Ellis Benjamin v. E.i. Du Pont De Nemours

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4167
_______________________________
ELLIS BENJAMIN,
Appellant
v.
E.I. DU PONT DE NEMOURS AND COMPANY
____________________________________
On Appeal From the United States District Court
For the District of Delaware
(D.C. No. 01-CV-00303)
District Judge: Honorable Sue L. Robinson
_______________________________________
Argued: July 23, 2003
Before: ALITO, FUENTES, and BECKER,
Circuit Judges.
Filed September 5, 2003
GARRY W. ABER (ARGUED)
Aber, Goldlust, Baker, & Over
702 King Street, Suite 600
P.O. Box 1675
Wilmington, DE 19899
Counsel for Appellant
RAYMOND M. RIPPLE (ARGUED)
DONNA L. GOODMAN

-- 1 of 13 --

2
E.I. du Pont de Nemours and Company
Legal Department
1007 Market Street
Wilmington, DE 19898
Counsel for Appellee
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
Ellis Benjamin appeals from the District Court’s order granting summary judgment
to defendant E.I. DuPont De Nemours & Co. on this action alleging discrimination in
violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et
seq. Benjamin, a DuPont employee since 1988, was released as part of a major layoff that
affected approximately one-third of the personnel at his location. Because we conclude
that Benjamin has made a prima facie case of age discrimination and has adduced
evidence from which a fact finder could reasonably disbelieve DuPont’s articulated
reasons for his termination, we will reverse the District Court’s grant of summary
judgment.
I
Benjamin joined DuPont in 1988 as a member of the Agricultural Products
Division. During his eleven years with DuPont, Benjamin undertook extensive education
and training in chemistry to supplement the 72 college credits in biology and chemistry he

-- 2 of 13 --

3
had received as an undergraduate (he had no college degree). At the time of his
discharge, he had risen to the position of Senior Assistant Chemist.
In the summer of 1999 DuPont began a reduction in force in its Agricultural
Products Division. For this purpose, DuPont set up a process where committees would
meet to analyze each department. Selection criteria were developed to facilitate retention
of employees with demonstrated skills, knowledge and ability to perform current and
future work. Each committee had to rank employees by assigning them scores from 1-5 in
a variety of categories. An employee’s overall score was reached by totaling the
individual scores in each category. An initial cut-off score was set. Employees with that
score or below would be terminated.
The committee that decided whether to retain Benjamin consisted of Dr. Donald
Morgan, who was Benjamin’s second-line supervisor, Dr. Thomas Pappenhagen, who had
had no prior contact with Benjamin, and Dr. Yih-Fen Maa, who had worked with
Benjamin in a few studies in 1995, 1996 and 1997. The evaluation process, which
resulted in Benjamin’s termination, took place in two stages. First, the committee
evaluated the qualifications of forty-three employees and ranked them against the
selection criteria. Benjamin’s total score was 22, which placed him in a four-way tie just
above the cut-off score. However, after the initial cut-off, the selection committee
realized that a further reduction of two more candidates was required. The committee
focused on the employees in the four-way tie: Benjamin was selected as one of the two

-- 3 of 13 --

4
employees to be discharged.
Benjamin claims that age discrimination occurred in both stages of the selection
process. First, he submits that the committee failed to follow the established procedure in
conducting the selection process. The committee was instructed not to consider as
qualification the educational degrees possessed by the applicant when evaluating his or
her knowledge of analytical chemistry. Instead, the committee was to judge the
“demonstrated knowledge” and “demonstrated skill” of each applicant. Benjamin
contends that in contravention of these instructions, the committee relied only on whether
the candidates had a B.S. in chemistry, instead of determining whether the candidate had
the knowledge equivalent to that degree. He suggests that this misapplication implies age
discrimination insofar as older workers are less likely than younger workers to have
college degrees. Benjamin argues that he should have received a higher score in this
category, because even though he did not have a B.S. in chemistry, he had knowledge
equivalent to that degree.
Benjamin also argues that in the second stage of the selection process he was
deselected because of his age, and that DuPont’s rationale for his dismissal was
pretextual. Benjamin points out that when the final cut was made, of the four chemists
who were tied with a score of 22, the two youngest (ages 25 and 43) were selected to
remain, while the two oldest (ages 53 and 46) were terminated. The stated reason for
Benjamin’s termination was his limited ability to network and his lack of interpersonal

-- 4 of 13 --

5
skills. Benjamin points out that his employment evaluations show that networking was
one of his greatest strengths. He claims that based on these evaluations a fact finder could
reasonably disbelieve DuPont’s articulated reasons for his termination.
The District Court concluded that Benjamin had made out a prima facie case.
Having found a prima facie case, however, the District Court granted summary judgment
for DuPont. The District Court concluded that DuPont articulated a legitimate reason for
not choosing Benjamin, while Benjamin was unable to produce evidence from which a
fact finder could either: (1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe that an invidious discriminatory reason was more likely than not a motivating
or determinative cause of the action. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108 (3d Cir. 1997).
The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and
1343, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over the District Court’s grant of summary judgment and apply the same standard
the District Court should have applied. Farrell v. Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000).
II.
Under the burden-shifting analysis established by the Supreme Court in
Macdonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to survive summary
judgment a plaintiff must first prove a prima facie case of discrimination. If the plaintiff

-- 5 of 13 --

6
does so, the burden then shifts to the defendant “to articulate some legitimate,
nondiscriminatory reason” for its action. Id. at 802. If the defendant meets its burden of
production, any presumption of discrimination drops from the case and the plaintiff has
the burden to adduced evidence from which a fact finder could reasonably disbelieve the
employer’s articulated reasons for the action. Id. at 804.
When the plaintiff alleges unlawful discharge based on age, the prima facie case
requires proof that: (1) the plaintiff was a member of the protected class, i.e., was 40
years of age or older; (2) the plaintiff was discharged; (3) the plaintiff was qualified for
the job; and (4) the plaintiff was replaced by a sufficiently younger person to create an
inference of age discrimination. Keller, 130 F.3d at 1108 (citing Sempier v. Johnson, 45
F.3d 724, 728 (3d Cir. 1995)). In this case, the parties agree that Benjamin was a member
of the protected class and that he was discharged. They disagree, however, as to whether
he was qualified for the job and replaced by a sufficiently younger person.
DuPont argues that Benjamin was discharged because he was less qualified for the
job than the three other candidates with the same score. DuPont points out that the
selection committee concluded that Benjamin’s limited ability to network and lack of
interpersonal skills rendered him a less-competitive candidate.
The District Court held that Benjamin established that he was qualified for the
job. We agree. First, the record supports the conclusion that Benjamin’s initial score
could have been 23, which would have placed him above the four-way tie score.

-- 6 of 13 --

1Dr. Morgan testified as follows:
Q: Could somebody get a three there without having a B.S.?
A: I do not believe so, but I don’t remember of (sic) any cases like that.
Q: You rated [Benjamin’s] analytical knowledge without knowing the
amount of training he had?
A: Mr. Benjamin did not have a Bachelor’s in chemistry. So we rated him
on not having the Bachelor’s in Chemistry.
7
Qualification for the position was based on knowledge of analytical chemistry, and the
parties agree that the standard required was knowledge equivalent to a B.S. degree in
chemistry. The committee assigned Benjamin a score of 2 out of 5 in this category
without considering whether he had the knowledge equivalent to a B.S. in chemistry. As
Dr. Morgan’s testimony reveals, the committee relied solely on the fact that Benjamin did
not have a B.S. in chemistry.1
Furthermore, even if Benjamin could not have gotten a higher score, his initial
score was not below the automatic cut-off. In fact, others with the exact same score
retained their jobs. As the District Court recognized, McDonnell Douglas requires only
that a person be a qualified applicant, not the most qualified applicant. In sum, construing
the facts in the light most favorable to Benjamin, we conclude that Benjamin established
that he was qualified for the job.
DuPont also argues that Benjamin provided no evidence that could lead a
reasonable fact finder to conclude that younger employees were treated more favorably in
the selection process related to the downsizing. DuPont argues that, prior to the

-- 7 of 13 --

8
downsizing, 74% of the employees fell within the protected class. After the downsizing,
72% were in the protected class, a statistically insignificant difference. Likewise, the
average age pre-downsizing was 43, and the average age post-downsizing was 41.
DuPont argues that downsizing data only has probative value if the difference between
the pre-downsizing population and the terminated population is statistically significant.
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 339 n.20 (1977).
Benjamin replies that this analysis misses the mark because the inquiry is not “pre-
downsizing population” versus “post-downsizing population”; rather, it is the more
individualized question whether Benjamin was terminated instead of another person
merely because he was older. As we stated in Showalter v. University of Pittsburgh
Medical Center, 190 F.3d 23 (3d Cir. 1999), the question is whether the retained
employee is “sufficiently younger” than the non-retained employee. In Showalter, the
difference in ages was eight years; here, it was seven and twenty-eight years respectively,
certainly a comparable spread. In sum, we agree with the District Court’s conclusion that
Benjamin was replaced by a significantly younger person, and that he made out a prima
facie case of age discrimination.
III.
Upon concluding that Benjamin has satisfied the first McDonnell Douglas step,
the burden of production shifts to DuPont, which must offer evidence to support a
finding that it had a legitimate, non-discriminatory reason for the discharge. The District

-- 8 of 13 --

9
Court concluded that DuPont met its burden of production. The selection committee
determined that Benjamin was less qualified for the position than the other applicants —
he lacked networking ability and interpersonal skills, and did little to increase his
technical skills .
Benjamin, however, takes issue with the committee’s conclusion that he had
limited ability to network. Benjamin relies on his Discussion of Contribution reports
(“DOCs”), which are yearly reviews drafted by the employees and attested by the
immediate and second-line supervisors. Benjamin claims that these evaluations show that
DuPont’s articulated reasons are mere pretext. For example, in his most recent DOC,
networking was described as one of Benjamin’s greatest strengths. Further, attacking the
the committee’s conclusion that he lacked interpersonal skills, Benjamin cites reviews in
which he was described as pleasant to work with, and a successful mentor. As to the
accusation that he did little to increase his technical skills, his reviews stated that he was
constantly seeking new learning opportunities, and viewed as a resource to the analytic
community. Likewise, he was said to have diligently mastered new technology. In
presenting this evidence, Benjamin has certainly demonstrated sufficient “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder could rationally find
them ‘unworthy of credence.’" Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1996)
(citation omitted).

-- 9 of 13 --

10
The District Court granted summary judgment for DuPont in spite of the evidence
adduced by Benjamin. The District Court stated that Benjamin’s argument was
unavailing “since these performance reviews were often written by plaintiff himself and
attested to by his supervisors later.” The District Court points out that in his last DOC,
Benjamin stated that his future goals were to relate more to peers, to network with others
and to relate to others in a more productive fashion. The Court concluded that these
statements supported the committee’s articulated reasons for Benjamin’s termination and
show that they were not merely a pretext for discrimination.
We disagree. The mere fact that Benjamin wrote the reviews does not mean that
no reasonable jury could credit them when two supervisors signed off on them. They did
not have to do so. Likewise, although the District Court correctly noted that Benjamin
wrote in his last DOC that his future goals were to “relate more to peers and by
networking” and to “network with others,” it is possible that a jury could interpret this to
mean that he wanted to improve upon existing skills, not that he was currently deficient
in that area.
DuPont goes to great lengths to explain that even if the DOCs show that
networking was one of Benjamin’s strengths, they were not considered by the selection
team during the meeting. Rather, Dr. Morgan, as Benjamin’s second-line supervisor,
represented Benjamin’s qualifications to the selection team. Therefore, DuPont
concludes that the DOCs are completely irrelevant to a determination as to the validity of

-- 10 of 13 --

11
the selection team’s assessment. DuPont’s argument, however, is unconvincing. The
committee was explicitly instructed to review the DOCs, and to gather relevant
information about the candidates. If the committee did not base its decision on anything
concrete, such as the DOCs, a jury could infer that the committee members made their
decision based on age.
In sum, Benjamin has presented sufficient evidence that contradicts and shows
inconsistencies in DuPont’s proffered reasons to allow a reasonable fact finder to
rationally find them “unworthy of credence.” Fuentes, 32 F.3d at 765 (3d Cir. 1994)
(quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
The District Court’s order granting summary judgment to the defendants will be
reversed.

-- 11 of 13 --

12
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Judge Edward R. Becker
Circuit Judge

-- 12 of 13 --

13

-- 13 of 13 --