Jottings By An Employer's Lawyer

Sunday, June 19, 2005

How 3 Judges View MSJ

Judge Aldisert of the 3rd Circuit likes summary judgment as witness his dissent in Fasold v. Justice I mentioned here earlier this month. In Kautz v. Met-Pro Corporation (3rd Cir. 6/17/05) [pdf] he conducts a master class on the difficulties a plaintiff has to meet the "heavy burden" to establish pretext. First he recites the standard that controls in the 3rd Circuit:

In order to avoid summary judgment, Fuentes requires a plaintiff to put forward “such 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.”

Although the plaintiff had a multitude of arguments as to why the reasons the employer gave for his termination were a pretext for age discrimination, he succeeded in getting over the Fuentes barrier only on one. Unfortunately for him, in the 3rd Circuit a plaintiff is required to show "each reason" the employer gave was pretextual. (Actually if a plaintiff can disprove several of the proferred reasons that might be enough, but one out of several is not.)

In conducting the review, Judge Aldisert laid down some explicit "as a matter of law" holdings, and others that although not officially designated as such might have that same effect. Good things to know when arguning for summary judgment in the 3rd Circuit, or elsewhere. Among those holdings (emphasis added by me):

-- While an employer can't use a standard to evaluate its employees that has no relationship to the performance of an employee, but "absent this type of violation of the Fuentes standard, we will not second guess the method an employer uses to evaluate its employees."

-- "a naked assertion that a method of evaluation is new would not, by itself, support a finding that it is implausible, inconsistent, incoherent or contradictory. "

-- Evidence that the method of evaluation an employer used was not the best method does not amount to evidence that the method was so implausible, inconsistent, incoherent or contradictory that it must be a pretext for something else.

-- Questioning the timing of [complaints found in his personnel file as only occurring in the last 8 months of his employment] cannot suffice to establish pretext. Kautz must dispute the factual basis of each negative document in his file offered by Met-Pro as a basis for his termination.

-- The attempt to use past positive performance reviews to show that more recent criticism was pretextual fails as a matter of law. See Ezold, 983 F.2d at 528 (“Pretext is not established by virtue of the fact that an employee has received some favorable comments in some categories or has, in the past, received some good evaluations.”).

-- Kautz does not specifically assert that Cauble [a distributor] was lying about Kautz’s performance, though he does say that based on the foregoing “a jury could easily disregard all of Mr. Cauble’s testimony as not worthy of belief.” ... Kautz asks us to assume that Cauble’s testimony is false because he is an interested party without coming forth with specific evidence contradicting the testimony." Something the Court was not willing to do.

-- Kautz points also to the testimony of David Kirkwood, another distributor who was satisfied with his performance. Quite obviously, the fact that one distributor is pleased does not in any way create a question of fact about the opinion of a different distributor related to specific instances of deficient performance. To create a question of fact, Kautz must assert that there is no factual basis for Cauble’s specific complaints and then present some evidence supporting this claim.

-- In order to show pretext, Kautz claims no memory of Board’s criticism at the meeting or the bid itself. Lack of memory is not a denial of the truth of the memo and therefore does not show pretext; a specific denial of the truth or relevance of the employer’s proffered reason is required.

-- Kautz does not deny that [criticisms were made that he was not as well prepared as other RSM's at a meeting]. He also fails to assert that he was well prepared for this meeting. Rather, he claims that he was not able to be as well prepared as the other RSMs because he, unlike them, did not have a computer sitting in front of him. An explanation of the reason he was less prepared than he should have been for the meeting does not suffice as a showing of pretext.

Of course, it wasn't quite as clear cut as just reading Judge Aldisert's opinion might make you think. Judge Sloviter disagreed, since in her view the company's method of selecting Kautz for lay-off, rather than using the traditional method of ranking, gross sales had used a method designed to put him and other older employees at a disadvantage:

Notably, the three top earners of 2001 had the three worst percentages under the formula adopted. Met-Pro’s formula confers the worst scores to the best salespersons and the best scores to the less successful salespersons.

In Fasold, the majority opinion overturning summary judgment to which Judge Aldisert dissented so strongly, was written by you guessed it -- Judge Sloviter. And even though both clearly voiced their views in each case, it was the unspoken judge in the middle whose view ultimately decided who won, as Judge Ambro was the deciding vote in both cases.

Maybe the difference in their views was the appointing President? If so hard to find a common theme -- Judge Aldisert (President Johnson); Judge Sloviter (President Carter) and Judge Ambro (President Clinton).

Judge Ambro was not on the panel in Kautz, Judge Fisher was. That explains the divergent results.
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