Anthony T. Marione, Jr. v. METROPOLITAN LIFE INSURANCE CO. Appeal from the United States District Court for the…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2359
ANTHONY T. MARIONE, JR.,
Appellant
v.
METROPOLITAN LIFE INSURANCE CO.
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-03034)
District Judge: Honorable Garrett E. Brown, Jr.
Submitted Under Third Circuit LAR 34.1(a)
July 13, 2006
Before: SLOVITER, McKEE and RENDELL, Circuit Judges
(Filed: July 31, 2006)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Anthony Marione (“Marione”) appeals the District Court’s grant of summary
judgment in favor of defendant Metropolitan Life Insurance Company (“MetLife”) on
Marione’s claim that MetLife violated the Age Discrimination in Employment Act, 29
U.S.C. § 621, when it terminated him in February 2002, during a reduction in force

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(“RIF”). In granting MetLife’s summary judgment motion, the District Court concluded
that Marione had not demonstrated, under the test articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), that MetLife’s stated reasons for terminating his
employment were a pretext for age discrimination. We agree and will affirm.
I.
Marione worked for MetLife in various capacities from 1968 to 2002. Originally
hired as a management trainee, Marione held a number of at-will employment positions,
eventually becoming a senior data administrator for the Data Analysis and Development
(“DAD”) Unit. The DAD Unit was a sub-unit of MetLife’s Information Technology
Department, responsible for providing technical support and services to various lines of
business.
In late 2001, after being notified of a decrease in funding to the DAD Unit,
MetLife determined there was a need to eliminate a number of employees. In December,
the Unit’s managers met to rank and rate their 29 employees, 19 of whom were senior
data administrators. In the end, MetLife decided to terminate the five lowest-ranked
individuals who were deemed non-essential to the department. Marione was one of the
five. Employees were chosen for two reasons: 1) their primary responsibilities involved
doing maintenance work relating to data analysis and modeling, rather than design and
creation of new databases, and 2) they did not possess the skills sets that included the
emerging technologies into which the DAD Unit was expanding.
Upon notification of his termination, Marione was given a Separation Agreement,

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which, if signed, would allow him to receive one year’s salary ($81,501), a $2,000 bonus,
and outplacement assistance. Although Marione had a number of questions about the
agreement and had asked for an extension in signing it, he voluntarily executed the
agreement on March 4, 2002. He then received one lump-sum check, which was one of
the payment methods offered under the Agreement. Marione filed an unsuccessful age
discrimination charge with the EEOC in May 2002 and, in June 2003, initiated this
lawsuit. After the District Court granted summary judgment in favor of MetLife, Marione
appealed.
II.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We review a grant of
summary judgment de novo, applying the same test as the district court. Tomasso v.
Boeing Co., 445 F.3d 702 (3d Cir. 2006). Summary judgment is proper when “there is no
genuine issue as to any material fact and . . . the moving party is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(c). An issue of material fact is genuine only when
such evidence could cause a reasonable jury to return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the non-moving party
bears the burden of proof, the moving party’s burden may be discharged by showing an
absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett,
477 U.S. 317 (1986). The burden then shifts to the non-moving party, who “may not rest
on the mere allegations or denials of the adverse party’s pleadings . . . but must set forth
specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P 56(e). If the

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adverse party does not so respond, summary judgment shall be entered against the
adverse party. Id.
III.
When analyzing employment discrimination allegations arising under ADEA, we
follow the burden-shifting framework set forth by the Supreme Court in McDonnell
Douglas. First, a plaintiff must establish a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802. The District Court determined, and the record
supports, that Marione did establish a prima facie case. Therefore, this element has been
satisfied and is not at issue on appeal.
Establishment of a prima facie case creates a presumption of discriminatory intent
that a defendant has the burden to rebut by setting forth some legitimate, non-
discriminatory reason for its actions. Id. Here, MetLife claims that the RIF was made
necessary by cutbacks in the DAD Unit’s budget. As a result, employees were selected
for termination based on “a consensus assessment of their contributions to the DAD Unit
within the past year and their abilities to perform emerging technologies.” Appellee’s Br.
at 32. A MetLife manager testified that after learning of the budget cutbacks, she and the
other managers engaged in a “lifeboat” exercise, assessing which individuals were most
needed in order to accomplish the DAD Unit’s goals for 2002.
We recognize that in a RIF, a company is often forced to terminate “the worst of
the best,” and therefore an adequate employee who is under-performing relative to his
peers may still be chosen for termination. Tomasso, 445 F.3d at 711 n.9. We therefore

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find MetLife’s stated reasons, which need only to be articulated, and need not be proven
at this stage, to be legitimate. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993). See also Texas Dep’t Of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)
(“The defendant need not persuade the court that it was actually motivated by the
proffered reasons . . . [t]he explanation provided must be legally sufficient to justify a
judgment for the defendant.”).
After a defendant has stated legitimate, nondiscriminatory reasons for its actions,
plaintiff must then be afforded a fair opportunity to show that defendant’s reasons are in
fact pretextual. McDonnell Douglas, 411 U.S. at 804. See also Kautz v. Met-Pro Corp.,
412 F.3d 46, 466-67 (3d Cir. 2005); Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108 (3d Cir. 1997); Fuentes v. Perskie, 32 F.3d 759, 761-64 (3d Cir. 1994). The
standard for evaluating whether a plaintiff has met his burden to demonstrate pretext at
the summary judgment stage is well-established:
[T]o defeat summary judgment when the defendant answers the plaintiff’s
prima facie case with legitimate, non-discriminatory reasons for its action, the
plaintiff must point to some evidence, direct or circumstantial, from which a
fact finder could reasonably 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 employer’s
action.
Fuentes, 32 F.3d at 764. Therefore, the relevant question on appeal is whether Marione
has offered any evidence from which a fact finder could reasonably disbelieve MetLife’s
stated reasons for terminating Marione or find that MetLife was more likely than not
motivated by discrimination.

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To show that an employer’s legitimate reasons should be disbelieved, a plaintiff
must offer evidence that would allow a fact finder to reasonably infer that “each of the
employer’s proffered non-discriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action.” Id. Furthermore, he must
present “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons . . . that a reasonable fact-
finder could rationally find them unworthy of credence.” Id.
Marione counters MetLife’s stated reasons by criticizing the company’s
performance evaluation methods, disapproving of its management style, and disagreeing
with MetLife’s assessment of his potential in comparison to others. All of these
arguments miss the mark. “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 discriminatory animus motivated the employer, not whether
the employer is wise, shrewd, prudent or competent.” Id. at 765. See also Keller, 130
F.3d at 1109 (“The question is not whether the employer made the best or even a sound
business decision; it is whether the real reason is discrimination.”); Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir. 1988) (“Our inquiry . . . is not an independent
assessment of how we might evaluate and treat a loyal employee.”); Logue v. Int’l Rehab.
Assocs., Inc., 837 F.2d 150, 155 n. 5 (3d Cir. 1988) (“[O]ur task is not to assess the
overall fairness of . . . [the] employer’s actions.”). Marione makes it clear that he objects
to the way MetLife treated a loyal employee of more than 30 years. Although we

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sympathize with his situation, we find nothing that would lead us to believe that its
actions or underlying motivations were based on improper considerations.
Additionally, Marione claims that because some younger, lower-ranked and “less
qualified” employees were retained, MetLife’s stated reasons for including him in the RIF
were untrue. MetLife properly addressed these discrepancies with explanations supported
by affidavits and testimony. For example, MetLife retained one younger, lower-ranked
employee because he maintained an essential line of products. Three other younger
employees were not ranked because they had been hired too recently to assess their
performance. Additionally, they worked on emerging technologies and as repository
administrators, performing different functions than those who were terminated. In short,
Marione fails to point to any evidence that would lead a reasonable jury to believe that
MetLife’s behavior was inconsistent with its explanations.
Under Fuentes, Marione could succeed at the summary judgment stage if he were
to offer evidence showing that discrimination was more likely than not a motivating
factor. Specifically, Marione must “point to evidence that proves age discrimination in
the same way that critical facts are generally proved - based solely on the natural
probative force of the evidence.” Keller, 130 F.3d at 1111. Marione claims that
MetLife’s age statistics show a pattern of discrimination. We disagree. Employees of all
ages were terminated in the RIF, and employees of all ages were retained. The average
age of the department remained essentially the same and, in fact, 22 out of 30 employees
who remained were members of the protected class. Marione also claims that

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management revealed its discriminatory intent when it publicly awarded him for his years
of service and discussed retirement options with him and another employee.
Additionally, he proffers that MetLife purposely denied him training because of his age
and rigged performance ratings to rank older employees lowest. The record does not
support these accusations. Finally, Marione claims that MetLife made faulty disclosures
under the Older Workers’ Benefit Protection Act (“OWBPA”), 29 U.S.C. § 626(f)(1)(H),
to “hide” the ages of workers who were laid off. However, the record shows that Marione
quickly discovered the OWBPA disclosure to be incorrect, and the employees within the
department easily learned who was included in the RIF. Because the mere existence of a
faulty OWBPA disclosure, by itself, does not evidence age discrimination, and there is no
evidence to support Marione’s suspicions, his claim cannot be maintained.
IV.
The record contains no evidence that MetLife’s actions were in any way
discriminatory or that its proffered reasons were a pretext for discrimination. Therefore,
we will affirm the order of the District Court.

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