judd should sign the letter 

to acknowledge receipt. It is also important 

that we provide Judd with written notice of 

action that will be taken if the problems are 

not corrected. I suggest summarizing your 

meeting of August 19, acknowledge receipt by 

Judd, and close the letter by stating, "I 

must emphasize to you that your failure to 

permanently improve your work performance may 

lead to more severe discipline, up to and 

including discharge." 

Attached for your review is a brief summary 

of Judd's performance appraisals over the 

last 15 years. I am disappointed that action 

was not taken years ago to correct these 

problems. It is apparent from the 

performance appraisals that he has had 

ongoing performance problems throughout his 

employment history. 

I am obviously concerned that we have to take 

this type of action after 23 years of 
14 

district court drew the only reasonable conclusion: "The 

statement as to Brewer's age being a 'problem,' together with the 

notations of his age and years of service, obviously indicate 

Weaver's awareness that Brewer might file an age discrimination 

lawsuit if terminated." Id. at 684. 

 From the tone of the sentence and its placement in the 

memorandum, it is clear that Brewer's age militates against his 

firing. The comment appears in a separate paragraph from the 

discussion of Brewer's employment problems. Moreover, in 

Weaver's unrebutted deposition testimony, she stated that 

standard procedures were followed in requiring documentation of 

Brewer's performance while on probation and that she highlighted 

Brewer's age to alert his supervisor to his protected status and 

to ensure that age was not the reason for termination. Id.; see

Perry v. Prudential-Bache Sec., Inc., 738 F. Supp. 843, 849 

(D.N.J. 1989) (holding that age data on various employment 

records was used for computing employee's pension, not for the 

purpose of discrimination), aff'd, 904 F.2d 696 (3d Cir.), cert. 

denied, 498 U.S. 958 (1990). The district court correctly 

 

employment. Also, Judd is 53 years old, 

which presents another problem. However, 

within the next ninety (90) days, it is 

extremely important for you to document as 

much as possible in the event his performance 

does not improve. 

Please forward each letter for our personnel 

file in Oil City. I will stay in touch with 

you to see what progress has been made . . .. 

App. at 24. 
15 

concluded that nothing supported an inference of discrimination, 

a conclusion that is all the more valid in light of Brewer's long 

history of employment problems. 

 As to the Corn comment, it expresses a truism that I 

would deem to be a stray remark by a non-decisionmaker. Even if 

it were to be considered relevant, I do not believe that it would 

create a material issue of fact sufficient to warrant a denial of 

Quaker State's motion for summary judgment. See White v. 

Westinghouse Elec. Co., 862 F.2d 56, 61 (3d Cir. 1988) 

(considering similar comments); Perry v. Prudential-Bache Sec. 

Inc., 738 F. Supp. 843, 849 (D.N.J. 1989) (same), aff'd 904 F.2d 

696 (3d Cir.), cert. denied, 498 U.S. 948 (1990). I will not 

dwell on it further. 

 I conclude that, viewed as a whole, the record contains 

nothing that casts meaningful doubt on Quaker State's proffered 

reason for Brewer's discharge. "While plaintiff is 'entitled to 

every favorable inference,' he is not entitled to build a case on 

'the gossamer threads of whimsy, speculation and conjecture.'" 

Keller v. Bluemle, 571 F. Supp. 364, 371 (E.D. Pa. 1983), aff'd, 

735 F.2d 1349 (3d Cir. 1984). 

 I do not believe that Brewer has made the showing 

necessary to survive a motion for summary judgment. Because I 

would affirm the district court, I respectfully dissent.