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., 426 F.3d 204, 209 (3d Cir. 2005). Summary ju d g m e n t should be awarded when "the pleadings, depositions, answers to interrogatories, a n d admissions on file, together with the affidavits, if any, show that there is no genuine is s u e as to any material fact and that the moving party is entitled to a judgment as a matter o f law." Fed. R. Civ. P. 56(c). We review all evidence in the light most favorable to, and d ra w all reasonable inferences in favor of, the non-moving party (i.e., Leyva). MBIA, 4 2 6 F.3d at 209. The existence of a "mere scintilla of evidence in support of [a] n o n m o v a n t's position will be insufficient" to withstand a summary judgment motion.

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 0 F.3d 1061, 1084 (3d Cir. 1996) (en banc). If CSC meets this burden, [ L e yv a may] defeat summary judgment . . . [by] point[ing] to some evidence, d ire c t or circumstantial, from which a factfinder could reasonably either (1) d is b e lie v e the employer's articulated legitimate reasons; or (2) believe that an in v id io u s discriminatory reason was more likely than not a motivating or d e te rm in a tiv e cause of the employer's action F u en tes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

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.