Keller v. Orix Credit Alliance

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

11-24-1997

Keller v. Orix Credit Alliance

Precedential or Non-Precedential:

Docket

95-5289

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Filed November 24, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95-5289

FREDERICK F. KELLER,

Appellant

v.

ORIX CREDIT ALLIANCE, INC.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 93-03466

Originally Argued: March 6, 1996

Before: MANSMANN, ALITO, and LEWIS, Circuit Judges

Reargued In Banc: April 16, 1997

Before: SLOVITER, Chief Judge, and

BECKER, STAPLETON, MANSMANN, GREENBERG,

SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and

MCKEE, Circuit Judges

(Opinion Filed: November 24, 1997)

Edwin M. Baum, Esq. (Argued)

James Robert Pigott, Jr., Esq.

SOLOMON, ZAUDERER,

ELLENHORN, FRISCHER & SHARP

45 Rockefeller Plaza

New York, New York 10111

Steven L. Lapidus

ROBINSON, LAPIDUS & LIVELI

Two Penn Plaza East

Newark, New Jersey 07105

Attorneys for Appellee

Debra L. Raskin (Argued)

Anne L. Clark

VLADECK, WALDMAN, ELIAS &

ENGELHARD, P.C.

1501 Broadway

New York, New York 10036

Attorneys for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

Frederick F. Keller sued his former employer, ORIX Credit

Alliance, Inc., in federal district court, asserting claims

under the federal Age Discrimination in Employment Act

("ADEA"), 29 U.S.C. S 621 et seq., and the New Jersey Law

Against Discrimination ("NJLAD"), N.J.S.A. S 10:5-1 et seq.

Keller, who had served as executive vice president and a

member of the board of directors, claimed that ORIX Credit

Alliance had discriminated against him based on his age

when it failed to promote him to the position of chief

operating officer and later terminated his employment. The

district court granted summary judgment for ORIX Credit

Alliance. A panel of this court issued a decision reversing

the district court, but ORIX Credit Alliance's petition for

rehearing en banc was granted, and we now affirm.

2

I.

A.

Background of the Parties and the Dispute. ORIX Credit

Alliance is a subsidiary of companies that are in turn

subsidiaries of ORIX Corporation, a Japanese company.

App. 385-86, 616. ORIX Credit Alliance is a commercial

finance company that is engaged primarily in the business

of financing the acquisition or leasing of equipment. Id. at

310. ORIX Credit Alliance generally must borrow the funds

needed to support the financing it provides for its

customers. Id. In simple terms, the company makes a profit

by borrowing funds at one rate and then lending to its

customers a higher rate. Id. at 80.

Frederick Keller was born on January 31, 1942. App.

610. After college, he was hired by Franklin National Bank

and eventually handled its relationship with Credit Alliance

Corporation, ORIX Credit Alliance's predecessor. Id. at 611.

In 1976, Credit Alliance Corporation hired Keller as a vice

president, and in that capacity he shared the primary

responsibility for raising funds for the company. Id. at 612,

1121. Keller obtained funding from banks, helped to

supervise "the commercial paper program," and worked on

"other sources of funding." Id. at 1120-21. The then-

chairman of the company has described Keller's work as

"excellent," and after several years, Keller was promoted to

senior vice president of finance. Id. at 614.

In December 1984, First Interstate Bancorp acquired

Credit Alliance Corporation's parent company, and Credit

Alliance Corporation continued to do business as First

Interstate Credit Alliance Corp. App. 613. After this

acquisition, First Interstate Bancorp provided most of the

funding used by First Interstate Credit Alliance Corp. for its

lending activities, and therefore it was no longer necessary

for Keller to raise money. Id. at 614. Keller acquired the

titles of executive vice president, chief financial officer, and

chief credit officer, and he served as a member of the

company's board of directors. Id. 70-71, 1121. In 1988, the

chairman of the board of First Interstate Credit Alliance

Corp. told Keller that he had been considered for the

3

presidency of the company but that Daniel Ryan had been

selected. Id. at 1121.

In September 1989, ORIX subsidiaries acquired First

Interstate Credit Alliance Corp., which continued to do

business under the name of ORIX Credit Alliance. App. at

616. Prior to the acquisition, Keller and six other key

executives were requested to sign employment contracts

with the new company, and Keller signed a three-year

contract for employment at a substantial annual salary. Id.

at 616, 644.

After this acquisition, Keller was given the responsibility

for raising funding for ORIX Credit Alliance. App. 78. At

that time, according to Keller's affidavit, "Credit Alliance

had approximately 1.6 billion in debt outstanding to First

Interstate Bancorp, 1.3 billion of which was to continue to

be provided on a temporary basis. Because it was the goal

of Credit Alliance to obtain funding independent of First

Interstate Bancorp and of ORIX Corp. or ORIX USA[an

ORIX subsidiary] [Keller] determined that it would ultimately

be necessary for Credit Alliance to have available credit

facilities totaling approximately 1.5 billion dollars." Id. at

616-17 (emphasis added). Keller stated that he

communicated this goal to the board of directors at "[m]ore

than one meeting." Id. at 15.

Keller's Failure to Meet the $1.5 Billion Goal and His

Explanations. This goal, however, was never met or even

approached. Keller himself stated in his deposition that

"Credit Alliance never achieved the goal for funding that

[he] had communicated to the board of directors." App. 16.

Indeed, he acknowledged that, at all times from September

1989 (the time of the ORIX acquisition) to April 1, 1993 (the

time of his termination), funding provided by First

Interstate Bancorp and ORIX affiliates constituted more

than 50% of ORIX Credit Alliance's funding. Id. at 81-82. In

December 1991, $785 million in credit facilities was

available to ORIX Credit Alliance. App. 13. By September

1992 -- approximately when the initial decision to

terminate Keller was made -- the total available bank lines

had dropped to $695 million. Id. at 48. After September

1992, Keller did not secure any increase in bank lines. Id.

at 24-25.

4

While Keller does not dispute that he failed to meet or

approach the financing goal, he claims that this was due to

factors beyond his control. See Appellant's Br. at 8-11, 35-

36; App. 617-32 (Keller Affidavit). For example, Keller

explained that ORIX Credit Alliance was unable to launch

a "commercial paper program," as he had projected,

because "there were many obstacles to obtaining a

sufficiently high credit rating to permit Credit Alliance to

issue and sell commercial paper on favorable terms." App.

618. Among these, he stated, "were the absence of any

guarantee by ORIX Corp., and the growing weakness of the

Japanese economy which would affect Credit Alliance's

parent." Id. Keller summarized these problems in memos

that he sent to Ryan. Id.

Keller likewise provides a plethora of reasons for his

failure to secure bank lines of credit. He cites the

company's credit rating, "the perceived `downturn in the

equipment financing industry' . . . [,] Credit Alliance's

statistics for `past dues' or untimely payments from its

customers and other aspects of its portfolio . . .[,] bank

`environment[s] . . . not conducive to risk of any sort' . . .[,]

and bank limitations on lending to financing companies . . .

or to companies outside a particular geographical area,"

"the negative impact of the recession in the United States

and Japan during the late 1980's and early 1990's and the

resulting reluctance of American banks to `book loans,' "

and "banks' reluctance to lend to a company having a

Japanese parent, given the negative economic situation in

Japan at the time." App. 620-21.

During this same period, when Keller was allegedly

unable to raise funds by means of a commercial paper

program or bank lines of credit, Keller repeatedly expressed

opposition to raising funds by "asset-backed securitization,"

a process that involves the sale of accounts receivable or

loan paper to a specially created trust that in turn sells

interests or securities in that trust. See App. 90, 626. Ryan

mentioned the possibility of raising funds in this way to

Keller before or shortly after the ORIX acquisition (id. at

90), but Keller repeatedly advised Ryan that in his opinion

asset-backed securitization was "not for us." Id. at 28-29,

627.

5

Finally, Keller states that he explored the possibility of

private placements of ORIX Credit Alliance debt with

insurance companies and other institutional investors. App.

628. But Keller states that it was not until July 1992 (one

or two months prior to the decision to terminate him) that

he proposed to Ryan that ORIX Credit Alliance Corp. take

"[t]he first step" in this direction, i.e., the selection of a

bank to act as the company's agent. Id. at 627-28.

ORIX Credit Alliance's Assessment of Keller's

Performance. ORIX Credit Alliance points to evidence that

paints a picture of growing dissatisfaction within the

company about Keller's failure to reach or approach the

funding goal. Keller and Ryan both testified that Ryan

repeatedly questioned Keller about the funding situation.

App. 40, 44, 98-99. Ryan also stated that he asked Keller

why ORIX Credit Alliance's competitors were able to obtain

forms of financing that his company either did not pursue

or allegedly could not obtain. Id. at 90, 92, 98. See also id.

at 627 (Keller Affidavit). One of ORIX Credit Alliance's

outside directors, David E. Mundell, who had served for

nearly 20 years as the president of another leading

commercial lending company, stated that at most, if not all,

of the board meetings from March 1991 until April 1993 he

questioned Keller and "expressed dissatisfaction with the

lack of progress in raising funding." Id. at 388. At one

meeting, Mundell added, he "expressed the view that, based

on [his] knowledge of the equipment finance industry and

[his] experience in managing the liability side of finance

companies' balance sheets, [he] believed that Credit

Alliance was not raising funds in the amounts and on the

terms that it should have been able to in light of the

relevant factors, such as its financial statements, the

sufficiency of its equity, and its status in the industry." Id.

Mundell continued that "Keller responded by offering a list

of excuses for his inability to raise more funds," but that he

"did not . . . make any concrete proposals for correcting the

problems that, he claimed, were preventing him from

producing the desired results." Id. at 389.

Another outside director, Yoshiaki Ishida, who was also

the president and chief executive officer of an ORIX parent

corporation, stated that at several board meetings he

6

"questioned Mr. Keller about his presentation." App. 1164.

Ishida added that he "was not satisfied with the results that

Mr. Keller reported because the level of funds raised for

Credit Alliance was much too low and the goal of

independence in funding was not being achieved." Id. Ishida

added that he told Ryan at private meetings that "the ORIX

parent companies were not happy with the lack of progress

in raising funds for Credit Alliance, and with Credit

Alliance's continued reliance on another ORIX company

(ORIX Ireland) for a large portion of its funding." Id. Ishida

also stated that he "told Mr. Ryan, on several occasions,

that [he] felt that Mr. Keller's work in raising funds was not

satisfactory." Id. at 1165.

In August or September of 1991, still another outside

director, Sachio Hata, a senior officer of the parent

Japanese corporation, suggested to Ryan that "perhaps [he]

was remiss in giving Mr. Keller too much to do and that

that could have been the reason why [the company's]

financing situation was making such little progress." App.

103. Shortly after Hata made this remark, Ryan relieved

Keller of his responsibilities as chief credit officer, primarily

so that he "could focus on the financing function." Id.

Keller attempts to counter this evidence by pointing to

the absence of proof that Ryan ever expressly "criticized"

his performance or disputed his explanations for his

inability to obtain various types of funding. Keller points to

Ryan's inability during his deposition to recall more than

two discussions at board meetings regarding Keller's

performance. App. 484-90, 492-93. In addition, Keller

points out that, in describing those discussions, Ryan did

not mention that either involved a direct criticism of Keller.

See Appellant's Br. at 12. Keller also notes that one

member of the board of directors, Neil Umhafer, stated that

during the period from 1988 to March 1992, "[n]o one

challenged or disagreed with Keller's presentations at

[board] meetings or suggested in any way that the

difficulties he was encountering were in any way due to his

performance rather than factors beyond his control."1 App.

1126.

_________________________________________________________________

1. ORIX Credit Alliance asserts that Umhafer is now Keller's business

partner. Appellee's Br. at 10 n.7; App. 1128. Obviously, however, the

question of Umhafer's credibility is not a matter to be considered at the

summary judgment stage.

7

Selection of the New Chief Operating Officer . In about

December 1991 -- in the midst of the time when Keller was

experiencing difficulty in obtaining funding -- Ryan

announced that he planned to retire in approximately two

and one-half years from his positions as chairman of the

board and chief operating officer of ORIX Credit Alliance.

App. 84. Ryan stated that he:

felt the job required someone that had a deep

understanding and background of the company's

primary business, someone who had held a line

position with the company, preferably someone who

had personally performed as many of the tasks that are

required to operate the company's business as

possible.

Id. at 101. He said that he therefore considered only the

two most senior officers from the operational side of the

company, division managers Philip Cooper, age 43, and

Mark Lasher, age 50. Id. at 101, 268. Keller, then 50 years

of age, was not considered even though he had been

considered for the position of president in 1988 when Ryan

was chosen. Id. at 101. Keller had never held a line position

and had never worked in or managed any of the company's

branch offices or divisions. Id. at 65, 53.

Cooper was chosen as the new chief operating officer.

App. 101. Cooper had decades of experience in line

positions managing the company's operations and had been

with the company longer than Keller. Id. at 53, 101, 315. In

May 1992, Keller, as a member of the board of directors,

voted to ratify Cooper's promotion. Id. at 314-15, 345.

The April 13, 1992 Conversation. Keller relies most

heavily on a conversation he had with Ryan on April 13,

1992. Keller described this conversation as follows at his

deposition:

[Ryan] assured me that he felt comfortable that Orix

would be there for us as far as being able to loan us

money. But then [he] made a comment that . . . "We

really can't complain if we're not out developing

relationships."

8

He said to me that he didn't see me traveling around

the country visiting with banks. He said I was spending

a lot of time in New York City.

* * *

And then he said . . . "If you are getting too old for the

job, maybe you should go hire one or two young

bankers."

App. 27 (emphasis added).

Keller said that, because of Ryan's reference to Keller's

age, Keller prepared a handwritten summary of the meeting

within an hour or two after it ended. App. 25. These

handwritten notes state in pertinent part:

DNR then suggested that we cannot complain about

not being able to fund our needs if we have not made

a good effort to develop lines etc. -- he said I don't see

you traveling across . . . country developing

relationships I see you spending a lot of time in NYC.

He suggested I hire one or two young bankers. Also

discussed possibility of securitization if necessary.

Id. at 168-69. The handwritten summary contains no

reference to Ryan's alleged words "If you are getting too

old," but Keller explained at the deposition:

The reason I made those notes in the first place was

because of that statement, I didn't need these notes to

remind me of what he said.

Id. at 26.

The Decision to Discharge Keller. By August or September

1992, Ryan had decided that Keller should be discharged.

App. 91, 1156. After Ryan made his initial decision, he

discussed it with at least four individuals who were

directors or senior officers of the company, and all

expressed agreement. Id. at 1156-57. Those informed

included Mundell, Ishida, Cooper, and Jacob Mehl, an

executive vice president and the general counsel of the

company. Id.

Ryan and Cooper then drew up a list of criteria to be

used in identifying a replacement. App. 316. Among their

9

primary criteria were "experience in implementing asset-

backed securitization programs and other creative forms of

[fundraising]," "strong skills in working with rating agencies

and bankers, particularly Japanese bankers," and a

"results driven" character. Id. at 316. According to Cooper,

"[t]hese were among the areas in which we felt that Mr.

Keller's skills were inadequate for his job at Credit

Alliance." Id.

Cooper communicated these criteria to an executive

search firm, which subsequently proposed several

candidates. App. 316. From among these, Ryan selected

Joseph McDevitt, who was born on December 12, 1946,

and is thus four years, ten months, and 19 days younger

than Keller. Id. at 317, 269, 610.

Keller's Final Months. In September 1992 (i.e., at roughly

the time when Ryan made his initial decision to terminate

Keller), Ryan began to explore on his own the possibility of

obtaining funding by means of asset-based securitization.

App. 91. Shortly thereafter, Goldman Sachs & Co. was

engaged by Cooper and Ryan for a securitization program,

and within two years the company had closed two asset-

backed securitization deals and raised nearly $500 million.

Id. at 389.

Keller was not informed of Ryan's initial decision to

discharge him, App. 590-92, and thus in late 1992 or early

1993 Keller presented to Cooper a one-page document

entitled "TIMETABLE FOR DIVERSIFICATION OF FUNDING

SOURCES." This plan listed such items as the following:

2/8-5/1/93 Meet bankers and gauge level of interest

in providing credit facilities.

2/9/93 Visit S&P; discuss 9-month results;

determine feasibility of "A-2" rating

before year-end numbers are available. If

feasible, set up rating meeting as soon

as possible. If not feasible, see below.

3/15/93 Decide if public securitization is a viable

funding source. If so, move to market (90

days).

10

App. 1107. In response to questioning by Keller's attorney,

Ryan acknowledged that most, if not all, of these steps were

eventually taken, id. at 542-45, but Keller has not pointed

to any evidence that any of the steps proposed were novel

or that he did much if anything to accomplish any of the

objectives.2

Keller was formally discharged by unanimous vote of the

executive committee of the board of directors on April 1,

1993, effective on that date. App. 1159, 1162. Ryan went to

Keller's office to inform him of the decision. Id. at 591.

Keller states that the following occurred:

I asked Dan if he was asking for my resignation

because of my age and reminded him of the

conversation that we had in April of `92 when he was

-- when he asked me if I was getting too old for the job

and suggested that I, if I were, that I hire one or two

young bankers to travel around the country. He gave

me -- there was no response to that, to my comments.

Id. at 593.

Keller subsequently asked to "get together [with Ryan] to

discuss [his] situation" (App. 595), and the two men met for

lunch at a Manhattan restaurant on approximately April 9.

Id. at 595-96. During the lunch, according to Keller, Ryan

stated that Keller's suggestion of a "$1 million plus"

severance package was out of the question, and Ryan

added:

"Look, you do what you have to do, you know. I have

discussed this with Jerry Mehl, and he doesn't see that

we will have a problem."

And then he said, "But, you know, Jerry is a lawyer

and lawyers aren't always right."

Id. at 597.

McDevitt's Performance. On April 5, 1993, McDevitt

_________________________________________________________________

2. As previously noted, Keller does point to evidence that in July 1992 he

took the "first step" to implement a program of private placement, i.e.,

he

identified the bank that he wanted to serve as the company's agent. App.

628-29.

11

replaced Keller, and within a year he raised well over $1.5

billion in new credit facilities, including almost $2 million

in bank lines, $250 million through a first offering of asset-

backed securities, $275 million through a private

placement of notes, $1 billion in syndicated credit facilities,

and $300 million through the sale of commercial paper.

App. 311-14.

B.

In August 1993, Keller commenced this action in federal

district court, claiming that ORIX Credit Alliance denied

him promotion to the position of chief operating officer and

ultimately terminated him because of his age, in violation of

the ADEA and the NJLAD. ORIX Credit Alliance moved for

summary judgment, and the district court granted that

motion.

With respect to Keller's discharge claims, the district

court first held that Keller had failed to make out a prima

facie case under the scheme of proof set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically,

the court held that Keller had not identified evidence

showing that he was qualified for the position or that he

was " `replaced by someone significantly younger to permit

an inference of age discrimination.' " Dist. Ct. Op. at 8

(quoting Gray v. York Newspapers, Inc., 957 F.2d 1070,

1088 (3d Cir. 1992)). The court then concluded that, even

if Keller had established a prima facie case, ORIX Credit

Alliance had proffered a legitimate business reason for

Keller's dismissal, namely, "Keller's failure to make

adequate progress toward the $1.5 billion independent

financing goal," and that Keller had not pointed to evidence

that a reasonable jury could view as establishing pretext or

as proving that his discharge was due to age

discrimination. Id. at 10-11.

With respect to Keller's denial-of-promotion claim, the

court reasoned that the same evidence of Keller's failure to

meet or approach the financing goal was sufficient to

warrant summary judgment on that claim as well. Id. at 11.

Keller then took this appeal.

12

II.

We turn first to Keller's discharge claim. Keller contends

that this claim should have survived summary judgment

under either McDonnell Douglas or Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989).

A. McDonnell Douglas

In McDonnell Douglas, the Supreme Court created a

special scheme for structuring the presentation of evidence

in discriminatory treatment cases under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. S 2000e-1 et seq. Our

court has applied a slightly modified version of this scheme

in ADEA cases. See, e.g., Waldron v. SL Industries Inc., 56

F.3d 491, 494-95 (3d Cir. 1995); Sempier v. Johnson &

Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 115 S.Ct.

2611 (1995); Torre v. Casio, Inc., 42 F.3d 825, 829-30 (3d

Cir. 1994); Healy v. New York Life Ins. Co., 860 F.2d 1209,

1214 (3d Cir. 1988).3 Cf. O'Connor v. Consolidated Coin

Caterers Corp., 116 S.Ct. 1307, 1310 (1996) (assuming

arguendo that McDonnell Douglas applies under ADEA).

The McDonnell Douglas scheme has three steps. First, the

plaintiff must produce evidence that is sufficient to

convince a reasonable factfinder to find all of the elements

of a prima facie case. St. Mary's Honor Center v. Hicks, 509

U.S. 502, 506 (1993). When the plaintiff alleges unlawful

discharge based on age, the prima facie case requires proof

that (i) the plaintiff was a member of the protected class,

i.e., was 40 years of age or older (see 29 U.S.C. S631(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. Sempier, 45 F.3d at 728.

If the plaintiff offers sufficient proof of these elements,

step two is reached. The burden of production (but not the

burden of persuasion) shifts to the defendant, who must

_________________________________________________________________

3. Although Keller's complaint grounded his discharge claim on both the

federal ADEA and the NJLAD (see App. 4), Keller's brief relies solely on

the ADEA with respect to the discharge issue. See Appellant's Br. at 22-

39. We therefore confine this portion of our opinion to the ADEA.

13

then offer evidence that is sufficient, if believed, to support

a finding that it had a legitimate, nondiscriminatory reason

for the discharge. Hicks, 509 U.S. at 506-07. If the

defendant cannot satisfy this burden, judgment must be

entered for the plaintiff. Id. at 509. On the other hand, if

the defendant does satisfy this burden, step three is

reached. The plaintiff may then survive summary judgment

or judgment as a matter of law by submitting 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.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Accord

Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d

1061, 1067 (3d Cir. 1996) (en banc), cert. denied, 117 S.Ct.

2532 (1997).

In this appeal, we find it unnecessary to consider steps

one and two of the McDonnell Douglas scheme. Step two is

not contested, and although the parties dispute whether

Keller met step one, we will assume for the sake of

argument that he did, because we agree with the district

court that Keller did not satisfy step three under either the

first or second prong of the Fuentes test.

1. Prong One. As noted, a plaintiff may satisfy this

prong by offering evidence "from which a factfinder could

reasonably . . . disbelieve the employer's articulated

legitimate reasons." Fuentes, 32 F.3d at 764. But as we

have explained:

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. Rather, the non-

moving plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate

reasons for its actions that a reasonable factfinder

could rationally find them unworthy of credence.

14

Id. at 765. As another court of appeals has put it, "federal

courts are not arbitral boards ruling on the strength of

`cause' for discharge. The question is not whether the

employer made the best, or even a sound, business

decision; it is whether the real reason is [discrimination]."

Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.

1996).

The defendant in this case provided evidence that it had

a particularly powerful reason for discharging Keller, i.e.,

his failure to meet or even approach the goal of raising $1.5

billion in financing. As previously noted, ORIX Credit

Alliance makes a profit by borrowing money and then

lending it at a higher rate. Consequently, borrowed money

is the company's life blood, and it thus seems clear (and we

do not understand Keller to disagree) that the company

would have had a strong reason for discharging a key

executive who unjustifiably failed to meet a reasonable

objective relating to the raising of funds. Moreover, Keller

cannot argue that the objective of raising $1.5 billion was

unreasonable when it was originally set: he himself set that

goal, and he assured the board of directors that he could

meet it.

Instead, Keller makes two chief arguments: first, that the

evidence in the summary judgment record shows that his

inability to meet or approach the $1.5 billion objective was

due to factors beyond his control and, second, that

evidence in the summary judgment record shows that Ryan

knew that this was so. We will discuss each of these

arguments in turn.

Evidence that Keller's failure to reach or approach the

$1.5 million goal was due to factors beyond his control. In

considering this argument, it is critical to keep in mind that

the question under the first prong of the Fuentes test is not

whether "the employer's decision was wrong or mistaken."

Fuentes, 32 F.3d at 765. Accordingly, Keller cannot survive

summary judgment under this prong simply by pointing to

evidence that could convince a reasonable factfinder that he

did as well as he could under the circumstances. Rather,

he "must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

15

reasonable factfinder could rationally find them`unworthy

of credence.' " Fuentes, 32 F.3d at 765. In simpler terms, he

must show, not merely that the employer's proffered reason

was wrong, but that it was so plainly wrong that it cannot

have been the employer's real reason.

When this point is kept in mind, it is apparent that Keller

failed to satisfy prong one of Fuentes. Whether Keller could

have met or come close to the $1.5 billion goal under the

business conditions that prevailed from 1989 to 1992 is a

complicated question that would be difficult to resolve

without expert testimony of a sort that is lacking in the

summary judgment record of this case. But the relevant

question is not whether Keller could have done better;

instead, the relevant question is whether the evidence

shows that it was so clear that Keller could not have done

better that ORIX Credit Alliance could not have believed

otherwise. The answer to this question is plainly negative.

The evidence relating to asset-backed securitization

illustrates the weakness of Keller's position. It is

undisputed that Ryan had an early interest in this method

of raising funds. Ryan discussed asset-backed

securitization with Keller before or shortly after the ORIX

acquisition, and it is also undisputed that Keller rejected

this idea. Ryan testified without contradiction that on many

subsequent occasions he raised the possibility of asset-

backed securitization with Keller. Ryan said that every time

he read an article in the Wall Street Journal about a

competitor's utilization of this technique, he mentioned the

subject to Keller, App. 90, and it is undisputed that Keller's

consistent response was that asset-backed securitization

should not be pursued by ORIX Credit Alliance, in part

because of the nature of its business. Id. at 28. Indeed,

Keller's own affidavit reiterates this position. Id. at 626-28.

Finally, in September 1992, Ryan decided to explore the

matter on his own without Keller's knowledge or

participation. Ryan met with leading investment banking

firms, engaged the services of one such firm, and within

two years the company raised nearly $500 million through

two offerings of asset-backed securities. In the face of this

evidence, a reasonable factfinder could not find that ORIX

Credit Alliance's dissatisfaction with Keller's failure to

16

pursue asset-backed securitization was so clearly wrong

that it cannot have been sincere.

Keller's evidence relating to bank lines of credit likewise

falls short of what would be necessary to show that ORIX

Credit Alliance's dissatisfaction with his performance was

so clearly unfounded that it cannot have been sincere.

Keller's brief states:

[B]anks told Keller that they were not interested in

companies outside their region; that their "credit

culture [had] bec[o]me very conservative;" that they

were troubled by the Japanese economy and the level

of delinquent accounts at Credit Alliance, and sought

business only with highly rated companies; that they

perceived a "downturn in the equipment financing

industry . . . which they expect will become even

worse."

Appellant's Br. at 10 (footnotes omitted).

This recital is based on four file memos written by Keller

during a period of more than three years. See Appellant's

Br. at 10 & nn.7-10. The first memo relates that an officer

of a regional bank with offices in Florida and Georgia told

Keller that his bank "only does business with local

companies or national companies with local (Florida/

Georgia) operations." App. 394. The second memo did not

report that the bank in question had refused to extend

credit; instead, it concluded by saying: "We decided to meet

again after [the bank officer] has received and reviewed our

1992 financial information." Id. at 401. The third memo,

dated several months after the decision to terminate Keller

was made, does recount that an officer at a major bank

"repeated his many stories as to why it [was] difficult for

him to get a credit facility approved for our company." Id.

at 402. The final memo stated that an officer at a major

bank told Keller (in 1990) that "the Bank would prefer to

delay providing . . . a line of credit." Id. at 666. Taken

together, these file memos and the additional memos cited

in Keller's affidavit (see id. at 620-21) constitute evidence

from which a reasonable factfinder could conclude that

Keller experienced difficulties in securing bank lines, but

they could not persuade a reasonable factfinder that it was

17

so plainly impossible for Keller to secure additional lines of

credit from other banks during the 1989-1992 period that

ORIX Credit Alliance's dissatisfaction with his performance

must not have been real.

We will not discuss the evidence relating to Keller's

failure to obtain more funding by other means. However,

after examining all of the evidence identified in Keller's brief

for the purpose of showing that his failure to meet or

approach the $1.5 billion financing goal was due to factors

beyond his control, we are convinced that Keller has not

shown that it was so plain that he could not have done

substantially better under the circumstances that ORIX

Credit Alliance could not have truly believed otherwise.

Evidence that Ryan knew Keller could not have done

better. Keller also argues in his brief that the summary

judgment record contains evidence that Ryan knew that

Keller could not have done appreciably better under the

business circumstances that prevailed from 1989 through

1992. See Appellant's Br. at 8-9. This argument, however,

is simply not supported by the record.

Keller's brief states that "Ryan repeatedly acknowledged"

that "Keller's inability to obtain more credit on favorable

terms was due to circumstances beyond his control."

Appellant's Br. at 35-36. But our review of the record

citations provided in Keller's brief has not disclosed a single

such acknowledgment. Instead, most of the record citations

are based on passages from Ryan's deposition during which

the following occurred. Keller's attorney showed Ryan

documents that had been written by Keller and that

memorialized statements that had allegedly been made by

third parties, such as officers of banks or rating agencies,

and that explained why these third parties were unwilling

to take various actions that would have been favorable to

ORIX Credit Alliance. Keller's attorney then asked Ryan

whether he had any basis for disputing the accuracy of the

documents, and Ryan (who generally had no recollection of

previously seeing the documents) said that he had no basis

for disputing their accuracy. See Appellant's Br. at 10 &

nn.7-10 (citing App. 554-55, 558-59, 561-6, 563-646).

These exchanges merely show that Ryan did not dispute

the accuracy of particular documents that recounted a

18

limited number of specific statements allegedly made over

the course of several years by individuals associated with

particular banks and rating agencies. A factfinder could not

reasonably draw from these exchanges the general

conclusion that Ryan "repeatedly acknowledged" that

"Keller's inability to obtain credit on favorable terms was

due to circumstances beyond his control." Appellant's Br.

at 35-36.

Keller also relies on the assertion that his performance

was never "criticized" prior to the April 13 meeting with

Ryan, and he argues that this absence of criticism shows

that ORIX Credit Alliance was not sincerely disturbed by

his failure to approach the $1.5 billion goal. Appellant's Br.

at 29, 36. The summary judgment record contains evidence

that Keller was criticized (director Mundell's comments are

perhaps the clearest example), but Keller claims that he

was never "criticized," except at the April 13, 1992 meeting,

and in the present procedural posture of the case, we

accept Keller's position.

Keller does not dispute, however, that he was repeatedly

"questioned" by Ryan and others about this matter, and

therefore the question is to what extent a reasonable

factfinder could infer from the absence of criticism (as

distinct from questioning) that ORIX Credit Alliance was

not really troubled by Keller's failure to approach the $1.5

billion goal. We conclude that a reasonable factfinder could

draw only a relatively weak inference. Employers who are

dissatisfied with the performance of their employees

sometimes voice express criticism to those employees, but

employers do not always do so. See Healy, 860 F.2d at

1216 ("The company is under no obligation to warn plaintiff

of complaints regarding his performance and, if anything,

the effect of such evidence is equivocal, perhaps indicating

that plaintiff was receiving the benefit of the doubt.")

(citation omitted). Evidence that a plaintiff was not

criticized may take on significance if the plaintiff can show

that other comparable employees regularly received express

evaluations of their work, but Keller does not point to any

such evidence. Moreover, in light of the patent importance

of the $1.5 billion goal, and in light of the steady

"questioning" of Keller about this matter, the absence of

19

explicit criticism cannot reasonably be viewed as having

great importance.

In sum, after considering all of the evidence that has

been called to our attention, we conclude that a reasonable

factfinder could not find that the words, actions, or

omissions of the relevant ORIX Credit Alliance officers

evidenced their belief that Keller was doing as well as could

be expected under the circumstances. For this reason and

the others explained above, we therefore hold that Keller

cannot defeat summary judgment based on the first prong

of the Fuentes test.

2. Prong Two. Accordingly, we proceed to the question

whether Keller can survive summary judgment under prong

two of the Fuentes test. Under this prong, Keller must

identify evidence in the summary judgment record that

"allows the fact finder to infer that discrimination was more

likely than not a motivating or determinative cause of the

adverse employment action." Fuentes, 32 F.3d at 762. In

other words, under this prong, Keller 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's best evidence under prong two is his account of

his conversation with Ryan on April 13, 1992. As previously

noted, Keller testified that Ryan made the following

comments:

"We really can't complain if we're not out developing

relationships."

He said to me that he didn't see me traveling around

the country visiting with banks. He said I was spending

a lot of time in New York City. . . .

And then he said . . . "If you are getting too old for the

job, maybe you should hire one or two young bankers."

App. 27 (emphasis added). Although Ryan denied using the

words "If you are getting too old for the job," and although

Keller's contemporaneous notes of the conversation omit

any mention of this phrase, we are required, in reviewing

the district court's grant of summary judgment in favor of

20

ORIX Credit Alliance, to accept Keller's account of the

conversation.

Ryan's alleged words certainly constitute evidence from

which a reasonable factfinder could draw an inference of

age-based animus, but we do not think that these words

alone could reasonably be viewed as sufficient to prove by

a preponderance of the evidence that age was a

determinative cause of Keller's subsequent termination. For

one thing, the alleged comment occurred four or five

months prior to the time when Ryan decided that Keller

should be discharged. In addition, the alleged remark did

not refer to the question whether Keller should be retained

or fired but instead concerned the hiring of other employees

to assist him. Furthermore, the alleged statement pertained

to only one method of raising funds -- obtaining lines of

credit from banks outside New York City by traveling to

meet their officers. Even if Ryan's alleged statement is

interpreted to mean that he felt that Keller might be getting

too old to do the traveling necessary to raise funds in this

way, no evidence has been brought to our attention that

other methods of raising funds, such as beginning a

commercial paper program or utilizing asset-backed

securitization, would have required extensive travel.

Keller's remaining evidence under prong two is

insubstantial. Keller's statistical evidence is of little if any

value.4 Moreover, we reject Keller's suggestion that Ryan's

actions during his meeting with Keller on April 1, 1993,

when he asked for Keller's resignation, and his comments

during their subsequent restaurant meeting approximately

one week later constitute significant evidence of age-based

animus.

During the meeting on April 1, 1993, Ryan gave Keller a

draft letter of resignation to consider. See App. at 594.

Under the terms set out in this letter, Keller would have

_________________________________________________________________

4. Keller's brief states: "all six employees at or above the vice

president

level whom defendant has let go since September 1989 are over 40, even

though 22% of such positions are held by individuals under 40."

Appellant's Br. at 7. Without any demonstration of the statistical

significance of this data, a factfinder could not reasonably accord it

much if any weight.

21

received certain substantial benefits, including one-half his

annual salary plus $50,000. See App. 1114. In return,

Keller would have released ORIX Credit Alliance from all

claims. Id. at 1115. Noting that this blanket release would

have presumably included claims of age discrimination,

Keller seems to imply that the inclusion of this provision in

the letter evidences ORIX Credit Alliance's awareness that

Keller had grounds for an age-discrimination claim against

it. Appellant's Br. at 4. This implication is far-fetched.

Without evidence that a request for a blanket release is not

a common practice when an executive is asked to resign

under terms such as those set out in the letter, the

inclusion of this clause in the proposed letter of resignation

has little evidentiary worth.

Likewise, we reject Keller's argument that Ryan's

comments during the restaurant meeting evidenced

consciousness of guilt of age discrimination. See Appellant's

Br. at 4, 35. At the April 1, 1993 meeting, Keller had asked

Ryan:

"if he was asking for [Keller's] resignation because of

[his] age and [Keller] reminded him of the conversation

that [they] had in April of `92 when . . . he asked

[Keller] if [he] was getting too old for the job and

suggested that . . . if [he] were, that [he] hire one or two

young bankers.

Id. at 593. At his deposition, Ryan stated that he assumed,

based on Keller's comment, that Keller "was thinking of an

age discrimination suit." Id. at 512-13. At the subsequent

restaurant meeting, after rejecting Keller's request for a "$1

million plus" severance package, Ryan said:

Look, you do what you have to do . . . I have discussed

this with Jerry Mehl [the ORIX Credit Alliance general

counsel] and he doesn't see that we will have a problem

. . . [b]ut, you know, Jerry is a lawyer and lawyers

aren't always right.

Id. at 597.

Referring to these events, Keller's brief states:

Ryan's comments that Credit Alliance could be found

liable for age discrimination are evidence that, at a

22

minimum, he indeed had made the biased statement

Keller attributed to him.

Appellant's Br. at 4. Keller further argues that evidence of

age discrimination is provided by "Ryan's statements at the

time of Keller's discharge that he assumed that Keller

would sue for age discrimination." Appellant's Br. at 35

(footnote omitted). These arguments have no merit.

When Keller asked at the April 1, 1992 meeting whether

he was being fired because of his age, any reasonable

person would have realized that Keller might thereafter sue

for age discrimination. Thus, Ryan's assumption that Keller

might file such a suit hardly constitutes evidence of

consciousness of guilt.

Furthermore, Ryan's statement that his company's

general counsel might turn out to be wrong in predicting

that Keller's termination would not cause a "problem" has

little if any evidentiary value to show that Ryan believed

that Keller had a meritorious age-discrimination claim.

Needless to say, even an ultimately unsuccessful claim may

constitute a "problem," and due to the vagaries of the legal

process, unmeritorious suits are not always unsuccessful

(just as meritorious suits do not always succeed).

In assessing whether the proof in this case is sufficient to

establish by a preponderance of the evidence that age was

a determinative cause of Keller's termination, a reasonable

factfinder would have to consider, in addition to the

evidence noted above, the proof underlying the elements of

the prima facie case. Thus, a reasonable factfinder would

have to weigh the fact that Keller, who was 51 years old

when fired, was replaced by a man who was about four

years and ten and one-half months younger.

Finally, a reasonable factfinder would also have to

consider the evidence, which we discussed in part IIA1 of

this opinion, that ORIX Credit Alliance had a powerful,

legitimate reason for discharging Keller, namely, his failure

to meet or even approach the critical $1.5 billion goal that

he himself had set. A reasonable factfinder would have to

ask whether a company like ORIX Credit Alliance was more

likely to be concerned about Keller's failure to raise these

23

funds or about replacing him with a man who was some

four years and ten and one-half months younger.

Considering all of the evidence that is relevant with

respect to prong two, we conclude that a reasonable

factfinder could not find that the proof is sufficient to

establish by a preponderance of the evidence that age was

a determinative factor in Keller's termination.

Consequently, we hold that Keller cannot survive summary

judgment under prong two of the Fuentes test. Since we

have already held that he failed under prong one as well, it

follows that he cannot defeat summary judgment under the

scheme of proof set out in McDonnell Douglas.

B. Price Waterhouse

We therefore move on to Keller's argument that he was

entitled to survive summary judgment under Price

Waterhouse. Under Justice O'Connor's controlling opinion

in Price Waterhouse, if a plaintiff "show[s] by direct evidence

that an illegitimate criterion was a substantial factor in the

decision," the burden of persuasion shifts to the employer

"to show that the decision would have been the same

absent discrimination." 490 U.S. at 276 (O'Connor, J.

concurring) (emphasis added). See Armbruster v. Unisys

Corp., 32 F.3d 768, 778 (3d Cir. 1994). The precise

meaning of Justice O'Connor's term "direct evidence" has

divided the courts. See Linda Hamilton Krieger, The Content

of Our Categories: A Cognitive Bias Approach to

Discrimination and Equal Employment Opportunity, 47 Stan.

L. Rev. 1161, 1220-21 (1995) (describing the varying

approaches of the circuits); Note, Despite the Smoke, There

Is No Gun: Direct Evidence Requirements in Mixed-Motives

Employment Law After Price Waterhouse v. Hopkins, 46

Stan. L. Rev. 959, 970-79 (1994) (same). Similarly, when

the present case was before the panel, the majority and the

dissent disagreed on the question whether Ryan's alleged

statement on April 13, 1992, constituted "direct evidence"

within the meaning of Price Waterhouse.

On reconsidering this case en banc, we conclude that it

is not necessary for us to resolve this question. We have

held in part IIA2 of this opinion that a reasonable jury

24

could not find by a preponderance that age was a

determinative factor. If we held that Keller provided "direct

evidence" within the meaning of Price Waterhouse, Keller

could avoid summary judgment only if a reasonable jury

could fail to find by a preponderance that age was not a

determinative factor. Here, for the reasons explained above

in part IIA2 of this opinion, a reasonable factfinder could

not fail to find by a preponderance that age was not a

determinative factor in Keller's termination. We therefore

hold that Keller cannot survive summary judgment on his

discharge claim under Price Waterhouse.

III.

We proceed finally to Keller's claim that ORIX Credit

Alliance failed to promote him to the position of chief

operating officer in May 1992 because of his age. Assuming

for the sake of argument that Keller could make out the

elements of a prima facie case with respect to this

promotion decision, we hold that ORIX Credit Alliance

proffered a legitimate explanation for the decision and that

Keller did not satisfy either prong one or two of the Fuentes

test.5

Ryan explained that he felt that the job of chief operating

officer "required someone [who] had a deep understanding

and background of the company's primary business,

someone who held a line position with the company,

preferably someone who had personally performed as many

of the tasks that are required to operate the company's

business as possible." App. 101. Keller has not pointed to

any evidence showing that ORIX Credit Alliance did not in

fact rely on this criteria in choosing the new chief operating

officer. Nor has Keller pointed to any evidence that he

_________________________________________________________________

5. Although Keller relies on the NJLAD with respect to his failure-to-

promote claim, the relevant legal principles are the same as those

applicable under the ADEA. See McKenna v. Pacific Rail Serv., 32 F.3d

820 (3d Cir. 1994) (predicting New Jersey Supreme Court would follow

Hicks); Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 103 (N.J. 1990)

(McDonnell Douglas scheme applies under LAD); Burke v. Township of

Franklin, 619 A.2d 903 (N.J. Super. Ct. App. Div. 1993) (looking to ADEA

in interpreting LAD).

25

possessed such experience. Furthermore, the selection of

the new chief operating officer came at a time when Keller

was failing in the performance of the job he then held.

Months earlier, he had been relieved of his responsibilities

as chief credit officer so that he could focus on raising

funds, and by May 1992, it is undisputed that Keller was

being repeatedly questioned about his failure to meet or

approach the $1.5 billion target. Under these

circumstances, it is apparent that the company had

legitimate reasons for failing to promote Keller to the top

position of chief operating officer. Thus, Keller failed to

satisfy prong one of the Fuentes test.

We likewise hold that Keller failed to meet prong two of

that test. We have already discussed all of the evidence on

which Keller relies to show age discrimination, and we will

therefore not discuss that evidence again here. Considering

all of that evidence, and keeping in mind that Ryan's

alleged comment on April 13, 1992, came only a few weeks

before the promotion decision was made, we nevertheless

conclude that the evidence is insufficient to convince a

reasonable factfinder by a preponderance that age was a

determinative factor in the promotion decision.

IV.

For the reasons explained above, we therefore affirm the

decision of the district court granting summary judgment in

favor of ORIX Credit Alliance on all of Keller's claims.

26

ROTH, J. concurring and dissenting:

I join in all parts of the majority opinion except for Part

II.B. I do not believe that we can avoid resolving the

question of whether Ryan's alleged statement on April 13,

1992, constituted "direct evidence" within the meaning of

Price Waterhouse. In avoiding this question, the majority is

by necessity deciding something. First of all, it is deciding

that "direct" evidence may be of such little probative value

that it need not rise to the level of creating a material issue

of fact or of preventing a grant of summary judgment in

favor of the defendant. If such a decision were not implicit

in the majority's conclusion in Part II.B, the majority would

have not been able to affirm the district court's granting of

summary judgment in a case in which there is the

possibility that "direct evidence" has been proffered by the

non-moving plaintiff. I do not consider that "direct

evidence" could be of such little probative value that, if it

were present in any given case, it would be sufficient to be

classified as "direct" but not sufficient to prevent summary

judgment.

A second implied determination that can be read into

Part II.B is that "direct evidence" may be determined by

reviewing all the evidence that will be presented to the fact

finder. I am troubled by the breadth of such a holding.

Moreover, I am not sure that it can be read to follow from

Justice O'Connor's statement in Price Waterhouse . I would

conclude instead that, when Ryan's April 13 remark is

viewed in the context in which it was made and in light of

the possible ambiguities inherent in the language he used,

his statement is not "direct evidence."

A third assumption that I can draw from the reasoning of

Part II.B is that the majority arrived at the decision that it

did in Part II.A.2 only by, in essence, determining that

Ryan's April 13 remark was not "direct evidence" of

discrimination. If that is so, then why not say so.

27

LEWIS, Circuit Judge, dissenting.

The Age Discrimination in Employment Act makes it

unlawful to "discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of

employment, because of such individual's age." 29 U.S.C.

S 623(a)(1). Like other employment discrimination claims,

claims under the ADEA can be established either by the

presentation of direct evidence of discrimination under Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989), or of evidence

which creates an inference of discrimination under the

framework of McDonnell Douglas-Burdine.

The sum of Keller's argument on appeal is that there is

sufficient evidence in this case to withstand a motion for

summary judgment under either approach. The majority

disagrees, finding that while that may be the sum, it carries

little substance. Instead, the majority concludes that the

evidence is insufficient to convince a reasonable factfinder

that Credit Alliance discriminated against Keller based on

his age. For the reasons which follow, I respectfully dissent.

I. MIXED MOTIVE UNDER PRICE WATERHOUSE

As we have said, when an employee presents evidence

supporting a reasonable inference that a decisionmaker

relied upon an illegitimate criterion, summary judgment for

the employer is not appropriate. Weldon v. Kraft , 896 F.2d

793, 797 (3d Cir. 1990); Hankins v. Temple University, 829

F.2d 437, 440 (3d Cir. 1987).

A plaintiff who makes such a case in resisting the

defendant's motion for summary judgment does not

need the help of McDonnell Douglas to resist the

motion. He walks as it were without crutches. For he

has presented enough evidence to defeat a motion for

summary judgment under the general test for the grant

of such a motion . . . .

Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990).

We have recognized that "[w]hen direct evidence is

available, problems of proof are no different than in other

civil cases." Goodman v. Lukens Steel Company, 777 F.2d

28

113, 130 (3d Cir. 1985) (citation omitted). The issue

becomes whether the employer did in fact rely upon the

illegitimate criterion, which "is precisely the sort of question

which must be left to the jury." Siegel v. Alpha Wire Corp.,

894 F.2d 50, 55 (3d Cir. 1990).

In my view, Keller provided evidence which reflects a

discriminatory animus on the part of a person involved in

the decisionmaking process. As the majority notes, Keller

testified that during the first meeting in which he was ever

criticized about his job performance, Ryan specifically

stated, "If you are getting too old for the job, maybe you

should hire one or two young bankers."6

I believe that Ryan's statement is sufficient evidence of a

discriminatory animus under Price Waterhouse. First, as

CEO of the company, Ryan is clearly a decisionmaker, and

in this case has admitted that he was the principal

decisionmaker in firing Keller. Second, it seems rather

obvious that Ryan's suggestion that Keller may be getting

too old to perform his job properly and that he hire younger

bankers could reflect a discriminatory animus on the basis

of age. Such a comment, if true, is by no means shrouded

in ambiguity, and there is no evidence to suggest that it

was stated facetiously. In addition, the comment was made

during a conversation about Keller's performance.

According to Keller, the comment was made at the meeting

in which he was first informed that his performance was

considered unsatisfactory. I believe, therefore, that a

reasonable factfinder could conclude that the comment was

related to the decisionmaking process itself. As the majority

notes, Ryan was critical of Keller's performance at the time

this alleged comment was made. Majority Opinion at 16-17.

_________________________________________________________________

6. The majority concludes that the "too old" comment is insufficient proof

of age-based animus because it occurred "four or five months" prior to

the discharge decision and only pertained to one aspect of Keller's

duties. Majority Opinion at 20-21. While this is certainly a powerful

argument, it is an interpretation which goes to the weight of the

evidence, and is a question for the finder of fact. Shager v. Upjohn Co.,

913 F.2d 398, 402 (7th Cir. 1990) ("[T]he task of disambiguating

ambiguous utterances is for trial, not for summary judgment. On a

motion for summary judgment the ambiguities in a witness's testimony

must be resolved against the moving party.").

29

Since Ryan decided to fire Keller only a few months later,

the age-related comment is probative of the factors

considered in Ryan's decision to terminate Keller. See

Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1165 (7th Cir.

1994) (holding that comments about the company not

keeping employees on until they reached sixty-five could

not be considered stray remarks for the purposes of

summary judgment); Shager, 913 F.2d at 400-02 (holding

that comments including "These older people don't much

like or much care for us baby boomers, but there isn't

much they can do about it," constituted direct evidence at

the summary judgment phase).

I do not consider this comment a stray remark,

insufficient as direct evidence of discrimination, simply

because it was the only age-related remark Keller could

recall. Just as there are "no talismanic expressions which

must be invoked as a condition-precedent to the application

of laws designed to protect against discrimination," there is

also no specific frequency with which discriminatory

remarks must be expressed before our protective laws are

triggered. Aman v. Cort Furniture Rental Corporation, 85

F.3d 1074, 1083 (3d Cir. 1996). The key inquiry is not the

number of times a comment is made but the context in

which it is made.

If the single comment is made by a decisionmaker and

reflects a discriminatory animus toward the plaintiff in the

decisionmaking process, it might well constitute direct

evidence of discrimination. See Price Waterhouse, 490 U.S.

at 241 ("The critical inquiry . . . is whether[the illegitimate

criterion] was a factor in the employment decision . . . .").

Unlike hostile environment claims, Price Waterhouse

considers only the nature and probative value of the alleged

discriminatory comment, and not the frequency with which

it was stated, because an employer's "[r]eliance on [illegal]

factors is exactly what the threat of Title VII liability was

meant to deter." Id. at 265 (O'Connor, J., concurring). As

discussed above, the alleged age-related remark in this case

was made by the principal decisionmaker during his

critique of Keller's work performance, and could be

interpreted as reflecting a negative attitude toward his age.

See Robinson, 23 F.3d at 1165 (holding that potentially age-

30

related comments made by the supervisor who decided to

terminate the plaintiff were sufficient direct evidence of

discrimination to survive summary judgment).

As we have stated, since "discriminatory comments by an

executive connected with the decisionmaking process will

often be the plaintiff's strongest circumstantial evidence of

discrimination, they are highly relevant . . . ." Abrams v.

Lightolier Inc., 50 F.3d 1204, 1215 (3d Cir. 1995). Since

Keller presented evidence which could allow a factfinder to

conclude that Ryan relied on an illegitimate criterion in

making his employment decision, I believe that summary

judgment was inappropriate. Given this evidence, Credit

Alliance's proffered legitimate reason for discharging Keller

simply creates a material issue of fact, rather than

demonstrating the absence of one.

II. PRETEXT UNDER MCDONNELL DOUGLAS-BURDINE

Since the majority assumes that Keller has presented a

prima facie case, I will next address whether the evidence

presented is sufficient to survive summary judgment under

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).

A. Evidence Supporting An Inference of Discrimination

Under the McDonnell Douglas-Burdine framework, I

believe Keller has offered sufficient evidence which could

support a finding that Credit Alliance's proffered

explanation is pretext and therefore creates a material issue

of fact as to the credibility of that explanation.

1. Evidence of Discrimination

We have consistently held that a plaintiff who has made

out a prima facie case can defeat a motion for summary

judgment by "adducing 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. Evidence of

age-based comments made by a supervisor, therefore, could

support an inference that the termination decision was

made because of the plaintiff's age. Abrams, 50 F.3d at

1214; Torre v. Casio, Inc., 42 F.3d 825, 834 (3d Cir. 1994);

31

Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir.

1994).

Indeed, we have held that discriminatory comments by

nondecisionmakers, or statements temporally remote

from the decision at issue, may properly be used to

build a circumstantial case of discrimination. [See]

Roebuck v. Drexel University, 852 F.2d 715, 733 (3d

Cir. 1988) (upholding admissibility of discriminatory

comment by decisionmaker made five years before

denial of tenure).

Abrams, 50 F.3d at 1214 (citation omitted). When combined

with Keller's prima facie case, Ryan's suggestion that

perhaps Keller was getting "too old" for the job, and that he

should hire some "young bankers" could clearly support an

inference of discrimination.

This conclusion is supported by our prior decisions. In

Roebuck, we concluded that the comment that "in terms of

comparable white faculty members . . . blacks would cost

Drexel more money to hire those black faculty members,"

could give rise to an inference of discrimination even when

made five years before the decision in question. 852 F.2d at

733. Similarly, in Waldron v. SL Industries, Inc., we found

that when combined with the plaintiff 's prima facie case, a

comment that he should lose some weight because it would

make him healthier and look younger, made five months

before the termination, could support the conclusion that

age was more likely than not a determinative factor. 56

F.3d 491, 502 (3d Cir. 1995). Likewise, an inference of

discrimination was evident in Abrams, given comments like

"things would hum around here when we got rid of the old

fogies," and the fact that two older employees were referred

to as "a dinosaur" and "the old men." 50 F.3d at 1214.

Finally, in Torre, we found that the statement "did you

forget or are you getting too old, you senile bastard?" could

reasonably lead to an inference of age-based discrimination.

42 F.3d at 834. See also Robinson, 23 F.3d at 1165;

Shager, 913 F.2d at 402-03.

I must note that the fact Keller was replaced by an

individual roughly five years his junior should not and does

not impair Keller's ability to maintain a claim under the

32

ADEA. Whether the age gap is five years or twenty-five

years is irrelevant. See O'Connor v. Consolidated Coin

Caterers Corporation, 116 S. Ct. 1307, 1310 (1996) (holding

that a plaintiff need not be replaced by someone outside the

protected class to maintain a claim under the ADEA). The

district court thus erred in holding that Keller had to

present evidence that he was "replaced by someone

significantly younger to permit an inference of age

discrimination." Majority Opinion at 12 (quoting District

Court Opinion at 8). I recognize that the majority's opinion

does not affirm this particular holding of the district court,

but I am troubled that it also does not explicitly disavow

the holding. Because of the importance of this point, and

for purposes of clarity in future cases, the inclusion of such

a disclaimer in the majority's opinion would have been

appropriate, as I will explain below.

The Supreme Court has held that there is no particular

age difference that must be shown to maintain a claim of

age discrimination. See O'Connor, 116 S. Ct. at 1310; see

also Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d

Cir. 1995). In other words, "[t]here is no magical formula to

measure a particular age gap and determine if it is

sufficiently wide to give rise to an inference of

discrimination." Barber v. CSX Distribution Servs., 68 F.3d

694, 699 (3d Cir. 1995). As we have noted, "[d]ifferent

courts have held, for instance, that a five year difference

can be sufficient but that a one year difference cannot."

Sempier, 45 F.3d at 729 (citing Douglas v. Anderson, 656

F.2d 528, 533 (9th Cir. 1981) and Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1087 (3d Cir. 1992)). See

also Corbin v. Southland Int'l Trucks, 25 F.3d 1545, 1550

(11th Cir. 1994) (finding evidence of pretext when a 53

year-old was treated more favorably than a 58 year-old

employee). In order to survive summary judgment, the

evidence need only provide a basis for a reasonable

factfinder to conclude that a discriminatory animus was at

play in the employer's decision. O'Connor, 116 S. Ct. at

1310. Accordingly, the "replacement by even an older

employee will not necessarily foreclose . . . proof if other

direct or circumstantial evidence supports an inference of

discrimination." Douglas v. Anderson, 656 F.2d 528, 533

(9th Cir. 1981) (emphasis added). In fact, the Tenth Circuit,

33

in Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th

Cir. 1996), reversed a grant of summary judgment as to an

ADEA claim even though the replacement was five years

older than the plaintiff.

Beyond the context of age discrimination, other courts of

appeal have been cognizant of the fact that an employer

can act with a discriminatory animus even when replacing

a discharged employee with a member of the same

protected class. In Carson v. Bethlehem Steel Corporation, 8

F.3d 157 (7th Cir. 1996), the district court had concluded

that the fact that Carson, who was white, was replaced by

a white employee prevented her from establishing a prima

facie case of discrimination. The court of appeals for the

Seventh Circuit rejected this conclusion, observing that,

[The Supreme Court's opinion in] O'Connor v.

Consolidated Coin Caterers Corp., ___ U.S. ___, 116 S.

Ct. 1307, 134 L.Ed.2d 433 (1966), shows that this

understanding of a prima facie case is erroneous. The

Court held in O'Connor that the plaintiff in an age

discrimination suit need not show that he was replaced

by a person outside the protected class. Laws against

discrimination protect persons, not classes, the Court

remarked, an observation with equal force in a case

under the Civil Rights Act of 1964.

Id. at 158.

The court then illustrated the point with the following

hypothetical:

Suppose an employer evaluates its staff yearly and

retains black workers who are in the top quarter of its

labor force, but keeps any white in the top half. A

black employee ranked in the 60th percentile of the

staff according to supervisors' evaluations is let go,

while all white employees similarly situated are

retained. This is race discrimination, which the

employer cannot purge by hiring another person of the

same race later.

Id.

In the same vein, another court has noted that

replacement with a protected class member does not negate

34

a discriminatory animus if the employer is "less tolerant of

indiscretions committed by black employees than of those

committed by whites." Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1186 n.1 (11th Cir. 1984)

(citing McDonald v. Santa Fe Trail Transportation Company,

427 U.S. 273, 282-83 (1976)). Significantly, the Nix court

also noted that replacement with another member of the

same class may serve as "a pretextual device, specifically

designed by [the employer] to disguise its act of

discrimination toward [the discharged employee.]" 738 F.2d

at 1186 n.1 (quoting Jones v. Western Geophysical Co. Of

America, 669 F.2d 280, 284 (5th Cir. 1982)). In fact, in the

racial context, replacement with another member of the

protected class often enables an employer to mask

discriminatory motives while realizing racist ideals and

stereotypes. The replacement of darker-skinned black

employees with lighter-skinned black employees occurs

every day in this country in the hope of making white co-

workers and customers more "comfortable." Similarly, we

all know that the replacement of one woman with another

who more closely resembles a traditional conception of the

so-called "feminine ideal," in terms of physical appearance,

demeanor, (lack of) assertiveness, etc., is not some abstract

theory; it is reality, and it happens every day, in business,

in the media, and even in our esteemed profession.

In all of these cases, a discriminatory animus can be

present even though the replacement is of the same

protected class as the discharged employee. The majority

declines to acknowledge that a replacement's "race, sex, or

age may help to raise an inference of discrimination, but it

is neither a sufficient nor a necessary condition." Carson,

82 F.3d at 159 (citations omitted); see also Nieto v. L&H

Packing Company, 108 F.3d 621, 624 n.7 (5th Cir. 1997)

(fact that Hispanic employee's replacement was also

Hispanic does not preclude "possibility that the discharge

was motivated [by] discriminatory reasons"); Monette v.

Electronic Data Systems Corporation, 90 F.3d 1173, 1185

n.11 (6th Cir. 1996) (disabled employee need not show

replacement is non-disabled to present prima facie case of

discrimination). But as the Supreme Court has emphasized,

"[t]he fact that one person in the protected class has lost

out to another person in the protected class is . . .

35

irrelevant, so long as he has lost out because of[an illegal

criterion]." O'Connor, 116 S. Ct. at 1310. An employer does

not have "license to discriminate against some employees

on the basis of race or sex [or age] merely because he

favorably treats other members of the employees' group."

Connecticut v. Teal, 457 U.S. 440, 455 (1982).

We have already recognized instances of age

discrimination in the absence of a considerable age gap

between the discharged employee and the replacement. In

Sempier, for example, we found that the plaintiff had

presented evidence from which a factfinder could

"reasonably conclude that [an] employment decision was

made on the basis of age" even though the replacement was

only four years younger. 45 F.3d at 729. Without deciding

whether four years alone was enough, we concluded that

the four year difference, combined with the fact that the

plaintiff 's functions were also temporarily transferred to

someone well over ten years younger, were sufficient to

support an inference of age discrimination. Id. at 730.

I believe that the approximate five year age difference

between Keller and his replacement, particularly when

combined with Ryan's age-based comment, is sufficient to

establish an inference that Keller's age was a motivating

factor in Credit Alliance's decision. Given Keller's

experience, and the fact that the age difference spans

chronological decades, so to speak (Keller was in his "fifties"

while his replacement was in his "forties"), a factfinder

could reasonably conclude age was a determinative factor

in the decision to fire Keller. See Pace v. Southern Ry.

System, 701 F.2d 1383, 1387 (11th Cir. 1983) ("Seldom will

a sixty year-old be replaced by a person in the twenties.

Rather the sixty-year-old will be replaced by a fifty-five

year-old, who, in turn, is succeeded by someone in the

forties, who also will be replaced by a younger person.").

The precise gap in age between Keller and his replacement

is less relevant than the overall impression presented by

the evidence that Credit Alliance used age as a

determinative factor in making its decision. See O'Connor,

116 S. Ct. at 1310 (stating "irrelevant factor[s]" should not

take precedence over "evidence adequate to create an

inference that an employment decision was based on a[n]

36

[illegal] discriminatory criterion"). Since Keller produced

evidence which could support the conclusion that age was

more likely than not a motivating factor in Ryan's decision

to terminate him, Credit Alliance's proffered reason merely

creates a material issue of fact.

In sum, while I agree with the majority that the

narrowness of the age gap between Keller and his

replacement is a factor a reasonable factfinder would have

to consider, I do not agree that "the gap" does not permit a

reasonable inference of discrimination.

2. Evidence That the Employer's Proffered Reason Is Not

Worthy Of Credence

A plaintiff in an employment discrimination case may

also defeat a motion for summary judgment by presenting

evidence from which a reasonable factfinder could conclude

that the defendant's proffered justifications are not worthy

of credence. Torre, 42 F.3d at 832; Fuentes, 32 F.3d at 764

(legal principle reaffirmed in Sheridan v. E.I. DuPont de

Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en

banc)). Credit Alliance's proffered reason for terminating

Keller was his failure to make adequate progress toward

achieving their financing goal. Credit Alliance argues, and

the majority concludes, that Keller's evidence is aimed at

simply demonstrating that this decision was wrong

because, according to Keller, it was impossible to reach the

goal. Majority Opinion at 15-17. This conclusion

misinterprets both the evidence and Keller's argument.

Keller is not arguing that the proffered reason is

pretextual because it is wrong. He is arguing that Credit

Alliance was aware of the outside factors that hindered his

ability to obtain funding, and that they did not fault him for

the results of his efforts.

While pretext is not demonstrated by showing that the

employer was mistaken, Ezold v. Wolf, Block, Schorr and

Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1993), it can be

established by "evidence of inconsistencies or anomalies

that could support an inference that the employer did not

act for its stated reason." Sempier, 45 F.3d at 731 (citing

Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d

Cir. 1993)) (emphasis added). The thrust of the evidence

37

and Keller's argument is that Credit Alliance was not

dissatisfied with his performance, because it knew that

efforts to obtain outside fundraising were impeded by

various market forces.

Keller relies upon evidence which could establish: (1) that

Credit Alliance's disappointing progress was due to forces

beyond his control; (2) that Credit Alliance recognized that

fact; and (3) that it knew that this poor showing was not

attributable to him. Seen in the light most favorable to

Keller, I think it is clear that a reasonable jury could

consider Credit Alliance's explanation that Keller was fired

for "poor performance" pretextual. See Sorba v.

Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir. 1987)

(reversing summary judgment when the plaintiff proffered

evidence "that his supervisors realized that the poor results

were not his fault [and that the] testimony of the movant's

witnesses was inconsistent regarding whether they believed

[plaintiff]'s performance caused the unsatisfactory job

results"). See also Rhodes v. Guiberson Oil Tools, 75 F.3d

989, 996 (5th Cir. 1996) (en banc) (holding that there was

sufficient evidence to support a finding of discrimination

when the plaintiff demonstrated that the employer's

proffered explanation of poor performance was pretextual

because his poor results were due to the company's prices

and a poor customer base); Johnson v. Group Health Plan,

Inc., 994 F.2d 543, 546 (8th Cir. 1993) (report stating that

morale problems caused by other factors created factual

issue regarding plaintiff 's performance); Mastrangelo v.

Kidder, Peabody & Co., 722 F. Supp. 1126, 1134 (S.D.N.Y.

1989) (finding sufficient evidence showing defendant's

criticism of plaintiff 's performance was pretextual where

problems of his department were attributable, at least in

part, to matters beyond his control).

Furthermore, unlike the majority, I believe the absence of

any criticism of Keller's performance would permit a

reasonable factfinder to disbelieve Credit Alliance's

proffered explanation. The majority unnecessarily

complicates the analysis by requiring Keller to show that

"other comparable employees" received evaluations of their

work. Majority Opinion at 19. Regardless of Credit

Alliance's general evaluative practices, I find it difficult to

38

conceive of an employee's work being so inadequate as to

warrant termination but not so poor as to warrant some

criticism before the point of termination. Indeed, we have

generally confined our analysis to an employer's evaluation

of the discharged employee, not an employer's general

practice of assessing employee performance. In Sempier, for

example, we concluded that a genuine issue existed as to

pretext because of the plaintiff 's own testimony of

satisfactory performance combined with evidence that he

was not criticized while still employed. 45 F.3d at 731-32.

To justify firing Keller, the only evidence offered by Credit

Alliance is the post-hoc deposition testimony of some of the

members of the board of directors who ratified the decision

to fire Keller. With the exception of Ryan's testimony and a

purported comment made after Ryan decided to fire Keller,

much of the evidence is ambiguous as to whether the

statement represented criticism. For the most part, Credit

Alliance asks us to infer that questions about the progress

of the fundraising were criticisms of Keller's performance.

For example, Credit Alliance points to the fact that one of

its outside directors suggested that Keller be relieved of his

duties as Chief Credit Officer so he could concentrate on

raising funds, and asks that we consider this suggestion a

"criticism" of Keller's performance. However, we cannot

draw such an unwarranted inference at the summary

judgment phase, particularly in view of the fact that Keller

offered evidence that when questioned about the progress,

the board accepted his explanation that difficulties in the

U.S. and Japanese economies made it difficult to secure

funding on terms more favorable than the terms provided

by their current source.

Finally, the majority improperly relies on events which

occurred after Keller was fired. The majority suggests that

Credit Alliance's ability to raise nearly $500 million using

asset-backed securitization, the technique eschewed by

Keller, indicates that its dissatisfaction with Keller's work

was sincere. Majority Opinion at 16-17. However, this tactic

did not prove successful until after Keller's discharge so it

should not have any bearing on the determination of

whether Credit Alliance acted with a discriminatory

animus. "The employer could not have been motivated by

39

knowledge it did not have, and [therefore] it cannot . . .

claim that the employee was fired for the nondiscriminatory

reason." McKennon v. Nashville Banner Publishing Co., 513

U.S. 352, 360 (1995).

It is also true that Keller's performance subsequent to

Ryan's decision to terminate him is relevant for establishing

pretext. Ryan testified that if Keller had come up with a

plan and demonstrated some success in achieving it, he

(Ryan) might have changed his mind. Keller provided

evidence to demonstrate that he had done the preliminary

work on some, if not all, of the means of financing that

later proved to be successful. In particular, Keller points to

evidence that he formulated a plan to achieve Credit

Alliance's financing goal. In deposition testimony, Ryan

admitted that the steps outlined in the plan provided by

Keller were the ones followed by Credit Alliance in

successfully raising funds in 1993 and 1994. Also, Keller

successfully secured the $100 million private placement

that was the first step in improving Credit Alliance's credit

rating. Despite Keller's plan and demonstration of success,

however, Ryan terminated him. A jury could conclude that

Keller played a significant role in Credit Alliance's

subsequent attainment of its funding goal, and that Credit

Alliance's claim of poor performance, therefore, was

pretextual.

Given this evidence, there is a material issue of fact as to

whether Credit Alliance recognized the economic problems

associated with the fundraising and therefore whether

Keller's performance was the reason for his discharge.

If a factfinder were to accept Keller's evidence and

interpretation of that evidence, it could reasonably conclude

that Credit Alliance did not in fact fire him based upon any

dissatisfaction with his ability to raise financing. The

factfinder could then further conclude that Keller was

terminated because of his age. Fuentes, 32 F.3d 759, 764.

As material issues of fact remain in dispute, summary

judgment in favor of Credit Alliance is inappropriate.

III. FAILURE TO PROMOTE

Credit Alliance argues that Keller has not demonstrated

that he was qualified for the position of Chief Operating

40

Officer, did not apply for the position, and that he is

estopped from asserting a discrimination claim because as

a member of the board of directors he voted for Copper's

appointment. I believe that there is sufficient evidence in

the record for Keller's failure to promote claim to survive

summary judgment. First, Keller clearly established that he

was qualified for the position of Chief Operating Officer. In

reviewing qualifications, we must only look to objective

criteria, such as Keller's education and experience. See

Weldon, 896 F.2d at 798. Second, Keller correctly argues

that he was not required to apply for the position. See

Carmichael v. Birmingham Saw Works, 738 F.2d 1126,

1133 (11th Cir. 1984) (holding plaintiff can maintain claim

of discrimination, without having applied for job, if

employer "had some reason or duty to consider him for the

post"). Keller's senior management position, his prior

consideration for the position of President of Credit

Alliance, and Ryan's knowledge that Keller was interested

in the Chief Operating Officer position are sufficient to

establish a prima facie case as to this claim.

I do not believe that Credit Alliance's proffered

justification for refusing to consider or promote Keller

entitles it to summary judgment. According to Ryan, the

position of Chief Operating Officer required line experience

and a thorough understanding of the company's business,

which he claims Keller lacked. Yet, as discussed above,

Ryan's alleged statement that Keller may be too old to do

his job, made only weeks before the promotion decision, is

evidence from which a jury could infer discrimination.

Furthermore, Keller points to evidence from the Chair of

Credit Alliance's predecessor company that he did, in fact,

have a thorough understanding of the business and was

considered a candidate for president of the company at the

time Ryan was ultimately selected. In light of this evidence,

a factfinder could conclude that Credit Alliance's claim that

Keller was not qualified is pretextual. Consequently, there

is sufficient direct, as well as indirect, evidence from which

a factfinder could also conclude that Keller was not

promoted because of his age.

CONCLUSION

To summarize, I believe that there is sufficient direct and

indirect evidence of discrimination for Keller's ADEA and

41

NJLAD claims to survive summary judgment. I would,

accordingly, reverse the district court's judgment in its

entirety and remand for further proceedings.

Joined by Judges Mansmann and McKee.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

42