1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-1995

Sempier v Johnson & Higgins

Precedential or Non-Precedential:

Docket 94-5208

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Recommended Citation

"Sempier v Johnson & Higgins" (1995). 1995 Decisions. Paper 6.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

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No. 94-5208 

 

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BURT N. SEMPIER 

 Appellant

v. 

JOHNSON & HIGGINS 

---------- 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil No. 92-01708) 

 

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Argued Friday, September 23, 1994 

BEFORE: BECKER, COWEN and GARTH Circuit Judges

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(Opinion filed January 6, 1995) 

 

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Charles F. Waskevich, Jr. (Argued) 

Riker, Danzig, Scherer, Hyland 

 & Perretti 

One Speedwell Avenue 

Headquarters Plaza 

Morristown, New Jersey 07962-1981 

 Attorney for Appellant 

John F. Cannon 

Sullivan & Cromwell 

125 Broad Street 

New York, New York 10004 
Francis X. Dee (Argued) 

Carpenter, Bennett & Morrissey 

100 Mulberry Street 

Three Gateway Center 

Newark, New Jersey 07102 

 Attorney for Appellee 

 

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 OPINION OF THE COURT 

 

 ---------- 

GARTH, Circuit Judge: 

 On March 9, 1994, the district court granted summary 

judgment in favor of Johnson & Higgins ("J & H"), the employer of 

appellant Burt Sempier. Sempier now appeals the district court's 

grant of summary judgment on his Age Discrimination in Employment 

Act (ADEA) claim, 29 U.S.C. § 263 (1988),1 and the discretionary 

dismissal of his pendent state law claims. He also raises as 

error the district court's substitution of a "Bill of 

Particulars" in place of his interrogatories. 

 

1. 29 U.S.C. § 623(a) in relevant part provides: 

 It shall be unlawful for an employer-- 

 (1) to fail or refuse to hire or to discharge any 

individual or otherwise discriminate against any 

individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of 

such individual's age; 

 (2) to limit, segregate, or classify his employees 

in any way which would deprive or tend to deprive any 

individual of employment opportunities or otherwise 

adversely affect his status as an employee, because of 

such individual's age . . . . 
 We have jurisdiction pursuant to 28 U.S.C. § 1291 to 

review the March 9, 1994 final order of the district court. 

Because the record reflects a genuine issue of material fact 

regarding whether J & H's asserted nondiscriminatory reasons for 

discharging Sempier are pretextual, we will reverse the summary 

judgment entered in favor of J & H. We also conclude that the 

district court abused its discretion in substituting its own 

"Bill of Particulars" for Sempier's interrogatories. 

I 

 Sempier joined appellee J & H, an insurance brokerage 

and employee benefits consulting firm, in 1968.2 Sempier worked 

as Comptroller until 1971 when he became Treasurer of J & H. In 

1984, J & H created a new position of Chief Financial Officer 

("CFO"), and the Board of Directors elected Sempier to that post. 

 The parties dispute whether the J & H directors 

criticized Sempier's performance as CFO. Sempier avers that no 

one advised him that his performance was less than satisfactory 

nor did anyone bring to his attention any deficiencies in his 

performance of his functions. App. 300. Robert Hatcher, the 

firm's chairman who was Sempier's friend and had been 

instrumental in Sempier being elected as CFO, states that he was 

generally pleased with Sempier's work. At the same time, he 

acknowledges that other directors had criticized Sempier's 

 

2. J & H is a closely held New Jersey corporation. It operates 

as if it were a partnership. All stockholders are members of the 

firm. All directors are employees of the firm. 
performance. App. 363-65. Other J & H directors state in 

affidavits that they believed that Sempier performed below 

expectations. App. 727 (affidavit of Eric Johnson); App. 778-79 

(affidavit of Kenneth Hecken). 

 In 1985, one year after Sempier assumed his duties as 

CFO, an outside audit of the Finance Department, requested by 

J & H director Eric Johnson, criticized the department's 

operations. App. 728-29. After further investigation, Johnson 

sought to have Sempier replaced. Despite Johnson's criticisms, 

J & H unanimously elected Sempier to the Board of Directors in 

1986. Hatcher supported Sempier's election to the Board of 

Directors because he believed that this move would assist Sempier 

in improving the Finance Department's operations. When Sempier 

was elected, J & H required that he execute a letter of 

resignation that would become effective upon a two-thirds vote of 

the Board of Directors. 

 In May 1987, J & H removed Sempier from his 

responsibilities as CFO and made him Chief Administrative Officer 

("CAO") in charge of Management Information Systems ("MIS"), 

Human Resources, Professional Development, and Real Estate and 

Facilities. Sempier was unanimously reelected to the Board in 

1989. Both sides dispute how Sempier performed as CAO. 

 Due to the increasing importance of MIS services and 

the department's unsatisfactory record, J & H decided to elevate 

the MIS department's status by hiring a Chief Information Officer 

("CIO"), thereby removing MIS from Sempier's supervision. 

Notwithstanding some lobbying by Hatcher, the firm denied Sempier 
the CIO position. In December 1989, J & H hired Alan Page, who 

is fourteen years younger than Sempier, as CIO. The directors 

elected Page to the board in 1990. 

 Three months later, J & H hired Thomas Carpenter, who 

is four years younger than Sempier, to assume responsibility for 

Human Resources and Professional Development, starting in May 

1990. Carpenter's arrival left Sempier with significantly 

reduced responsibilities. 

 In May 1989, before either Page or Carpenter had been 

hired, J & H had instituted an early retirement program to retire 

"redundant" and "poorly performing" employees who were 55 years 

of age or older. App. 636-37. The firm intended to use the 

program either to "pull" employees into retirement through 

incentives or to "push" them into retirement through involuntary 

"terminations" which were to be characterized as downsizing. 

App. 637 (Exhibit 8). 

 In April 1990, Hatcher, who was still the Chairman of 

J & H, advised Sempier to retire early with certain enhancements 

to his existing retirement package. Hatcher stated that Sempier 

had "lost credibility" with unnamed senior managers. App. 301. 

Sempier refused to retire. Hatcher responded, using strong and 

unequivocal language, that Sempier had no choice but to retire or 

to be forced out. App. 302. 

 Between April 1990 and April 1991, J & H engaged in 

extended, and occasionally bitter, negotiations with Sempier 

seeking to obtain his retirement or resignation. In January 

1991, David Olsen succeeded Hatcher as Chairman of J & H. When, 
in the spring of 1991, Sempier told Olsen that he had hired a 

lawyer, Olsen told Sempier that he could no longer return to 

J & H and should vacate his office. App. 81. At the same time, 

Olsen wrote the firm's general counsel that "[i]t's obviously 

time for hardball." App. 80. After Sempier consistently refused 

to retire, the Board made effective Sempier's previously executed 

resignation in June 1991. 

 Sempier filed an age discrimination claim with the 

Equal Employment Opportunity Commission, received a right to sue 

letter, and instituted an ADEA suit in the District of New Jersey 

with pendent state law claims for breach of contract as well as 

violations of the New Jersey Law Against Discrimination and the 

New Jersey Business Corporations Act. J & H answered that 

Sempier had been discharged for poor performance. 

 At the outset of the litigation, Sempier served two 

sets of interrogatories and a series of document requests on 

J & H. When J & H refused to respond to a substantial portion of 

the discovery requested, Sempier sought an order from the 

magistrate judge which would have compelled J & H to respond. 

The magistrate judge denied Sempier's motion. On appeal, the 

district court judge vacated the order of denial but remanded the 

dispute to the magistrate judge without entering an order 

compelling discovery. On remand, the magistrate judge relieved 

J & H from answering the original two sets of interrogatories and 

required that Sempier draft a third set of interrogatories. App. 

563-64. After J & H refused to answer almost all of these 

interrogatories, Sempier again sought a second order compelling 
discovery. The magistrate judge denied Sempier's motion to 

compel answers and ordered J & H to provide information 

responding to a "Bill of Particulars" drafted by the court. App. 

576. On appeal, the district court affirmed the magistrate 

judge's order and added one question of its own to the "Bill of 

Particulars." 

 Between November and December 1993, the parties 

disputed whether J & H had complied with the court's orders to 

answer the court's questions and to provide documents. In 

December, Sempier filed additional motions for an order to compel 

discovery and for partial summary judgment. J & H replied with 

its motion for summary judgment. 

 The district court granted J & H's summary judgment 

motion on the ADEA claim and dismissed the remaining pendent 

claims without prejudice. The district court expressed concern 

that Sempier had not made out a prima facie case because of an 

inability to show that he was a qualified employee or replaced by 

a sufficiently younger employee to raise an inference of age 

discrimination. Nonetheless, it turned to J & H's asserted 

nondiscriminatory reasons for Sempier's discharge and Sempier's 

evidence of pretext. 

 The district court found that J & H had come forward 

with two alleged reasons for Sempier's discharge: (1) that 

Sempier's reduced responsibilities did not justify his continued 

presence on the Board of Directors and (2) that Sempier's poor 

performance had justified the reduction in his responsibilities 

and eventual discharge. Moreover, the district court held that 
Sempier had not produced sufficient evidence to allow a jury to 

find that J & H's alleged nondiscriminatory reasons were a 

pretext for discrimination. Accordingly, the court entered a 

judgment in favor of J & H, denied Sempier's motion for partial 

summary judgment, and dismissed Sempier's pendent state law 

claims without prejudice. 

 Sempier filed a timely appeal. 

 

II 

A. 

 When we review a grant of summary judgment, we apply 

the same test that the district court should have applied 

initially. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 

(3d Cir.) (en banc), cert. dism'd, 483 U.S. 1052 (1987). Summary 

judgment is appropriate only when the admissible evidence fails 

to demonstrate a dispute of material fact and the moving party is 

entitled to judgment as a matter of law. Id.; see Fed. R. Civ. 

Proc. 56(c) (1994). When the moving party (here, J & H) does not 

bear the burden of persuasion at trial, the moving party may meet 

its burden on summary judgment by showing that the nonmoving 

party's (here, Sempier's) evidence is insufficient to carry its 

burden of persuasion at trial. Celotex Corp. v. Catrett, 477 

U.S. 317, 323-24 (1986). Thereafter, the nonmoving party creates 

a genuine issue of material fact if sufficient evidence is 

provided to allow a reasonable jury to find for him at trial. 

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). 
 In reviewing the record, the court must give the 

nonmoving party the benefit of all reasonable inferences. Josey 

v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993); 

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir. 

1992); Chipollini, 814 F.2d at 900; see also id. at 901 

(discussing the impropriety of credibility determinations on 

summary judgment); Josey, 996 F.2d at 639 (same). 

B. 

 Sempier prosecuted his case on the "pretext" theory 

announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792 

(1973) and later clarified in Texas Department of Community 

Affairs v. Burdine, 450 U.S. 248 (1981) and St. Mary's Honor 

Center v. Hicks, __ U.S. __, 113 S. Ct. 2742 (1993).3

 As applied to ADEA cases, the plaintiff establishes a 

prima facie case by showing that (1) he is over 40, (2) he is 

qualified for the position in question, (3) he suffered an 

adverse employment decision, and (4) he was replaced by a 

sufficiently younger person to create an inference of age 

discrimination. Chipollini, 814 F.2d at 897.4 This showing 

 

3. Although the pretext framework originated in the context of 

Title VII, it has been applied to the ADEA. See, e.g., Geary v. 

Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 

n.4 (3d Cir. 1993). 

4. Sempier's complaint appears to suggest that J & H violated 

the ADEA not only by discharging him as an employee but also by 

removing him as a director. For the most part, the record and 

the parties' briefs treat these two events as functionally 

identical. Whether the ADEA extends to cover Sempier's status as 

a director is a function of Sempier's duties and not his title. 

See Nationwide Mutual Insurance Co. v. Darden, 112 S. Ct. 1344, 
creates a presumption of age discrimination that the employer 

must rebut by stating a legitimate nondiscriminatory reason for 

the adverse employment decision. Hicks, __ U.S. at __, 113 S. 

Ct. at 2747; Chipollini, 814 F.2d at 897. The plaintiff then has 

the opportunity to demonstrate that the employer's stated reasons 

were not its true reasons but were a pretext for discrimination. 

Hicks, __ U.S. at __, 113 S. Ct. at 2747; Chipollini, 814 F.2d at 

897. He may do this through direct or circumstantial evidence of 

falsity or discrimination. Chauhan v. M. Alfieri Co., Inc., 897 

F.2d 123, 128 (3d Cir. 1990); Chipollini, 814 F.2d at 898-99. 

 Moreover, to defeat a summary judgment motion based on 

a defendant's proffer of a nondiscriminatory reason, a plaintiff 

who has made a prima facie showing of discrimination need only 

point to evidence establishing a reasonable inference that the 

employer's proffered explanation is unworthy of credence. 

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). A plaintiff 

is not required to produce evidence which necessarily leads to 

the conclusion "that the employer did not act for the 

nondiscriminatory reasons." Sorba v. Pennsylvania Drilling Co., 

(..continued) 

1348-49 (1992) (considering the definition of employee under 

ERISA); Frankel v. Bally, Inc., 987 F.2d 86, 89-91 (2d Cir. 1993) 

(considering the test for who is covered under the ADEA); Equal 

Employment Opportunity Commission v. Zippo Manufacturing Co., 713 

F.2d 32, 36-38 (3d Cir. 1983) (same); Equal Employment 

Opportunity Commission v. First Catholic Slovak Ladies 

Association, 694 F.2d 1068, 1070 (6th Cir. 1982) (holding that 

plaintiff's status as a director did not prevent the application 

of the ADEA to plaintiff's position as an employee), cert. 

denied, 464 U.S. 819 (1983). To the extent that Sempier on 

remand pursues relief related to his status as a director, this 

issue should be resolved by trial on the basis of the parties' 

proof of his functions at J & H in that capacity. 
821 F.2d 200, 205 (3d Cir. 1987), cert. denied, 484 U.S. 1019 

(1988). 

III 

 Without holding that Sempier failed to establish a 

prima facie case, the district court questioned whether Sempier 

made out a prima facie case of discrimination. The district 

court doubted that Sempier had shown that he was qualified to 

work as the Chief Administrative Officer of J & H and doubted 

that he was replaced by a sufficiently younger employee to raise 

an inference of age discrimination. 

 We note however that the prima facie case under the 

McDonnell Douglas-Burdine pretext framework is not intended to be 

onerous. Burdine, 450 U.S. at 253. The prima facie case merely 

"raises an inference of discrimination only because we presume 

these acts, if otherwise unexplained, are more likely than not 

based on the consideration of impermissible factors." Furnco 

Construction Co. v. Waters, 438 U.S. 567, 577 (1978). 
A. 

 We determine a plaintiff's qualifications for purposes 

of proving a prima facie case by an objective standard. Weldon 

v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990); Jalil v. Avdel 

Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 

1023 (1990). "[W]hile objective job qualifications should be 

considered in evaluating the plaintiff's prima facie case, the 

question of whether an employee possesses a subjective quality, 

such as leadership or management skill, is better left to" 

consideration of whether the employer's nondiscriminatory reason 

for discharge is pretext. Weldon, 896 F.2d at 798. "Thus, to 

deny the plaintiff an opportunity to move beyond the initial 

stage of establishing a prima facie case because he has failed to 

introduce evidence showing he possesses certain subjective 

qualities would improperly prevent the court from examining the 

criteria to determine whether their use was mere pretext." Id.

at 798-99. 

 Here, the district court misapplied this rule when it 

evaluated Sempier's qualification by reference to J & H's 

subjective criticism that Sempier lacked "management oriented" 

skills and leadership ability. App. 895. Sempier had the 

objective experience and education necessary to qualify as a 

viable candidate for the positions he held. He had held 

executive level positions at J & H for over twenty years. 

 Sempier also relied on the affidavit and depositions of 

Hatcher, J & H's chairman. Hatcher had testified that he had 

been satisfied with Sempier's performance. App. 895. In 
response to this record, the district court observed, "[a]lthough 

it would be unusual for a corporation to place an unqualified 

individual in an executive position, it is not unimaginable." 

App. 896-97. In so stating, the district court failed, as 

required on summary judgment, to consider the evidence in the 

light most favorable to Sempier, the nonmoving party. See Josey 

v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993); 

Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir. 

1992); Chipollini, 814 F.2d at 900. Indeed, the district court 

apparently inferred that Sempier was unqualified for the position 

he held. 

 Contrary to the inference of the district court, if we 

consider the evidence in the light most favorable to Sempier, the 

record of his twenty years employment as an executive, his record 

as Comptroller and then Treasurer of J & H, his election to the 

Board on two occasions, and his appointment as Chief Financial 

Officer and then as Chief Administrative Officer leads to the 

almost inevitable inference that he was qualified for the 

position from which he was discharged. As we have said in a 

similar context, "[t]hus, [plaintiff's] satisfactory performance 

of duties over a long period of time leading to a promotion 

clearly established his qualifications for the job." Jalil, 873 

F.2d at 707. Sempier's qualifications therefore satisfy the 

second prong of the prima facie case that Sempier was charged 

with establishing, thus putting to rest the doubts raised by the 

district court. 
B. 

 To complete his prima facie case, Sempier does not need 

to produce compelling evidence or conclusive proof that J & H's 

adverse employment decision resulted from age discrimination. 

Chipollini, 814 F.2d at 900. Rather he may point to a sufficient 

age difference between himself and his replacement such that a 

fact-finder can reasonably conclude that the employment decision 

was made on the basis of age. Maxfield v. Sinclair Intern'l, 766 

F.2d 788, 792 (3d Cir.), cert. denied, 474 U.S. 1057 (1985). Nor 

is there any particular age difference that must be shown. Id. 

Different courts have held, for instance, that a five year 

difference can be sufficient, Douglas v. Anderson, 656 F.2d 528, 

533 (9th Cir. 1981), but that a one year difference cannot. 

Gray, 957 F.2d at 1087. 

 The district court in this case considered only the 

four year age difference between Sempier and Carpenter, who had 

taken over some of Sempier's responsibilities. However, we are 

not limited to considering only Sempier's final replacement. 

Four months prior to the date that Carpenter became responsible 

for Human Resources and Professional Development at J & H, a 

substantial portion of Sempier's other functions were transferred 

to Alan Page. Page is well over ten years younger than Sempier. 

App. 711. The combined differences in age between Sempier on the 

one hand and Page and Carpenter on the other is clearly 
sufficient to satisfy the fourth prong of a prima facie case by 

raising an inference of age discrimination.5

IV 

A. 

 Having concluded that the record is more than 

sufficient to dispel the district court's doubts as to Sempier's 

prima facie case, we turn now to consider the evidence of J & H's 

alleged reasons for Sempier's discharge. As we earlier stated, 

after the plaintiff has established a prima facie case, the 

 

5. J & H contends that we cannot consider the transfer of 

Sempier's duties to Page because it occurred outside of the 300 

day period for filing a separate claim of age discrimination. 

J & H's Brief at 38; see 29 U.S.C. § 626(d) (providing a 300 day 

period in which to file an administrative charge). 

 The argument is disingenuous. J & H relies on the 

incremental removal of Sempier's management responsibility over 

Management Information Systems to justify Sempier's dismissal; 

however, J & H asks us to limit our consideration of Sempier's 

case to the facts that fall within the 300 days immediately prior 

to when Sempier filed his administrative charge. Although 

Carpenter was the last person to assume any of Sempier's 

responsibilities, the process that led to Sempier's eventual 

discharge began with the transfer of MIS authority from Sempier 

to Page. 

 The statute of limitations for filing a charge of 

discrimination may have barred our consideration of the transfer 

of MIS authority to Page if that was Sempier's cause of action, 

but it does not prevent us from considering that event in order 

to determine whether Sempier has raised an inference of age 

discrimination as a part of his prima facie case. See United 

Airlines, Inc. v. Evans, 431 U.S. 553, 558 (1977) (barring a 

separate claim of discrimination, but permitting use of the prior 

events as evidence to prove a case of discrimination based on a 

separate claim); Colgan v. Fisher Scientific Co., 935 F.2d 1407, 

1420-21 (3d Cir.), cert. denied, 112 S. Ct. 379 (1991). 
employer must produce evidence of a nondiscriminatory reason to 

rebut the presumption of discrimination created by the prima 

facie case. Hicks, __ U.S. at __, 113 S. Ct. at 2747; 

Chipollini, 814 F.2d at 897. 

 Here, J & H has presented two reasons. First, J & H 

states that it terminated Sempier because his company duties no 

longer justified retaining him in his position. Second, it 

contends that Sempier performed those duties poorly. J & H 

attempted to establish each of these justifications through 

affidavits of J & H executives and directors. As we understand 

the record, J & H's nondiscriminatory reasons for Sempier's 

discharge come down to this: Sempier performed so poorly that 

almost all of his responsibilities at the firm were transferred 

to others, leading ultimately to Sempier's discharge. 

 J & H produced the affidavits of two directors, who had 

previously supervised Sempier, reflecting the directors' 

discontent with Sempier's work. App. 778-79, 783-84 (affidavit 

of Hecken); App. 726-32 (affidavit of Johnson). Additionally, 

Hatcher's affidavit averred that many directors did not regard 

Sempier highly and that Hatcher had used his influence to have 

Sempier elected to the Board against the other directors' wishes. 

App. 365, 369-70. To corroborate these assertions, J & H 

included a consultant's report that criticized the operations of 

the finance department during 1985-1987 when Sempier served as 

CFO. App. 738-749. Finally, the company produced documents 

disclosing that Sempier received less compensation from the 
directors' merit compensation pool than some of the other 

directors who held comparable positions. 

B. 

 On the other hand, Sempier claims that these 

allegations of poor performance are not worthy of credence and 

are no more than a pretext for discrimination. The Supreme 

Court, in Saint Mary's Honor Center v. Hicks, __ U.S. __, 113 S. 

Ct. 2742 (1993), recently clarified the showing of pretext that a 

plaintiff must make to win a discrimination case. Rejection of 

the employer's nondiscriminatory explanation does not compel a 

verdict in favor of the employee, but it permits the trier of 

fact to infer discrimination and find for the plaintiff on the 

basis of the allegations of discrimination in his prima facie 

case. Hicks, __ U.S. at __, 113 S. Ct. at 2749; Fuentes v. 

Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Seman v. Coplay Cement 

Co., 26 F.3d 428, 433 (3d Cir. 1994). "The factfinder's 

disbelief of the reasons put forward by the [employer] . . . may, 

together with the elements of the [employee's] prima facie case, 

suffice to show intentional discrimination." Hicks, __ U.S. at 

__; 113 S. Ct. at 2749. 

 Accordingly, "a plaintiff who has made out a prima 

facie case may defeat a motion for summary judgment by either (i) 

discrediting the proffered reasons, either circumstantially or 

directly, or (ii) adducing evidence, whether circumstantial or 

direct, that discrimination was more likely than not a motivating 

or determinative cause of the adverse employment action." 
Fuentes, 32 F.3d at 764 (emphasis in original). If the plaintiff 

produces sufficient evidence of pretext, he need not produce 

additional evidence of discrimination beyond his prima facie case 

to proceed to trial. Id.

 Pretext is not demonstrated by showing simply that the 

employer was mistaken. Ezold v. Wolf, Block, Schorr and SolisCohen, 983 F.2d 509, 531 (3d Cir. 1992), cert. denied, 114 S. Ct. 

88 (1993). Instead the record is examined for evidence of 

inconsistencies or anomalies that could support an inference that 

the employer did not act for its stated reasons. Josey v. John 

R. Hollinsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993). 

 Thus, we turn to the record to determine whether 

Sempier has produced sufficient evidence to allow a jury to find 

that J & H did not terminate him for poor performance. Sempier 

emphasizes three evidentiary threads which create a genuine issue 

of material fact. He first points to statements in his own 

affidavit, in Hatcher's affidavit, and in Hatcher's deposition 

testimony that his performance was satisfactory. App. 321, 325 

(Sempier); App. 363-65 (Hatcher); App. 797 (Hatcher). The 

district court found that Hatcher's additional statement that 

other directors did not agree with Hatcher's favorable assessment 

undermined the credibility of Hatcher's assertions of 

satisfactory performance. While we may or may not find Sempier's 

self evaluation and Hatcher's assessments of Sempier's 

performance to be compelling evaluations of Sempier's work, it is 

neither our role nor the district court's role on summary 

judgment to compare the testimony of various affiants and decide 
who is credible. Chipollini, 814 F.2d at 901; Josey, 996 F.2d at 

637. 

 The district court, citing Billet v. CIGNA Corp., 940 

F.2d 812 (3d Cir. 1991), also concluded that Sempier's self 

evaluation was meaningless because only J & H's evaluation of 

Sempier's performance was at issue. Billet states that the 

inquiry into pretext centers upon the employer's beliefs and not 

the employee's own perceptions. Id. at 825 ("However, 

[plaintiff's] view of his performance is not at issue; what 

matters is the perception of the decision maker."). Nonetheless, 

Billet does not stand for the proposition that the employee's 

belief that his performance was satisfactory is never relevant. 

Billet concluded that the employee's assertions of his own good 

performance were insufficient to prevent summary judgment where 

the employer produced performance reviews and other documentary 

evidence of misconduct and insubordination that demonstrated poor 

performance. Id. at 818-22. 

 Where, as here, Sempier asserts not only that he 

performed well but that he never received any unfavorable 

criticism that his performance was poor or inadequate, the jury 

could conclude that J & H's failure to fault Sempier's 

performance for the twenty years prior to the negotiations 

leading to his discharge makes suspect its post hoc assertions of 

poor performance. This is especially true when J & H has failed 

to produce any other evidence of poor performance or make 

specific allegations of Sempier's deficiencies. 
 Sempier next points to two formal performance 

evaluations from 1988 and 1989 in which Hecken, Sempier's 

supervisor, wrote that Sempier's performance was satisfactory. 

App. 308-19. In considering these evaluations, the district 

court stated, solely on the basis of Hecken's affidavit, that 

"[t]he evaluations were a first attempt by Defendant to open the 

lines of communication between lower level directors and the 

senior members of the board to whom they reported. Viewed in 

this light, they are of little value in determining Plaintiff's 

true level of performance." App. 906. In so stating, the 

district court ignored the testimony of Hatcher at his deposition 

that any critical comments concerning Sempier's performance 

should be recorded in the performance evaluations. App. 799. 

Hatcher also said that the compensation committee had previously 

used the evaluations in determining directors' compensation. 

App. 824-26. On summary judgment, it is not the court's role to 

weigh the disputed evidence and decide which is more probative. 

 Finally, Sempier points to the coercive early 

retirement program that J & H instituted shortly before it forced 

Sempier's resignation. J & H documents showed that the company 

instituted this program to generate a significant number of 

retirements largely through monetary incentives. The district 

court correctly concluded that the use of an early retirement 

program to dismiss redundant or underperforming employees is not 

by itself a violation of the ADEA. See Gray v. York Newspapers, 

957 F.2d 1070, 1080-81 (3d Cir. 1992); Colgan v. Fisher 

Scientific Co., 935 F.2d 1407, 1422 (3d Cir.), cert. denied, 112 
S. Ct. 379 (1991). On the other hand, an early retirement 

program designed to force employees who reach a senior age to 

leave or face significant pressure to resign or retire might 

itself create an inference of age discrimination. Gray, 957 U.S. 

at 1081 (citing Henn v. National Geographic Soc'y, 819 F.2d 824, 

826, 828-29 (7th Cir.), cert. denied, 484 U.S. 964 (1987)). It 

is impermissible to force older employees to choose between 

retirement or termination in an effort to eliminate older workers 

on account of their age. 

 The record clearly discloses that Hatcher told Sempier 

in no uncertain terms that he could either retire, face 

continuing pressures to retire, or be terminated.6 The record 

also reflects a mandatory policy at J & H that directors must 

retire at set intervals corresponding to age. Later, after the 

company learned that Sempier had sought legal counsel, Olsen, 

J & H's Chairman, told Sempier to pack his office and leave. 

While this evidence does not itself establish age discrimination, 

a jury might reasonably determine from these events that J & H 

offered Sempier early retirement as an effort to remove him 

because of his age and not because of poor performance. 

 In cases such as the present one, the question for the 

court is whether the record "could support an inference that the 

employer did not act for non-discriminatory reasons, not whether 

 

6. In the April meeting at which Hatcher recommended early 

retirement, Sempier recites that Hatcher told Sempier that 

unnamed J & H managers "would let me [Sempier] rot, would cut my 

balls off and otherwise make it unpleasant for me to stay." App. 

302. 
the evidence necessarily leads to that conclusion that the 

employer did act for discriminatory reasons." Chipollini, 814 

F.2d at 900 (emphasis in original); see also Fuentes, 32 F.3d at 

764 (stating that the plaintiff need not show more than that the 

employer's articulated reasons were implausible to survive 

summary judgment). When the evidence is read in the light most 

favorable to Sempier, a jury could reasonably find that J & H did 

not terminate him because of poor performance but rather 

discharged him because of his age. 

V 

 To recap, once Sempier had made out a prima facie case 

of age discrimination, a presumption arose that J & H had 

discriminated against him. Burdine, 450 U.S. at 254. J & H 

dispelled that presumption by coming forward with a 

nondiscriminatory reason for Sempier's discharge, leaving nothing 

but the permissible inference of discrimination created by the 

prima facie case. Hicks, __ U.S. at __; 113 S. Ct. at 2748-49. 

Sempier's attack on J & H's stated reasons for his discharge 

leaves us with the paradigmatic case in which each party has 

produced testimony and evidence that conflicts on the ultimate 

issue -- whether Sempier was discharged for poor performance or 

because of his age. The resulting conflict must be resolved by a 

jury and cannot be resolved on summary judgment. Thus, the 

summary judgment entered in favor of J & H must be reversed.7

 

7. Sempier also raises as error the district court's denial of a 

partial summary judgment in his favor on the issue of liability. 
VI 

 In addition to challenging the district court's order 

which granted summary judgment to J & H, an order which we now 

hold must be reversed, Sempier also complains that the district 

court abused its discretion in ruling on his discovery efforts. 

In so doing, Sempier contends that he was prevented from 

marshalling additional evidence establishing that J & H's 

proffered reason for his discharge was pretextual.8 

 We normally do not become involved with "nitty gritty" 

rulings on discovery matters. Nor do we generally engage in 

exercises to determine whether a party's interrogatories are 

relevant or are unduly burdensome. This appeal, however, 

requires that we review the actions taken by the magistrate judge 

and the district court judge with respect to discovery sought and 

answered by the parties. While we will not examine each jot and 

(..continued) 

Sempier argues that J & H presented no evidence of his poor 

performance. As we have discussed in text, the record reflects 

that both Sempier and J & H have adduced conflicting evidence 

over the reason for his discharge. This resulting conflict could 

not be resolved by summary judgment in Sempier's favor. 

8. Sempier strongly disputes J & H's contention that he had 

chosen to resist J & H's renewed motion for summary judgment 

without completing the depositions that had been scheduled. 

Sempier claims that the documents he sought from J & H were 

essential in order to conduct his remaining depositions. He 

asserts that the district court for that reason alone should have 

denied J & H's motion for summary judgment and should have 

permitted Sempier to complete his discovery. (Sempier Reply 

Brief at p. 23.) 
tittle of the discovery process, it is important to our analysis 

that some background be furnished. 

 Sempier's complaint was filed in April 1992. In June 

1992, Sempier served his first set of interrogatories and a 

request for production of documents. In July 1992, Sempier 

served a second set of interrogatories with a second request for 

production of documents. Unfortunately, not all of the 

interrogatories that were served have found their way into the 

record, and thus, into the appendix. We have examined those that 

have been reproduced in the appendix, and we find it difficult to 

understand how the magistrate judge could have condoned the 

answers given by J & H. Moreover, we are perplexed by the 

failure of the magistrate judge or the district court judge to 

compel responsive answers to the interrogatories -- almost all of 

which appear to us to be relevant and directed to the issues of 

Sempier's employment, performance and relationship with J & H. 

 For example, Interrogatory No. 36 sought the name of 

each and every person who had supervision and/or control over 

Sempier from January 1, 1986 through the termination of Sempier's 

employment. It also sought, with respect to each such supervisor 

identified, the job title, the department supervised, the duties 

and responsibilities of the job, the date on which he or she 

assumed the supervisory position, and, if the individual was not 

still employed, the date and reason of termination and the last 

known address. True, that interrogatory sought as well the date 

of hire, date of birth and educational background, but those 

three inquiries, if not deemed relevant in the district court's 
judgment, could have been excised and the remainder of the 

interrogatory answered. Yet J & H objected to the interrogatory 

on the grounds that it was "overbroad, unduly burdensome, and 

exceeding the scope of permissible discovery." J & H then 

referred Sempier to a J & H Position Statement which does not 

even appear to be part of the record. 

 Again, Interrogatory No. 44 asked J & H if it 

voluntarily terminated the employment and/or relationship of 

Sempier with J & H. J & H's response reads: "Defendant refers 

plaintiff to pages 3 through 17 of the J & H Position Statement." 

The following interrogatory, Interrogatory No. 45, sought the 

dates on which the decision to terminate Sempier was made, and 

J & H's response was "See Interrogatory No. 44." Interrogatory 

No. 46 sought the factual basis for J & H's decision to terminate 

Sempier and/or the relationship of Sempier with J & H. The 

answer given by J & H: "Defendant refers plaintiff to the J & H 

Position Statement." The other interrogatories which we have 

reviewed -- all seemingly relevant -- have been answered in much 

the same manner. All of J & H's answers disregard the 

requirements of the Federal Rules of Civil Procedure. See Fed. 

R. Civ. P. 33(a) (requiring separate and complete answers unless 

specific objections are provided); 26(b) (defining the scope of 

discovery) (1993 version).9 

 

9. Lead counsel for J & H is apparently the New York law firm of 

Sullivan & Cromwell. Perhaps this accounts for the lack of 

familiarity with New Jersey Federal Court practice. We note, 

however, that J & H had local counsel. It is a matter of concern 

to us that the discovery practice in this case was so badly 

abused when at the least, local counsel had to have recognized 
 Without dwelling further on this subject, we observe 

that the magistrate judge did not compel the answers which 

Sempier sought. Rather, he relieved J & H from answering the 

various discovery requests and instructed Sempier to issue a 

third set of interrogatories and a third document request. The 

latter two discovery requests were no more answered than the 

earlier ones. In lieu of compelling answers to the third set of 

interrogatories served by Sempier, the district court instructed 

J & H to answer a four question "Bill of Particulars." 

 Against this background, we consider Sempier's 

arguments. Under the Federal Rules of Civil Procedure and our 

jurisprudence, district courts have broad discretion to manage 

discovery. See, e.g., Walter v. Holiday Inns, Inc, 985 F.2d 

1232, 1237 n.4 (3d Cir. 1993) (allowing over a one year delay in 

the production of documents is not an abuse of discretion); Beard 

v. Braunstein, 914 F.2d 434, 446 (3d Cir. 1990) (affirming 

monetary sanction for failure to answer interrogatories); Comdyne 

I, Inc. v. Corbin, 908 F.2d 1142, 1146 (3d Cir. 1990) (affirming 

district court order striking the pleadings for failure to answer 

interrogatories). Nonetheless, the district court's discretion 

has boundaries, and in particular, we frown upon unnecessary 

discovery limitations in Title VII, and hence ADEA, cases. See

Trevino v. Celanese Corp., 701 F.2d 397, 405 (5th Cir. 1983). In 

such cases, other courts have refused, and now we refuse, "to 

(..continued) 

the need to conform to the standards of discovery practice which 

have long been established in the District of New Jersey. 
allow procedural technicalities to impede the full vindication of 

guaranteed rights." Id. at 406. A plaintiff in an ADEA case, as 

Sempier is here, should not be hamstrung by the district court in 

limiting his discovery. In substituting a "Bill of Particulars" 

for those means of discovery authorized by the Federal Rules of 

Civil Procedure, the district court here far exceeded the 

outermost limits on its discretion. 

 Since 1938, civil discovery has been an attorneyinitiated, attorney-focused procedure. The vast majority of 

federal discovery tools operate, when used properly, almost 

entirely without the court's involvement. See Fed. R. Civ. P. 

26(f) (requiring the parties to devise and submit a discovery 

plan); Fed. R. Civ. P. 30 ("[A] party may take the testimony of 

any person, including a party, by deposition upon oral 

examination without leave of court."); Fed. R. Civ. P. 34(b) 

(production of documents); cf. Fed. R. Civ. P. 35 (providing for 

physical examinations only by leave of the court); see also

William Schwartzer, The Federal Rules, the Adversary Process, and 

Discovery Reform, 50 U. Pitt. L. Rev. 703, 714-16 (1989). 

 Indeed under the recent amendments to Federal Rule of 

Civil Procedure 26(a), which became effective December 1, 1993 in 

the District of New Jersey, a party must provide discovery 

"without waiting [for] a discovery request." Under this scheme, 

when civil litigation proceeds smoothly, the parties conduct 

discovery with minimal interference from and minimal appeal to 

the court. Through the discovery process, even before the 

amendments became effective, the attorneys obtain answers to 
questions that they feel are relevant to the issues if not 

determinative of the issues. 8A Charles Allen Wright & Arthur P. 

Miller, Federal Practice and Procedure § 2162 (1970). Nowhere in 

the process is the district court authorized to initiate its own 

questioning or to seek documents for itself. See John H. 

Langbein, The German Advantage in Civil Procedure, 52 U. Chi. L. 

Rev. 823, 827-30 (1985) (noting the difference between civil law 

procedure in which judges initiate the investigation and common 

law procedure in which the parties conduct the investigation). 

 When the parties stray from this course, Rule 37 

provides the court with tools to give the litigants new and 

proper bearings. A court may compel answers to interrogatories 

or deposition questions, compel the production of documents, or 

conversely, grant protective orders. Fed. R. Civ. P. 37; Fed. R. 

Civ. P. 26(b)(5)(c). If these measures fail, a court may order 

facts established, forbid the introduction of evidence, strike 

the pleadings, file a default judgment, dismiss the action, or 

hold a party in contempt of court. Fed. R. Civ. P. 37(b); see 

also National Hockey League v. Metropolitan Hockey Club, Inc., 

427 U.S. 639, 642 (1976) (upholding dismissal of a claim for 

discovery violations); Quinter v. Volkswagen of America, 676 F.2d 

969 (3d Cir. 1982) (affirming an order holding a party in 

contempt for violation of discovery procedures). However, none 

of the weapons in this formidable arsenal include the wholesale 

substitution of court-engineered discovery. 

 The district court was evidently not content with the 

contents of its discovery arsenal. Rather, it abandoned the 
structure and command of the Rules to revive a procedural device 

abandoned in civil practice forty-five years ago. See Singer 

Manufacturing Co. v. Axelrod, 16 F.R.D. 460, 461 (S.D.N.Y. 1954) 

(noting the elimination of the "Bill of Particulars" in favor of 

interrogatories in 1948); Wright & Miller, supra § 2167 (1970 & 

supp. 1994) (stating that Fed. R. Civ. P. 33 replaced the "Bill 

of Particulars" in equity in 1948 without lament). Although 

still used in criminal matters, a "Bill of Particulars" has not 

graced the shores of federal civil discovery since the 1950s. 8 

James Wm. Moore, Moore's Federal Practice ¶ 7.06[1] (2d ed. 

1994). Even in criminal matters, a "Bill of Particulars" is not 

generally considered a discovery device. Id. (citing among other 

cases United States v. Smith, 776 F.2d 1104, 1111 (3d Cir. 

1985)). In this case, it was not only an unwelcome and 

inappropriate incursion by the district court into the parties' 

dispute, but it severely trenched upon the Rules of Civil 

Procedure which have been crafted to provide information as to 

matters relevant to the issues disputed. Fed. R. Civ. P. 

26(d)(1). 

 Sempier had served his interrogatories in compliance 

with Federal Rule of Civil Procedure 33. The Rule provides, 

"[e]ach interrogatory shall be answered separately and fully in 

writing under oath, unless it is objected to, in which event the 

objecting party shall state the reasons for objection and shall 

answer to the extent the interrogatory is not objectionable." 

J & H believed the interrogatories were objectionable and stated 

its objections. Sempier sought to compel answers. 
 The court could have denied the discovery on the ground 

that it was privileged, burdensome, duplicative, or otherwise 

outside of the scope of discovery. Fed. R. Civ. P. 26(b). It 

could have compelled answers and awarded attorney's fees and/or 

sanctions. Fed. R. Civ. P. 37(b). It did none of these things 

nor did it comply with its obligation to consider and rule upon 

each interrogatory to which J & H objected. See Nestle Foods

Corp. v. Aetna Casualty & Surety Co., 135 F.R.D. 101, 109-112 

(D.N.J. 1990); Robbins v. Camden City Bd. of Educ., 105 F.R.D. 

49, 57-60 (D.N.J. 1983). Rather than rule upon the objections, 

the district court decided that "[the] Magistrate Judge . . . 

provided a mechanism (bill of particulars) for further discovery 

regarding the precise issue outlined in this Court's September 7, 

1993 Order." App. 611. 

 The district court may have disliked its obligation to 

examine each interrogatory and review the magistrate judge's 

ruling. Regardless of its feelings, the district court, guided 

only by its own discretion and determination of what is important 

or relevant, could not rewrite a party's questions and in effect 

serve its own set of interrogatories. When the court took upon 

itself to author the questions being asked, it virtually became a 

participant in the parties' controversy in a manner inconsistent 

with fundamental conceptions of the role of a judge in our common 

law system. 

 In this case, the district court reformulated Sempier's 

interrogatories into four broad questions about Sempier's 

performance. The magistrate judge reframed specific requests 
pertaining to the reasons considered by J & H, and the reasons 

upon which J & H actually relied to terminate Sempier, into a 

vague question, "[w]hy were Plaintiff's job responsibilities 

reassigned?" Pertinent and direct interrogatories, that were 

propounded by Sempier, sought the dates of conversations 

regarding Sempier's performance and the names of the participants 

in those discussions. Those interrogatories were replaced by the 

district court with a vague and general "Bill of Particulars." 

Because the district court's questions were, with one exception, 

general, nonspecific, and broad, the resulting answers, to the 

extent that they answered the questions at all, were 

uninformative and of little value. Sempier had good reason to 

draft specific interrogatories and had a right to expect 

correspondingly specific answers. The district court's 

substitution of its own work product denied Sempier this 

opportunity. 

 We have examined the Supplemental Bill of Particulars 

(App. 766-772) which contains the questions framed by the 

magistrate judge and the district court judge, and we have 

examined closely J & H's answers. Those answers can best be 

described as an attempt, if not to outwit, then to frustrate all 

legitimate efforts to furnish information to an adversary.10 

Moreover, whereas Federal Rule of Civil Procedure 33 provides 

that interrogatories must be answered under oath and thus may be 

evidentiary, there is no such provision in the Federal Rules of 

 

10. See note 9 supra. 
Civil Procedure for a "Bill of Particulars." Indeed, there is no 

provision at all for "Bills of Particulars" -- and for good 

reason. As we have noted, "Bills of Particulars" were replaced 

by the discovery rules of the Federal Rules of Civil Procedure. 

Wright & Miller, supra § 2167. 

 The district court's action was unauthorized by the 

Federal Rules of Civil Procedure and in violation of the 

principles of our jurisprudence. The Federal Rules of Civil 

Procedure, which must obtain Supreme Court and Congressional 

approval, not only prescribe the procedures to be followed by 

counsel, but they also prescribe the Rules under which the courts 

operate. See Umbenhauer v. Woog, 969 F.2d 25, 32 (3d Cir. 1992) 

("Neither we, the Department of State, nor the Administrative 

Office of the United States Courts possess the authority to 

circumvent, ignore or deviate from the Federal Rules of Civil 

Procedure, which were approved by the Judicial Conference of the 

United States, the Supreme Court of the United States, and 

Congress.") By venturing so far outside the parameters set by 

the Rules, the court abused its discretion. 

 Our discussion and holding here does not leave the 

district court powerless to manage the discovery difficulties 

presented by this and similar cases. On the contrary, the 

district court has considerable authority and discretion by which 

to resolve discovery disputes. Indeed, if discovery has reached 

an impasse or a nonproductive stage either through counsel's 

obstinacy, intransigence, or even incompetence, the district 

court can always, through appropriate intervention, suggest the 
proper manner in which questions should be asked and the answers 

furnished. A district court's creativity in this respect is 

unrestricted, although it cannot, of course, disregard the 

commands of the Federal Rules of Civil Procedure or, as in this 

case, substitute a "Bill of Particulars" for a party's relevant 

discovery. It can, however, always give counsel guidance and 

direction as to the manner in which discovery should proceed. 

 If, after an examination of a party's interrogatories, 

the district court determines that the interrogatories are 

inappropriate, the court can refuse to compel answers. If a 

party is unable to draft satisfactory interrogatories after a 

reasonable time for discovery has concluded, the court can limit 

further discovery. If the court feels either party was acting in 

bad faith, it can impose sanctions. Certainly, if a party, 

without justification, refuses to answer interrogatories in the 

manner required by Federal Rule of Civil Procedure 33, the court 

can compel answers under threat of sanctions. Any or all of 

these options could have been employed in this case. Any and all 

of these options would have received substantial deference upon 

review. 

VII 

 We will reverse the summary judgment of the district 

court dated March 9, 1994 and remand. On remand, the district 

court is directed to vacate the magistrate judge's order of 

August 7, 1993 and to vacate its own order of November 3, 1993 

which approved and modified a "Bill of Particulars." The 
district court is also directed to permit and schedule additional 

appropriate and adequate discovery pursuant to the Federal Rules 

of Civil Procedure so that further proceedings, including trial, 

may be conducted consistent with the foregoing opinion.11

 

11. The district court's order of March 9, 1994 dismissed Counts 

Four through Six without prejudice to Sempier proceeding on those 

counts in state court. Those counts involved state law contract 

and corporate law causes of action. The record before us is 

accordingly silent as to those matters. Nor do we know if those 

claims are proceeding in state court. It will be for the 

district court on remand to ascertain and resolve the status of 

those claims.