Stephen W. Robinson v. MATTHEWS INTERNATIONAL CORPORATION On Appeal from the United States District Court…

Honorable Paul S. Diamond, United States District Judge for the Eastern District*
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 09-1965
____________
STEPHEN W. ROBINSON,
Appellant
v.
MATTHEWS INTERNATIONAL CORPORATION
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cv-01504)
District Judge: Honorable Joy Flowers Conti
____________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 28, 2010
Before: FUENTES and FISHER, Circuit Judges, and DIAMOND, District Judge.*
(Filed: March 8, 2010)
____________
OPINION OF THE COURT
____________

-- 1 of 11 --

2
FISHER, Circuit Judge.
Steven W. Robinson (“Robinson”) appeals from an order of the District Court
granting a motion for summary judgment in favor of defendant, Matthews International
Corporation (“Matthews”), holding that Matthews did not violate Robinson’s rights under
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. For the
reasons stated herein, we will affirm the judgment of the District Court.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of the case. Therefore, we will set forth only those facts necessary to our
analysis.
The York Group, Inc. (“York Group”) hired Robinson as the Bronze Segment
Controller at its Kingwood, West Virginia plant on January 3, 2000, and he continued in
this capacity when the York Group was acquired by Matthews. Robinson was
subsequently promoted to the operations controller position for Matthews’s casket
division in Pittsburgh, PA, and was supervised by David Beck (“Beck”). At the
completion of Robinson’s first year as operations controller, Beck administered
Robinson’s performance evaluation for the fiscal year 2003. Robinson’s overall
performance was rated, under Matthews’s performance rating system, in the “competent
(meets standard)” range.

-- 2 of 11 --

3
In September 2003, Beck was promoted within Matthews, and Jonathan Maurer
(“Maurer”) took over as Robinson’s immediate supervisor. Maurer, however, left
Matthews after only six months; thereafter, Robinson reported to Joseph Bartolacci
(“Bartolacci”). In his 2004 fiscal year performance evaluation, Bartolacci rated
Robinson’s overall performance as “adequate (below standard)” and noted that Robinson
did not demonstrate the expected leadership levels on the business plan, the annual
business review, and during monthly forecast meetings.
For financial reasons, in early summer 2004, Matthews decided to consolidate the
responsibilities of the financial controller, the manager of financial analysis, and the
operations controller, which was Robinson’s position, into a single “division controller”
position and to liquidate the other positions. On November 5, 2004, Bartolacci met with
Robinson and informed him that his position was being eliminated, effective at the end of
the year, and that he was not being considered for the newly created division controller
position. At this meeting, Bartolacci extended an offer to Robinson for the wood plant
controller position at Matthews’s plant in York, Pennsylvania. The wood plant controller
position would have constituted a demotion for Robinson, whereby his responsibilities
would have been reduced and his annual pay cut. Robinson declined the offered position
and continued work in his current position until he was terminated by Matthews on
January 31, 2005. Robinson was fifty-one years of age at the time of his termination.

-- 3 of 11 --

4
Steven Nicola (“Nicola”), the Matthews official responsible for filling the division
controller position, believed, based in part on the opinions of other Matthews officials,
that Robinson did not possess sufficient leadership, initiative, or analytical skills
necessary for the new position. The division controller position was ultimately offered to,
and accepted by Jim Kenna (“Kenna”). Kenna was thirty-six years old at the time he was
hired and held a bachelor’s degree in accounting. Kenna’s qualifications included general
accounting and operations experience, as well as experience performing audits.
Robinson, on the other hand, had earned a Masters of Business Administration degree
with double specializations in finance and management. He had experience in the payroll
and accounting departments of other companies, as well as experience as a bronze
segment controller and casket division operations controller for Matthews.
Following his termination, Robinson filed a Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”), alleging that he was
discriminated against based on his age. Before the EEOC, Robinson contended that he
was not given the opportunity to apply for the division controller position, that the
position ultimately went to the younger Kenna, and that this constituted age
discrimination in violation of the ADEA. The EEOC subsequently issued Robinson a
right to sue letter.
On November 13, 2006, Robinson filed the instant lawsuit alleging age
discrimination under the ADEA, sex discrimination under Title VII, constructive

-- 4 of 11 --

5
discharge under both statutes, and several related common law claims. Matthews filed a
motion for summary judgment on all counts, and, on March 20, 2009, the District Court
granted the motion. Robinson filed a timely notice of appeal. Robinson’s age
discrimination claim under the ADEA is the only one before us in this appeal.
II.
The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a grant of summary
judgment is plenary. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 557 (3d Cir.
2008). In conducting our review, we must view the underlying facts and all reasonable
inferences in the light most favorable to the party opposing the motion. Fasold v. Justice,
409 F.3d 178, 180 (3d Cir. 2005). Summary judgment is only proper when there is no
genuine dispute as to material facts, and the moving party is entitled to judgment as a
matter of law. Id. at 183.
III.
Recognizing that it is often difficult for a plaintiff to prove illegal discrimination
through direct evidence, the Supreme Court in McDonnell Douglas v. Green, 411 U.S.
792 (1973), constructed a framework under which a plaintiff may show that an adverse
employment action was simply a pretext for discrimination. The McDonnell Douglas
framework establishes a system whereby burdens of proof are allocated in employment
discrimination suits. The plaintiff must carry the initial burden of establishing a prima

-- 5 of 11 --

6
facie case of unlawful discrimination. Id. at 802. The burden then shifts to the employer
to articulate a legitimate, nondiscriminatory reason for taking the challenged action. Id.
If the employer can articulate such a reason, then the burden shifts back to the plaintiff to
show that the defendant’s reason was a pretext for discrimination. Id. at 804. The
ultimate burden of persuasion that the employer intentionally discriminated against the
plaintiff “remains at all times with the plaintiff.” Texas Dept. of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981).
In order to establish a prima facie case of age discrimination for failure to promote,
the plaintiff must establish that: (1) he is age forty or older; (2) he applied for and is
qualified for the job; (3) despite his qualifications he was rejected; and (4) the employer
ultimately filled the position with someone sufficiently younger to permit an inference of
age discrimination. Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995). The
District Court held that Robinson established a prima facie case, and Matthews does not
contest that finding in this appeal. Therefore, for our purposes, Robinson has met the
burden of establishing a prima facie case under the ADEA.
The burden then shifts to Matthews to provide evidence that Robinson was
rejected, or Kenna was preferred, for the division controller position for reasons that are
legitimate and nondiscriminatory. Burdine, 450 U.S. at 254. This burden is deemed
satisfied if the employer introduces evidence that, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the challenged employment

-- 6 of 11 --

7
decision. The employer is not required to prove that this nondiscriminatory reason
actually motivated the action in order to shift the burden back to the plaintiff. Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Matthews maintains that Robinson was
performing below expectations in his current position and that he lacked the leadership
ability, initiative, and analytical skills necessary to perform as division controller. Taken
as true, these reasons would certainly be legitimate grounds not to promote Robinson.
We conclude that Matthews has met its burden, and thus the burden of showing pretext
shifts to Robinson.
The standard for determining pretext was set forth by this Court in Fuentes. In
order for a plaintiff to defeat summary judgment, the plaintiff must either (i) discredit the
proffered reasons, either circumstantially or directly, or (ii) adduce 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. A
successful showing of pretext must “allow the factfinder reasonably to infer that each of
the employer’s proffered nondiscriminatory reasons was either a post hoc fabrication or
otherwise did not actually motivate the employment action.” Id. A plaintiff may not
establish pretext by simply showing that the employer’s decision was wrong or mistaken
because the main issue is whether the employer acted in a discriminatory manner. Id. at
165.

-- 7 of 11 --

8
Robinson’s assertions center on the first prong of the Fuentes test: an attempt to
discredit Matthews’s claim that the true reason for not promoting Robinson was that his
performance did not warrant the promotion. Robinson makes five arguments to discredit
Matthews’s proffered reasons, and we will consider each of them in turn.
First, Robinson argues that his performance evaluations do not support Matthews’s
assertion that his performance was below expectations. He states that his performance
ratings in fiscal year 2003 of “competent (meets standard)” and in fiscal year 2004 of
“adequate (below standard)” are indicative of good performance. Robinson also cites the
individual categories in his performance evaluations where he scored well as evidence of
good performance. Ultimately, however, Robinson’s own view of his performance is
irrelevant; instead, what matters is the perception of the employer. Billet v. CIGNA
Corp., 940 F.2d 812, 825 (3d Cir. 1991) rev’d on other grounds. The comments from
Robinson’s supervisors, combined with the downward trajectory of his performance
evaluations, belie Robinson’s assertions. Matthews has clearly laid out that an
“adequate” review equates with “below standard” performance. Based on the
performance evaluation alone, Matthews’s decision not to promote Robinson because his
ratings demonstrated only “adequate” performance was a reasonable one, and we may not
second guess this business decision. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983
F.2d 509, 527 (3d Cir. 1992).

-- 8 of 11 --

9
Robinson’s second argument is that Matthews should have considered the difficult
circumstances under which he assumed the operations controller position when reviewing
his performance. Specifically, Robinson claims that his predecessor left the position
before he could be adequately trained for the new position. It follows logically that any
difficulties stemming from learning a new job would be ironed out in the first year, and
that evidence of these early difficulties would be shown by an improvement, not a
decline, in performance as those difficulties dissipate. However, Robinson’s scores on
his performance evaluations actually declined from fiscal year 2003, when he was rated
as “competent (meets standard),” to fiscal year 2004, when he was rated as “adequate
(below standard).” This decline in performance following his first year in the position
actually supports Matthews’s non-discriminatory reasons for terminating Robinson.
Robinson next argues that Matthews’s failure to inform him of any problems with
his performance is evidence of discriminatory pretext. While Robinson may not have
been contacted routinely regarding the level of his performance, his annual evaluations
indicated that he was not performing at an above average level and that his performance
was not improving. However, even if no notice had been given, lack of information
about performance problems does not constitute evidence of pretext. Hague v. Thompson
Distrib. Co., 436 F.3d 816, 827 (7th Cir. 2006).
The fourth argument Robinson advances is that pretext has been established by
certain inconsistencies in the testimony of those in charge of hiring the division

-- 9 of 11 --

10
controller. Specifically, Robinson notes that Beck stated that he had no part in the
division controller hiring process while Bartolacci and Nicola stated that Beck did have
some input in the process. Robinson makes no allegation, however, that the
inconsistencies in the testimony cited were evidence of discriminatory animus. In order
to carry the burden of showing pretext, a plaintiff’s evidence must allow a factfinder
“reasonably to 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.” Fuentes, 32 F.3d at 764. Inconsistencies over whether Beck had any part in the
hiring of the division controller cannot give rise to an inference that Matthews’s decision
not to promote Robinson was motivated by considerations other than his performance.
These inconsistencies are not evidence that could permit a factfinder to conclude that
Matthews’s stated reason was “unworthy of credence.” Id. at 765.
Robinson finally argues that he is more experienced than Kenna. Robinson does
indeed have more experience working in the field and a higher level of education than
Kenna, but this is not necessarily evidence of pretext. In attempting to discredit the
employer’s proffered reason, a 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. The decision to hire Kenna for the division controller position was
ultimately a business decision, and simply because Robinson thinks he is more qualified

-- 10 of 11 --

11
for the division controller job does not entitle him to the position nor show discriminatory
animus on the part of Matthews.
Since Robinson cannot point to evidence discrediting Matthews’s proffered
legitimate reason for failing to promoting him, he cannot satisfy the first prong of the
Fuentes analysis. Therefore, Robinson has failed to satisfy his burden of production
under the McDonnell Douglas framework, and this failure entitles Matthews to judgment
as a matter of law.
IV.
For all the foregoing reasons, we will affirm the District Court’s order for
summary judgment in favor of Matthews.

-- 11 of 11 --