James T. Killen v. MARKETING COMMUNICATION SYSTEMS, INC. On Appeal from the United States District…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-4405
JAMES T. KILLEN,
Appellant
v.
MARKETING COMMUNICATION SYSTEMS, INC.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 00-cv-03812
(Honorable John P. Fullam)
Argued September 18, 2002
Before: BECKER, Chief Judge, SCIRICA and McKEE, Circuit Judges
(Filed: January 31, 2003)
WILLIAM J. FOX, ESQUIRE (ARGUED)
1626 Pine Street
Philadelphia, Pennsylvania 19103
Attorney for Appellant

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1The District Court had original jurisdiction over this matter under 28 U.S.C. § 1331 and
supplemental jurisdiction over plaintiff’s state law claims under 28 U.S.C. § 1367. We
have appellate jurisdiction under 28 U.S.C. § 1291.
2
ANTHONY B. HALLER, ESQUIRE (ARGUED)
Pepper Hamilton LLP
3000 Two Logan Square
18th and Arch Streets
Philadelphia, Pennsylvania 19103
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Circuit Judge.
James T. Killen sued his former employer, Marketing Communication Systems, Inc.
(“MCS”), asserting claims under the federal Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act (“PHRA”),
Pa. Stat. Ann. tit. 43, § 951 et seq. The District Court granted summary judgment in favor
of MCS. We will affirm.1
I
MCS provides “database management, telemarketing and fulfillment services to
clients in the direct marketing industry.” During the time of Killen’s employment, MCS
operated, among its other units, a Leads Center and a Control Center. The Leads Center
processed information received from individuals who were responding to promotional

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materials distributed to the public. For example, the Leads Center processed information
contained on business reply cards sent in response to advertisements. The Leads Center
also fulfilled requests made by the individuals responding to the promotional materials.
The Control Center was a larger division within MCS. Similar to the Leads Center, the
Control Center processed information and fulfilled requests, but it also performed
telemarketing functions.
On July 16, 1990, Killen was employed by MCS as manager of the Leads Center.
Killen performed well in his position and received positive reviews as well as yearly salary
increases. MCS, however, suffered financial setbacks in 1998 and 1999. As a result, the
company believed it was necessary to restructure its operations and to terminate certain
employees. Killen was terminated on July 9, 1999. He was fifty-nine years old at the time.
According to MCS, it did not need a manager dedicated exclusively to the Leads
Center. Killen’s position was eliminated and other employees fulfilled the duties Killen
had performed. Richard Shriver, forty-nine years old at the time, was manager of the
Control Center. In addition to managing the Control Center, Shriver became responsible
for the overall supervision of the Leads Center. Heather Bradley, thirty years old at the
time, had been Killen’s assistant, and had been performing many of the same functions as
Killen. Upon Killen’s dismissal, Bradley continued to handle the day-to-day operations of
the Leads Center and was given some additional responsibilities.
After filing discrimination charges against MCS with the Equal Employment
Opportunity Commission and the Pennsylvania Human Relations Commission, Killen

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2For our purposes, the same analysis is used for Killen’s ADEA and PHRA claims. See,
e.g., Connors v. Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998).
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brought suit in federal court. Killen asserted that his termination and the subsequent
assumption of his duties by younger employees was the result of impermissible age
discrimination on the part of MCS. As noted, the District Court granted MCS’s motion for
summary judgment.
II
A plaintiff alleging age discrimination can present either direct evidence of
discrimination that meets the requirements of Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), or indirect evidence of discrimination that satisfies the three-step framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Fakete v. Aetna, Inc., 308
F.3d 335, 337-38 (3d Cir. 2002). Here we focus on the latter method as Killen offers only
indirect evidence in attempting to prove his discrimination claim.2
Under the McDonnell Douglas framework, the plaintiff first must establish a prima
facie case of discrimination. Keller v. ORIX Credit Alliance, Inc., 130 F.3d 1101, 1108
(3d Cir. 1997). When the plaintiff alleges unlawful termination based on age:
the prima facie case requires proof (i) that the plaintiff was a member of the
protected class, i.e., was 40 years of age or older (see 29 U.S.C. § 631(a)),
(ii) that the plaintiff was discharged, (iii) that the plaintiff was qualified for
the job, and (iv) that the plaintiff was replaced by a sufficiently younger
person to create an inference of age discrimination.
Id. If the plaintiff proffers evidence sufficient to establish a prima facie case, step two is
reached. “The burden of production (but not the burden of persuasion) shifts to the

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3The District Court found that Killen proved he was a qualified employee within the
protected age group and his discharge in favor of a younger employee, Shriver, gave rise to
an inference of age discrimination. See Killen v. Marketing Communication Sys., Inc.,
No. 00-3812, 2001 U.S. Dist. LEXIS 19087, at *2-3 (E.D. Pa. Nov. 14, 2001).
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defendant, who must then offer evidence that is sufficient, if believed, to support a finding
that it had a legitimate, nondiscriminatory reason for the discharge.” Id. If the defendant
fails to meet this burden, the plaintiff prevails. If the defendant satisfies its burden, the
third step is reached. In order to survive summary judgment, the plaintiff must submit
evidence “from which a factfinder 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.” Id.
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).
Here, the District Court found that Killen satisfied the first step of the McDonnell
Douglas framework—that is, Killen established a prima facie case of age discrimination.3
We assume arguendo that this is correct. The District Court also found that MCS
proffered a legitimate, nondiscriminatory reason for terminating Killen. Finally, the
District Court found that Killen did not rebut MCS’s reasoning. We agree with the District
Court’s assessment regarding the latter two steps of the McDonnell Douglas framework.
MCS claims Killen was terminated not because of age-based animus, but because of
business realities. In 1998 and 1999, the company suffered financial setbacks, including
the loss of certain major accounts. As a consequence, MCS decided to terminate some of
its employees and restructure its operations. Specifically, MCS decided to eliminate

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Killen’s position as manager of the Leads Center. Shriver, in addition to managing the
Control Center, would generally oversee the Leads Center and Bradley, Killen’s former
assistant who had significant knowledge of the unit, would be responsible for day-to-day
operations. MCS believed that Shriver, who had proven his ability as manager of the
Control Center, was the best candidate for overseeing both the Control Center and the
Leads Center. Moreover, Shriver had experience with telemarketing
operations–experience that Killen lacked and that MCS believed was key to fostering the
company’s growth. MCS also believed that, in comparison to the Control Center, the Leads
Center was less important to the company’s future and required less management. Thus,
MCS designated Shriver to oversee the Leads Center, while letting Bradley supervise the
daily operations.
Killen counters that his position as manager of the Leads Center was not really
eliminated by MCS and that the explanation that his position was consolidated was a pretext
for age-based discrimination. Killen claims that thirty year old Bradley became the
functional equivalent of the Leads Center manager, taking over virtually all of Killen’s
duties when he was terminated (except for a small number of managerial duties that Shriver
performed).
Killen bases his position on the fact that when asked, “Who has taken over the duties
of Mr. Killen since he has been terminated from his employment with MCS?” Bradley

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4In the same deposition, Bradley agreed that billing was the only duty that she performed
after Killen left that she had not performed before his termination. Thus, when taken
together, Bradley’s statements are consistent with MCS’s assertion that Bradley was not
promoted to Killen’s former position, but continued in her role, while assuming a few
additional responsibilities.
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responded, “I have.”4 Moreover, Shriver testified that he spent only “an average of five
percent, ten percent, maybe on a busy week” tending to the management of the Leads
Center. Thus, Killen maintains that Bradley essentially took over his position since she
performed the vast majority of the duties of the Leads Center manager and Shriver had very
little to do with the Leads Center. The crux of Killen’s argument is that an employer cannot
claim that it has legitimately consolidated two positions when one person takes over most
of the duties of the terminated employee. Killen contends that there is a genuine issue of
material fact, that should have been allowed to go to the jury, as to whether his position was
really consolidated or whether he was functionally replaced by Bradley.
However, we conclude that this is insufficient to create a genuine issue of material
fact. MCS agrees that Bradley became responsible for the day-to-day operations of the
Leads Center with Shriver generally overseeing the unit. Although Shriver may not have
spent a lot of time tending to the Leads Center, he was the boss, and as such, he was
responsible for the Leads Center, a crucial fact that differentiated his job (and Killen’s)
from Bradley’s. Moreover, in taking over most of Killen’s duties, Bradley was performing
many of the same tasks she had in the past, not assuming a new position in the company.

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Thus, we conclude that Killen has not offered sufficient evidence of pretext to raise a
genuine issue of material fact.
III
For the reasons discussed, we will affirm the grant of summary judgment for the
defendant.

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TO THE CLERK:
Please file the foregoing opinion.
/s/
/s/ Anthony J. Scirica
Circuit Judge

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