Leyva v. Computer Science, (3rd Cir. 2006)
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N O T PRECEDENTIAL
U N IT E D STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-1622
MAUREEN E. LEYVA,
Appellant
v. C O M P U T E R SCIENCES CORPORATION,
a Nevada corporation
On Appeal from the United States District Court
fo r the District of Delaware
(D .C . No. 04-cv-00002)
D is tric t Judge: Honorable Kent Jordan
Submitted Under Third Circuit LAR 34.1(a)
F e b ru a ry 28, 2006
B e f o re : SLOVITER, FUENTES, Circuit Judges, and BRODY,* District Judge
(F ile d : March 7, 2006)
O P IN IO N
S L O V IT E R , Circuit Judge A p p e lla n t Maureen Leyva alleges that her former employer, Computer Sciences C o rp o ra tio n ("CSC" or "the Company"), violated her rights under the Age Discrimination in Employment Act, 29U.S.C. § 621, et seq. ("ADEA"), and breached the implied c o v e n an t of good faith and fair dealing.1 The District Court granted CSC's Motion for S u m m a ry Judgment with respect to both of these claims. Leyva timely appealed.
I.
L e yv a worked for CSC as a Developer from August 4, 1997 to June 19, 2002; she w a s an at-will employee. Leyva's performance reviews throughout her employment p eriod were generally positive, but she had a history of strained relations with supervisors a n d co-workers.
B y the Spring of 2002, the project to which Leyva was assigned as an "Application A rc h itec t"( th e "GTS project" 2) began moving from its "development" phase to its Leyva's two other allegations have been dismissed and a re not at issue in the present appeal. On March 4, 2004, the D istric t Court granted CSC's Motion to Dismiss Leyva's claim o f retaliatory discharge in violation of the ADEA. The parties s tip u la te d on October 25, 2004 that Leyva's claim of c o n stru c tiv e discharge in violation of the ADEA was dismissed w ith prejudice.
Leyva has abandoned her state law claim that CSC b re a ch e d the covenant of good faith and fair dealing by failing " to identify or argue [the] issue in h[er] opening brief;" such f a ilu re "constitutes waiver of that issue on appeal." United S tates v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
The Global Treasury System project involved selecting, d e v e lo p in g , and implementing a technological solution to the " su p p o rt" phase. CSC informed Leyva that her development skills soon would no longer b e needed on the GTS project and transferred Kerri Siers to the project under the title " A p p lic a tio n Support Architect." A t a meeting CSC convened on April 12 between Leyva and her managers to a d d re ss Leyva's concerns about the addition of Siers to the project, Jane Reese, one of L e yv a 's managers, told Leyva that she could remain on the project "beyond the J u ly/A u g u s t timeframe," but that she wanted to see improvements in Leyva's working re la tio n s h ip s .3 Reese told Leyva that the interpersonal relationships between her and o th e rs on the GTS project were "unacceptable." App. at 134, 284.
In response to Leyva's request for examples of how her working relationships had b e e n "unacceptable" and what types of improvements were expected of her "if [she was] to stay with the [GTS project] beyond the July/August timeframe," a second meeting was p la n n e d for June 14, 2002 between Leyva, Reese, and Maureen Summers (a Human R e so u rc e s employee and manager on the GTS project). In the interim, Leyva spoke with R e e se 's boss and told him she wanted to stay on the GTS project "to at least make [her p e n sio n ] vesting [date]." App. at 187.
A t the June 14 meeting, Reese told Leyva that she did not "positively affect o th e rs," "couldn't work with others," "wasted people's time," and did not communicate accounting needs of DuPont, one of CSC's customers.
L e yv a agreed with Reese's assessment of what Leyva s h o u ld do to improve her working relationships, and admitted th a t her working relationships were "not good in some in sta n c e s" and were in need of improvement. ef fe ctiv ely with others on the project, presenting several emails as examples of Leyva's b e h a v io r. App. at 286. There was no deadline set for improvements and Leyva thanked R e e se and Summers for their recommendations and observations. The parties agree that L e yv a was never pressured to resign during the June 14 meeting, and that nobody at the m e e tin g told her she was being fired.
Later that afternoon, Leyva called Summers from her home and told Summers that s h e felt the meeting had been a "blistering attack" on her, App. at 290, and that she was g o in g away for the weekend to recuperate. There is a dispute as to whether Leyva re sig n e d during this conversation, a dispute we need not resolve.
L e yv a argues that because she "believed [CSC was] firing [her]" at the June 14 m e e tin g , Leyva told Summers during their phone conversation that she "was going to d ro p off [her] computer and badge on Monday." App. at 291. It is undisputed that on S u n d a y, June 16, 2002, Leyva went to CSC to drop off her home-use work computer and, a c co rd in g to her, to "pick up some papers and things that [she] had at the office," going o n Sunday because she didn't want to see anyone in the office. App. at 292. Security p e rs o n n e l prevented her from entering the building. Leyva left her CSC identification b a d g e and her computer with the security officer because it "was useless, because they w o u ld n 't let me in." App. at 295.
Leyva did not return to work on Monday, June 17, 2002 because she was "totally e x h a u ste d ." That day, Summers called Leyva to ask how she felt and request that Leyva s e n d an email to CSC; Leyva did not do so. On Tuesday morning, June 18, Leyva called S u m m ers and told her that she "needed to take a leave or some time off;" Summers s u g g e s te d that Leyva contact the Employee Assistance Program (EAP). App. at 294.
EAP told Leyva she was not eligible. She also called her managers, including Reese and S u m m e rs , and left voicemail messages asking them to "please" let her stay on long e n o u g h to "get [her] vesting." App. at 188.
Leyva never returned to CSC. On Wednesday, June 19, 2002, Summers called L e yv a and told her to submit a resignation letter by five o'clock that afternoon because th e management was meeting the following day. Leyva asked whether she could submit a resignation effective August 6, her pension vesting date. Summers told her "that if [ sh e ] submitted a resignation letter, [she] could be allowed to wrap up things with the c lie n t and keep [her] vesting." App. at 296. Based on this information, Leyva believed th a t "when [she] signed the resignation letter [she] would be getting the vesting." App. at 3 1 2 . That same day, Leyva sent an email to Summers stating: T h a n k you for your voicemail today to my home which included the indication th a t an `effective date' consideration could be presented to the Management Team.
Below is the Resignation letter with [sic] has the effective date to be presented to th e Management Team. . . .
I submit my resignation as Senior Member of the Programming Staff from C o m p u te r Sciences Corporation with an effective date of August 6 th, 2002.
M y 5-year vesting date at CSC is August 4, 2002, and that is the reason for first w e e k of August effective date request.
A p p . at 69-70. The following day, the CSC management team considered the letter and ac ce p ted Leyva's resignation effective June 19, 2002, the date of her resignation letter, ra th e r than on the date she had requested.
L e yv a filed her complaint against CSC and, after discovery was concluded, the D is tric t Court granted CSC's motion for summary judgment. The District Court held that L e yv a had not made out a prima facie case of age discrimination because there was no g e n u in e issue of material fact as to whether she had suffered an adverse employment a c tio n . It concluded that Leyva had "raised no more than a scintilla of evidence" against " a wealth of evidence overwhelmingly demonstrat[ing] that [she] resigned on [June] 1 4 th ." Moreover, it noted that "[e]ven assuming . . . that an issue of material fact existed a s to whether [Leyva] resigned on June 14 th, it is uncontested that she sent a resignation letter to [CSC] on Wednesday, June 19 th, and that is dispositive" because "[a]n e m p lo ye r's decision to accept a resignation immediately, rather than accepting an e m p lo ye e 's request that the resignation be effective at a future date, does not constitute an a d v e rs e employment action." App. at 21-23 (citing Wynn v. Paragon Sys., 301 F. Supp.
2 d 1343, 1354 (S.D. Ga. 2004)).
II.
W e exercise plenary review of the District Court's grant of summary judgment, a p p lyin g the same standard of review which the District Court should have applied.
MBIA Ins. Corp. v. Royal Indem. Co.,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). However, in determining w h e th e r more than a scintilla is extant, a court must "not weigh the evidence or make c re d ib ility determinations; these tasks are left to the fact-finder." Boyle v. County of A lle g h e n y Pa., 139 F.3d 386, 393 (3d Cir. 1998); accord MBIA, 426 F.3d at 209.
T h e ADEA prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because o f such individual's age." 29U.S.C. § 623(a)(1). Where, as here, a plaintiff does not h a v e direct evidence of age discrimination, we employ a three-step burden-shifting a p p ro a c h under McDonnell Douglas v. Green, 411 U.S. 792 (1973). Fakete v. Aetna, Inc., 3 0 8 F.3d 335, 337-38 (3d Cir. 2002). Leyva must first establish a prima facie case of age d is c rim in a tio n by showing that: (1) she was at least forty years of age at the time she was a lleg e d ly discharged; (2) she was qualified for the position from which she was allegedly d is c h a rg e d ; (3) she suffered an adverse employment action (e.g., discharge); and (4) her " e m p lo ye r retained someone similarly situated to [her] who was sufficiently younger." M o n a c o v. American General Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004). If Leyva m ak es her prima facie showing, the burden shifts to CSC to "proffer a nondiscriminatory re a s o n for its adverse employment action." Sheridan v. E.I. DuPont de Nemours and Co., 1 0
In the present case, the District Court held that Leyva had not made out a prima f a cie case because there was no genuine issue of material fact as to whether she had s u f f ere d an adverse employment action. Indeed, the question of whether Leyva has e sta b lis h e d the third and fourth prongs of her prima facie case remains disputed by the p a r tie s . However, assuming arguendo that Leyva has made a sufficient prima facie case to survive summary judgment, she failed to meet her burden under Fuentes to show a g e n u in e issue of fact that CSC's stated reasons for her termination were pretextual.
C S C has proffered as its legitimate, non-discriminatory reasons for Leyva's d ep arture the following: (1) Leyva's strained interpersonal relations with her co-workers (a n d failure promptly to seek feedback about this problem), (2) Leyva's inability e f f e c tiv e ly to transfer knowledge to other members of the GTS project, and (3) the fact th a t the GTS project was moving into a "support" phase in which her "development" sk ills were no longer needed. Therefore, we review whether Leyva has met her burden to c re a te a triable issue that CSC's legitimate reasons for discharging her were pretextual.
Under the first Fuentes prong for determining pretext, Leyva claims that there are w e a k n es s e s and implausibilities in CSC's proffered reasons for its adverse employment a c tio n . However, there is insufficient evidence to reasonably establish such im p lau sib ility.4 (See generally Appellee's Br. 18-21, 28-29.) Leyva also presents in s u f f ic ie n t evidence of pretext under Fuentes's second prong--i.e., that discrimination w a s more likely than not a motivating factor for her discharge.
Leyva makes two arguments under the second Fuentes prong. First, Leyva argues th a t the fact that she was terminated six weeks shy of her vesting date is evidence of d is c rim in a tio n . However, under CSC's plan, the vesting of an employee's pension d e p e n d ed on the employee's completion of five years of service at CSC, not age. As the S u p r e m e Court has stated, "Because age and years of service are analytically distinct, an e m p lo ye r can take account of one while ignoring the other, and thus it is incorrect to say th a t a decision based on years of service is necessarily `age based.'" Hazen Paper Co. V.
B ig g in s , 507 U.S. 604, 611; see also Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 1 5 2 (5th Cir. 1995) (holding that the consideration of "fast approaching eligibility for re tire m e n t benefits" in making a termination decision is not age discrimination); Sullivan v . Standard Chlorine, 845 F. Supp. 167, 181 n. 12 (D. Del. 1994), aff'd without op. No.
94-7220, 1995 U.S. App. LEXIS 5122 (3d Cir. Feb. 24, 1995).
U n d er the second Fuentes prong, Leyva also argues "that [CSC] treated other, s im ila rly situated persons not of h[er] protected class more favorably." Fuentes, 32 F.3d For example, Leyva unpersuasively claims: (1) that her o n e request for feedback--on June 14, 2002--demonstrates that C S C 's general assertion she failed to seek feedback is pretextual; a n d (2) that CSC's claim that Leyva's interaction with co w o rk e rs involved too much unnecessary explanation and not e n o u g h explanation where it was actually needed is "logically in c o n s is te n t." Appellant's Br. at 19-20. a t 765. However, Leyva points to no, or, at most, de minimus, evidence to support this a rg u m e n t. She cites only two events in which she was similarly situated to a co-worker yo u n g e r than she,5 and neither supports her claim that CSC was biased against her on the b a sis of age. First, Leyva argues that she was not given a "robust" enough computer to d o her work. Although Leyva's computer did have an older operating system than those o f three of her younger co-workers, she eventually was given a new computer.6 Second, L e yv a points to evidence that Ray Netta, a younger co-worker, was given support staff In the two other events she references concerning the s e c o n d Fuentes prong, Leyva was not similarly situated to the yo u n g e r employees in question. First, she argues that she was tre a te d differently than younger workers in terms of "comp tim e ." She argues that while younger co-workers were allowed c o m p time to have Fridays off, work part time, or take on-line c o u rse s, she was only allowed two days off for Christmas in 2 0 0 1 despite the fact that she requested three and was never o f f e re d comp time for an on-site residency for which she e x p e n d ed vacation days. On its face, these were not similar s itu a tio n s . There is no evidence that Leyva would have been tre a te d differently than the younger workers if she had asked for c o m p time for comparable reasons. Second, Leyva argues that C S C 's scrutiny of her time management exceeded its scrutiny of J u lie Meluskey, a younger co-worker, because Leyva was c ritic iz e d for using her email account inappropriately, whereas M e lu s k e y was not criticized for "for being on the phone a lot and h a v in g friends visit her." Appellant's Br. at 18 (citing App. 302 3 0 3 ). This comparison fails because the two co-workers were n o t similarly situated: CSC reprimanded Leyva for one in d isc re tio n and failed to reprimand Meluskey for an entirely d iffe re n t indiscretion. In its brief, CSC points to record evidence sh o w in g that Leyva's allegations of discriminatory treatment are in a c c u r a te .
Leyva herself points to testimony that CSC also e x p e rie n c ed delays in updating computer software for young e m p lo ye e s . (Appellant's Br. at 22 (citing App. 411-12).) w h ile she was not. This single instance of favorable treatment granted to only one yo u n g e r co-worker (Leyva has not alleged other younger co-workers were provided s u p p o rt staff), is weak evidence of age discrimination.7 There is nothing to show that C S C treated her differently than similarly situated younger employees in these minor resp ec ts because of age. In short, Leyva did not provide a sufficient basis for a rea so n ab le fact-finder to determine "that an invidious discriminatory reason was more lik e ly than not a motivating or determinative cause [of Leyva's discharge]." Fuentes, 32 F .3 d at 764.8 W e will affirm the District Court's grant of summary judgment to CSC on the g ro u n d s that Leyva has failed to create a triable issue that CSC's legitimate, nond isc rim in a to ry reasons for discharging her were pretextual.
* Hon. Anita B. Brody, United States District Court for th e Eastern District of Pennsylvania, sitting by designation. Moreover, Leyva has not provided any evidence to rebut C S C 's assertion that budgetary constraints, a non-discriminatory m o tiv e , prevented it from providing support to employees other th a n Netta. In granting summary judgment, the District Court found s u p p o rt in Leyva's statements to a private psychiatric facility, w h e re she went for psychological help, that "she resigned from h e r job"and that she "quit Friday." App. at 462, 463. The p a rtie s gave considerable attention to whether this evidence was p ro p e rly considered. Because we do not rely on that evidence, w e need not discuss that issue.
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This document cites
- U.S. Court of Appeals for the Third Circuit - Patrick J. Boyle, Appellant, v. County of Allegheny Pennsylvania; Larry Dunn, Commissioner, in His Individual Capacity; Bob Cranmer, Commissioner, in His Individual Capacity, Appellees., 139 F.3d 386 (3rd Cir. 1998)
- U.S. Court of Appeals for the Third Circuit - Luis A. Fuentes, Appellant, v. Steven P. Perskie, Chairman of the New Jersey Casino Control Commission; the New Jersey Casino Control Commission., 32 F.3d 759 (3rd Cir. 1994)
- US Code - Title 29: Labor - 29 USC 623 - Sec. 623. Prohibition of age discrimination
- US Code - Title 29: Labor - 29 USC 621 - Sec. 621. Congressional statement of findings and purpose
- U.S. Court of Appeals for the Third Circuit - Robert R. Monaco, Appellant v. American General Assurance Company, an Illinois Corporation; American General Corporation, a Texas Corporation; William Leary; John Doe; Richard Roe., 359 F.3d 296 (3rd Cir. 2004)
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