Fasold v. Justice

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

6-1-2005

Fasold v. Justice

Precedential or Non-Precedential: Precedential

Docket No. 04-2363

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-2363

ROBERT FASOLD,

Appellant

v.

EDMUND JUSTICE, County Chief of Detectives;

OSCAR VANCE, County Chief of Detectives;

OFFICE OF DISTRICT ATTORNEY

OF MONTGOMERY COUNTY;

FRANK BASON, Lieutenant County Detectives;

COUNTY OF MONTGOMERY

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 02-cv-09187)

District Judge: Hon. Thomas N. O’Neill, Jr.

Argued February 15, 2005

Before: SLOVITER, AMBRO, and ALDISERT, Circuit Judges

(Filed June 1, 2005)

Walter M. Phillips, Jr. (Argued)

Kevin J. Kotch

Hoyle, Fickler, Herschel & Mathes LLP

Philadelphia, PA 19107

Attorneys for Appellant

Charles W. Craven (Argued)

Marshall, Dennehey, Warner, Coleman & Goggin

Philadelphia, PA 19103-4717

Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Robert Fasold, a former detective in the office of the

District Attorney in Montgomery County, Pennsylvania, appeals

the order of the District Court entering summary judgment

against him and dismissing his complaint alleging that his

termination violated the state and federal age discrimination acts.

He sued his former supervisors and employer: Deputy Chief

Detective Edmund Justice, Chief Detective Oscar Vance,

Lieutenant Detective Frank Bason, District Attorney Bruce

Castor, the Office of the District Attorney for Montgomery

County, and Montgomery County, Pennsylvania (hereinafter

collectively “Defendants”).

The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1367; this court has jurisdiction under 28 U.S.C. §

1291. For the reasons set forth below, we will reverse.

I.

In reviewing the grant of summary judgment, we must

view “the underlying facts and all reasonable inferences

therefrom in the light most favorable to the party opposing the

motion,” here Fasold. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231,

236 (3d Cir. 1995); see also In re Flat Glass Antitrust Litig., 385

F.3d 350, 357 (3d Cir. 2004).

Fasold was thirty-three 1 years old in 1986 when he began

1

In its memorandum opinion, the District Court erroneously

stated that Fasold was born September 24, 1962, when he was in

2

his work as a detective at the Montgomery County District

Attorney’s Office.2 During his first two years with the District

Attorney’s Office he worked in the Major Crimes Unit; in 1988

he went to the Narcotics Unit where his primary duty was the

care, performance, and handling of a drug-sniffing canine. In

1992, he was transferred back to the Major Crimes Unit where

he spent the next eight years. His primary responsibility was the

investigation of white collar crime.

In November 2000, Fasold was told that effective January

2, 2001, he was being transferred back to the Narcotics Unit.

Fasold was uncomfortable with the proposed move because of

his lack of experience in Narcotics (the drug dog aside) and his

positive work experiences and evaluations in Major Crimes.

Also, Fasold remembered that the detectives in Narcotics were

expected to work with informants and to make undercover buys–

tasks for which Fasold felt ill-suited. Fasold, who had spoken

with Vance in October 2000 about coming to work early and

leaving early so that he could care for his children, was also

concerned about the transfer because of the irregular working

hours and overtime for detectives in the Narcotics Unit.

After Fasold learned of the impending reassignment, he

raised his concerns with both Justice and Vance. He also voiced

his concerns to Bason, a supervisor in the Narcotics Unit.

According to Fasold, during the latter conversation Bason stated:

“[C]an’t you see the handwriting on the wall? . . . [T]hey don’t

want you here anymore.” App. at 85. Bason does not deny that

he used the expression the “handwriting on the wall,” but recalls

that he used it at a later time, indicating that it was in reference

to Fasold’s poor performance at work. App. at 589-90. In any

event, despite his protestations, Fasold’s reassignment to the

Narcotics Unit occurred as planned. Fasold avers that, although

he obviously was not pleased with the transfer, he tried to

fact born September 24, 1952.

2

Prior to taking the job with the Montgomery County

District Attorney’s Office, Fasold held various law-enforcement

positions with Springfield Township, Pennsylvania.

3

“mak[e] the best of it.” App. at 85.

In May 2001, Bason approached Fasold complaining that

Fasold’s record since he rejoined the Narcotics Unit contained

an insufficient number of investigations and arrests. Fasold

responded that he believed his job was primarily that of a

supervisor and that he was unaware that generating

investigations and arrests were major parts of his responsibility.

He further questioned Bason about why he had waited until May

to approach him about this issue. Fasold maintains that Bason

did not have a specific response to this query, but told him that

he wanted him to work more overtime hours and noted several

instances when Fasold was unavailable for overtime.3

During his deposition, Fasold recounted that Detective

Anthony Spagnoletti, who occupied an office near to Fasold’s,

overheard the May 2001 conversation between Bason and

Fasold. Spagnoletti then told Fasold: “[I]sn’t it obvious to you

that the people at the top do not want you here[?] . . . Bason is

their hatchet man, and, you know, they gave you to him, and they

just want you out of here.” App. at 106-07.

Nonetheless, after his May 2001 meeting with Bason,

Fasold worked with several prosecutors and police officers in an

effort to generate investigations, cases, and arrests. Indeed, at

his later deposition, Bason admitted that he noticed a “marked

improvement” in Fasold’s work performance after their May

2001 meeting. App. at 606. Bason also testified that he could

not recall any instances where Fasold had refused any request to

work overtime after the May 2001 meeting.

On December 14, 2001, Fasold was assigned to assist

state and local authorities with the controlled delivery of a large

box of marijuana that was being transported by law-enforcement

3

During his deposition, Bason admitted that, although he

had documented the instances when Fasold had been unwilling to

work overtime, he had never previously documented any other

detective’s refusal to work extra hours.

4

authorities to a warehouse in Cheltenham Township,

Pennsylvania where it was to be picked-up by a suspected

narcotics dealer. Fasold testified at his deposition that while he

was en route to the warehouse in Cheltenham he informed Bason

by telephone that he might need to leave the scene early in order

to tend to a family situation.

That afternoon, the delivery, pick-up, and arrest occurred

as planned. Fasold maintains that sometime after the suspect

had been arrested he called Bason to inform him of the events

and to tell him that he was leaving. Fasold testified that Bason

did not ask him for any details of the arrest, question him in

regard to his leaving early, or otherwise complain about Fasold’s

decision to leave.4 Bason, on the other hand, remembers

Fasold’s phone call but testified that he did in fact question

Fasold about the arrest and took issue with his decision to leave

the scene. Specifically, because Fasold was unable to tell him

what type of firearm the suspect had possessed and what was

contained in the packages found in the suspect’s car, Bason

concluded that Fasold had left the site while the investigation

was still in its incipient stages. Moreover, Bason explained that

the arrest was supposed to be a “learning experience” for the

Cheltenham police as they had not previously participated in

controlled package deliveries, and Fasold was supposed to lead

them through the process. App. at 618. Bason testified that he

doubted Fasold’s thoroughness because after the suspect was

arraigned and released, he was able to empty three safe deposit

boxes that might have been located and seized by the officers if

an extensive inventory had been conducted at the time of the

arrest.

4

Fasold also testified to his belief that the situation was

under control because also present at the arrest scene were

detectives from the Philadelphia Police Department, several

officers from the Pennsylvania State Police, as well several local

officers from Cheltenham. Furthermore, Fasold made himself

available to these officers by cell phone; indeed, he did receive

several phone calls from these officials regarding procedure.

5

On December 28, 2001, Bason summoned Fasold to his

office and provided him with his annual performance review.

According to Fasold, this was the first negative annual

performance evaluation he had received in his fifteen-plus years

with the District Attorney’s Office. Fasold also contends that

during the meeting Bason informed him for the first time of his

belief that he had left the December 14, 2001 Cheltenham arrest

too early and without his knowledge or consent.

On January 3, 2002, Fasold was called to a meeting with

Vance, Justice, and Bason. At that meeting, he was asked to

resign voluntarily. The supervisors cited Fasold’s unsatisfactory

arrest record in the Narcotics Unit, his refusal to work overtime,

and his early departure from the December 14, 2001 Cheltenham

arrest as grounds for the proposed resignation. Fasold refused to

resign; consequently, his supervisors suspended him with pay

until further notice.

Several days later, on January 7, 2002, District Attorney

Castor terminated Fasold’s employment. Less than a week

thereafter, the District Attorney filled the vacancy with Detective

Christopher Kuklentz, who was then thirty-three years old.

Following his termination, Fasold followed the

Montgomery County Grievance Procedure and submitted a

Grievance Form. This led to a Level I hearing on April 17,

2002; at the end of this hearing Fasold’s grievance was denied.

Thereafter, Fasold filed age-discrimination claims with the

Federal Equal Employment Opportunity Commission (“EEOC”)

and the Pennsylvania Human Relations Commission (“PHRC”).

On August 20, 2002, Castor, pursuant to the Grievance

Procedure, held a Level II hearing and met with, inter alia,

Fasold, Vance, and Justice for the purpose of reconsidering the

issue of Fasold’s termination. By way of a letter dated

September 11, 2002, Castor denied Fasold’s grievance and

upheld the termination. Notably, Castor’s September 11 letter

specifically mentioned the pending administrative proceedings

charging age discrimination and called those allegations

6

“preposterous.” App. at 530.5

After receiving a right-to-sue letter from the EEOC,

Fasold instituted this lawsuit. His complaint contains allegations

under both the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania

Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq.

The complaint asserts that Defendants discriminated against him

on account of his age. It further avers that, in denying his

grievance after his filing of an administrative action, Castor had

engaged in unlawful retaliation.

After discovery was completed, the District Court granted

Defendants’ motion for summary judgment. The District Court

applied the framework established by the United States Supreme

Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and found that Fasold had raised a prima facie case of

age discrimination. The Court held, however, that Fasold had

failed to present sufficient evidence to show that the Defendants’

proffered legitimate, nondiscriminatory reasons for the firing

were pretextual. As to the retaliation claims, the District Court

ruled that Fasold had failed to establish a prima facie case of

retaliation; specifically, the District Court found that Fasold had

failed to establish a “causal link” between his institution of

agency proceedings and the denial of his grievance. App. at 8.

This timely appeal followed.

II.

We review the District Court’s grant of summary

judgment de novo, applying the same standard as did the District

Court. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co.,

5

Castor later testified respecting Fasold’s age-

discrimination claim: “I was irritated that such an allegation would

be made when I knew as a fact that it was totally ridiculous, and I

think that anyone who would make such an allegation, especially

one under oath, is a person whose credibility is dramatically

compromised.” App. at 578.

7

293 F.3d 120, 125 (3d Cir. 2002). Summary judgment is

appropriate where there are no genuine issues as to any material

fact and the moving party is entitled to judgment as a matter of

law. See Fed. R. Civ. P. 56. Summary judgment, however, must

not be granted where there is a genuine dispute about a material

fact, “that is, if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); see also Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III.

To prevail on an intentional age discrimination claim

under either the ADEA 6 or the “analogous provision” of the

PHRA,7 Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142

F.3d 639, 644 n.5 (3d Cir. 1998), a plaintiff must show that his

or her age “‘actually motivated’” or “‘had a determinative

influence on’” the employer’s adverse employment decision.

6

The ADEA states, inter alia, that it is unlawful for an

employer “to fail or refuse to hire or 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. § 623(a)(1).

7

In pertinent part, the PHRA states:

It shall be an unlawful discriminatory practice . . .

[f]or any employer because of the . . . age . . . of any

individual . . . to refuse to hire or employ or contract

with, or to bar or to discharge from employment such

individual . . . or to otherwise discriminate against

such individual . . . with respect to compensation,

hire, tenure, terms, conditions or privileges of

employment or contract, if the individual . . . is the

best able and most competent to perform the services

required.

43 Pa. Cons. Stat. § 955(a).

8

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141

(2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610

(1993)).8 A plaintiff can meet this burden (1) by presenting

direct evidence of discrimination, see Price Waterhouse v.

Hopkins, 490 U.S. 228 (1989), or (2) by presenting indirect

evidence of discrimination that satisfies the familiar three-step

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See generally Fakete v. Aetna, Inc., 308 F.3d 335, 337-

38 (3d Cir. 2002); Keller v. Orix Credit Alliance, Inc., 130 F.3d

1101 (3d Cir. 1997) (en banc). As mentioned above, Fasold’s

age discrimination claims proceeded under the McDonnell

Douglas framework.9

Under the McDonnell Douglas paradigm, an employee

must first establish a prima facie case of discrimination, after

which the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its adverse employment decision.

See Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 n.11 (3d

Cir. 2004); Shellenberger v. Summit Bancorp, Inc., 318 F.3d

183, 187 (3d Cir. 2003). If the employer articulates one or more

such reasons, the aggrieved employee must then proffer evidence

that is sufficient to allow a reasonable finder of fact to find by a

preponderance of the evidence that the employer’s proffered

8

This court has stated “that the PHRA is to be interpreted

as identical to federal anti-discrimination laws except where there

is something specifically different in its language requiring that it

be treated differently.” Fogleman v. Mercy Hosp., Inc., 283 F.3d

561, 567 (3d Cir. 2002) (citing Dici v. Pennsylvania, 91 F.3d 542,

552 (3d Cir. 1996)). The PHRA provisions here at issue contain no

such language; therefore, we will interpret the implicated

provisions of the ADEA and PHRA as applying identically in this

case and as being governed by the same set of decisional law.

Fogleman, 283 F.3d at 567.

9

Recently, the Supreme Court held that disparate impact

liability is cognizable under the ADEA. Smith v. City of Jackson,

__ U.S. __, 125 S. Ct. 1536 (2005). Such a theory, however, is not

at issue in this case; rather, Fasold alleges that Defendants engaged

in intentional discrimination.

9

reasons are false or pretextual. Sarullo v. United States Postal

Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam). It is

important to note that although “the burden of production may

shift” during the McDonnell Douglas inquiry, the “‘ultimate

burden of persuading the trier of fact that the [employer]

intentionally discriminated against the [employee] remains at all

times with the [employee].’” Williams v. Phila. Hous. Auth.

Police Dep’t, 380 F.3d 751, 759 n.3 (3d Cir. 2004) (quoting Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

The District Court held, and Defendants do not dispute,

that Fasold established a prima facie case of age discrimination.

He presented evidence that he (1) was over forty years old at the

time of the adverse employment decision; (2) is qualified for the

position in question; (3) suffered from an adverse employment

decision; and (4) that his employer replaced him with someone

sufficiently younger to permit a reasonable inference of age

discrimination. See generally Potence v. Hazleton Area Sch.

Dist., 357 F.3d 366, 370 (3d Cir. 2004); Anderson v. Consol.

Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002).10

In turn, Defendants proffered evidence to support several

facially legitimate, nondiscriminatory reasons for the firing.

Specifically, Defendants maintained that Fasold had generated

insufficient cases and arrests; was unwilling to work necessary

overtime hours; had abandoned the December 14, 2001

Cheltenham arrest and had otherwise abdicated and shirked his

duties with respect to that event; and, on at least two occasions,

had failed to submit proper leave forms.

10

There is no hard-and-fast rule covering what a plaintiff

must show in order to establish the McDonnell Douglas prima facie

showing. Rather, “the precise elements of a plaintiff’s prima facie

case may vary with the particular circumstances.” Waldron v. SL

Indus., Inc., 56 F.3d 491, 494 n.3 (3d Cir.1995); see also Geraci v.

Moody-Tottrup Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996) (“The

elements of th[e] prima facie case . . . must not be applied

woodenly, but must rather be tailored flexibly to fit the

circumstances of each type of illegal discrimination.”).

10

Therefore, this case, like many ADEA actions, turns on

the final step of the McDonnell Douglas framework: whether

Fasold presented evidence sufficient to allow a reasonable finder

of fact to find by a preponderance of the evidence that

Defendants’ proffered reasons are pretextual.

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

court, in addressing the McDonnell Douglas requirements,

stated:

[A] plaintiff who has made out a prima facie case

may defeat a motion for summary judgment by

either (i) discrediting the proffered reasons, either

circumstantially or directly, or (ii) adducing

evidence, whether circumstantial or direct, that

discrimination was more likely than not a

motivating or determinative cause of the adverse

employment action.

32 F.3d at 764.11 In other words, if the aggrieved employee can

raise evidence sufficient “to discredit the [employer’s] proffered

reasons . . . the [employee] need not also come forward with

additional evidence of discrimination beyond his . . . prima facie

case” in order to survive summary judgment. Id.; see also

Reeves, 530 U.S. at 148 (“[A] plaintiff’s prima facie case,

combined with sufficient evidence to find that the employer’s

asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated.”);

Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,

1067 (3d Cir. 1996) (en banc) (“[A] plaintiff may survive

summary judgment . . . if the plaintiff produced sufficient

evidence to raise a genuine issue of fact as to whether the

11

However, the Fuentes court further noted that in order

“[t]o 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.” 32 F.3d at 765.

11

employer’s proffered reasons were not its true reasons for the

challenged employment action.”). After reviewing the record,

we conclude that Fasold has presented evidence from which a

reasonable factfinder could choose to disbelieve Defendants’

proffered legitimate, nondiscriminatory reasons.

First, although Defendants contend that they fired Fasold

at least in part because he had generated insufficient numbers of

arrests and investigations since rejoining the Narcotics Unit,

Bason–Fasold’s supervisor in the Narcotics Unit–testified that

Fasold’s performance after their May 2001 meeting was

“making [him] happy.” App. at 628. He further testified that

although Fasold’s performance after the May 2001 meeting was

“still lagging” somewhat behind other detectives, he was more-

or-less satisfied with Fasold’s ability to generate cases and

arrests. App. at 629. In fact, he noted a “marked improvement”

in Fasold’s performance after the May meeting. App. at 606.

The evidence that Fasold’s direct supervisor was basically

satisfied with the number of arrests and investigations generated

by Fasold tends to undermine the validity of Defendants’

contention that they fired Fasold because he generated

insufficient arrests and investigations. A reasonable factfinder

could conclude that Defendants’ assertion that they fired Fasold

because of his insufficient levels of arrests and investigations is

an averment “unworthy of credence.” Fuentes, 32 F.3d at 765.

A similar outcome obtains with respect to their assertion

that they fired Fasold because he was unwilling to work

overtime. During his deposition, Bason conceded that detectives

in his Unit routinely declined overtime shifts; he further

conceded that, apart from Fasold, his office had never

documented such refusals let alone reprimanded detectives for

refusing overtime. More important, Bason testified that he could

not recall any occasion after his May 2001 meeting with Fasold

where Fasold had refused to work overtime. The fact that Bason

(or for that matter any other of the Defendants) could not recall

any instances wherein Fasold refused overtime after May 2001 is

particularly telling considering that Fasold was not fired until

January 2002. Thus, a reasonable factfinder could choose to

discredit the Defendants’ assertion that they fired Fasold, at least

12

in part, due to his refusal to work overtime.

Although Defendants argue that they terminated Fasold

due in large part to his behavior during the December 14, 2001,

Cheltenham controlled narcotics delivery and arrest, the

circumstances surrounding that occurrence are rife with disputed

issues of material fact. Specifically, material disputes of fact

exist respecting whether Fasold had received Bason’s pre-event

approval to leave the scene early, the content of the later

conversation wherein Fasold informed Bason that he was leaving

the scene early, and whether Bason objected when Fasold told

him that he was leaving the scene early. If these disputes of fact

are resolved in Fasold’s favor (a permissible outcome on the

state of the record), a reasonable factfinder could conclude that

Defendants’ assertion that they fired Fasold because of his

December 14, 2001 actions at Cheltenham is merely a post hoc

fabrication created to provide cover for an unlawful firing.

Finally, we conclude that Fasold raised sufficient

evidence to refute Defendants’ assertion that his firing was based

in part on his failure to submit proper leave forms. Specifically,

Fasold has presented evidence tending to show that, in the past,

when detectives with the District Attorney’s Office neglected to

submit the proper leave forms, their superiors did not

reprimand–let alone fire–them, but simply reminded the errant

detectives to fill out and submit the requisite forms.

We disagree with our dissenting colleague’s view of the

applicable law and the facts on record. Judge Aldisert states

that, under the majority’s view, a plaintiff may go to trial

“without any affirmative or direct evidence of discrimination

whatsoever.” Dissent op. at 2-3. That is not only the majority’s

view; it is also the view of the Supreme Court of the United

States. In Reeves, the Court rejected the view of those circuits

that had granted summary judgment for the employer on the

ground that the terminated employee had failed to prove more

than employer pretext (the “pretext plus” cases). Citing its prior

decision in St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993), the Court reaffirmed its holding that the factfinder’s

disbelief of the employer’s explanation plus proof of the

13

elements of the prima facie case may be enough for the

factfinder to infer the ultimate fact of discrimination. Reeves,

530 U.S. at 146-47. No affirmative or direct evidence of

discrimination is required, a principle the dissent purportedly

accepts.

Defendants proffered four reasons for Fasold’s

termination. We have set forth above Fasold’s evidence from

which the jury could find pretextual the Defendants’ proffered

explanations that Fasold was terminated because he generated

insufficient numbers of arrests and investigations, was unwilling

to work overtime, and failed to submit proper leave forms.

Although the dissent essentially skips over these proffered

reasons, we note that the jury’s disbelief of these reasons would

be enough for the jury to discredit the Defendants’ explanation.

Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332-34 (3d

Cir. 1995).

Instead, the dissent focuses on what it views as the central

reason for Fasold’s termination, his early departure from the

Cheltenham investigation, which was only one of the four

reasons given by Defendants for Fasold’s termination. It is

indisputable that summary judgment cannot be granted to the

employer if there is a genuine issue of material fact. Brewer, 72

F.3d at 329-31. The dissent argues that Fasold has not shown a

disputed issue of material fact, merely a disputed interpretation.

With respect, that is not what the record shows.

As we noted earlier, Fasold testified that he had advised

Defendant Bason, his supervisor, that he might need to leave

early, notified Bason when he was about to leave, and received

Bason’s approval. Specifically, he testified that Bason replied at

his first notification “ok,” and asked no questions. App. at 131.

After the arrest occurred and he believed that the matter was

under control, he phoned Bason again, this time from the scene,

and apprised him of the situation and told him he was going to

leave. Bason did not object. Bason’s testimony is to the

contrary. He denied that he had initially given Fasold

permission; instead, he testified that he told Fasold during the

second phone call that he believed Fasold had left the scene too

14

early and before the work was completed. App. at 616-18.

It is evident that this dispute, whether Fasold had

permission to leave the scene, is a material issue of fact. A jury

could conclude from the conflicting testimony that Defendants’

reference to Fasold’s actions vis-a-vis the Cheltenham

investigation as the basis for his termination was pretextual.

Moreover, the suggestion that Fasold’s early departure

gave the suspect the opportunity to retrieve the funds from a

hidden safe deposit box to the prejudice of the prosecution is

rebutted by contrary testimony in the record. The dissent fails to

acknowledge Fasold’s assertion that his presence could not have

changed the situation. In the first place, when he left the scene

there were experienced law enforcement officials still present,

including, inter alia, a state trooper with more than six years

experience investigating narcotics crimes, at least two postal

inspectors, a Philadelphia detective who had been specifically

assigned to a joint federal-state narcotics task force, and a

detective and two officers from the Cheltenham police force.

Moreover, it was Friday evening by the time the suspect was

arrested and processed. The safe deposit keys were hidden in a

pocket in a computer bag and were not discovered during the

search of the car. They were found only on the following

Monday during an inventory of the seized items. Fasold claims

there was no way the investigators could have identified the

bank or the branch at which the safe deposit boxes were located

on Friday. It took several days to locate and gain access to the

boxes which were under a corporate name. App. at 502-17.

We do not suggest that a trier of fact would necessarily

accept Fasold’s explanation, but we cannot conclude as a matter

of law that if the jury does credit Fasold it would not also find

that Defendants’ explanation for his termination was

implausible. There is certainly enough on the record to

constitute a material issue of fact between Fasold and

Defendants on this issue.

In summary, Fasold’s prima facie case, combined with the

evidence that is capable of refuting Defendants’ asserted

15

nondiscriminatory reasons, would allow (but certainly not

require)12 a factfinder to determine that Defendants fired Fasold

because of his age. Reeves, 530 U.S. at 148; Sheridan, 100 F.3d

at 1067. Thus, the District Court erred in granting summary

judgment for Defendants on Fasold’s age discrimination claims.

IV.

The District Court also entered summary judgment in

favor of Defendants on Fasold’s retaliation claims. In the

absence of direct evidence of retaliation, retaliation claims under

both the ADEA 13 and the PHRA 14 typically proceed under the

McDonnell Douglas framework. See generally Fogleman v.

Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002); cf.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278-79 (3d Cir.

2000) (analyzing retaliation claim brought under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and

12

Fasold, of course, bears the ultimate burden of persuasion

at trial that he was terminated because of age. See Reeves, 530

U.S. at 143; Williams, 380 F.3d at 759 n.3

13

The anti-retaliation provision of the ADEA provides:

It shall be unlawful for an employer to discriminate

against any of his employees . . . because such

individual . . . has opposed any practice made

unlawful by this section, or because such individual

. . . has made a charge, testified, assisted, or

participated in any manner in an investigation,

proceeding, or litigation under this chapter.

29 U.S.C. § 623(d).

14

The PHRA states in pertinent part that: “It shall be an

unlawful discriminatory practice . . . [f]or any . . . employer to

discriminate in any manner against any individual because . . . such

individual has made a charge, testified or assisted, in any manner,

in any investigation, proceeding or hearing under this act.” 43 Pa.

Cons. Stat. § 955(d).

16

applying McDonnell Douglas framework); Mroczek v.

Bethlehem Steel Corp., 126 F. Supp. 2d 379, 387 (E.D. Pa.

2001) (same).

To establish a prima facie case of proscribed retaliation

under either the ADEA or the PHRA, a plaintiff must show: (1)

that s/he engaged in a protected employee activity; (2) that s/he

was subject to adverse action by the employer either subsequent

to or contemporaneous with the protected activity; and (3) that

there is a causal connection between the protected activity and

the adverse action. Fogleman, 283 F.3d at 567-68. Here, there

is no dispute that Fasold engaged in a protected employee

activity in that he filed a complaint with the EEOC and the

PHRC. Cf. Schmidt v. Montgomery Kone, Inc., 69 F. Supp. 2d

706, 713 (E.D. Pa. 1999) (“Defendant does not contest that filing

an age discrimination charge with the EEOC and PHRC is

protected employee conduct.”). Moreover, Fasold was subject to

an adverse employment decision–the September 11, 2002 denial

of his Level II grievance. The District Court, however, held that

Fasold failed to present any evidence of a “causal link” between

Fasold’s filing of an administrative complaint and the denial of

his grievance and thus had not established a prima facie case of

retaliation.

The record and the applicable law are to the contrary. At

the time Fasold initiated proceedings with the EEOC and the

PHRC, Defendants had already terminated him and refused to

grant him any relief under the Level I grievance procedure.

Thus, the only adverse employment decision to occur after

Fasold’s initiation of administrative action was Castor’s denial

of relief on the Level II grievance proceeding. Referencing this

sequence of events, the District Court stated: “Defendants’

decision not to rehire [Fasold] after his second grievance

proceeding was merely an affirmation of [their] prior decisions

which,” due to their predating of Fasold’s EEOC and PHRC

filing, were obviously not based on his “age discrimination

complaint.” App. at 8. The District Court thus held that the

denial of Fasold’s Level II grievance was merely a reassertion of

the prior decision to terminate him. The Court continued by

stating that even if the Defendants considered Fasold’s pending

17

claims in denying the grievance, the denial of Fasold’s Level II

grievance was not causally connected to Fasold’s filing of the

administrative claim.

We are not persuaded by the District Court’s analysis.

Even when an employer’s underlying employment decision was

not based on an impermissible ground, the employer may not

deny the employee’s resultant grievance because the employee

had sought administrative relief under the federal or state

procedure. Cf. Equal Employment Opportunity Comm’n v. Bd.

of Governors of State Colls. & Univs., 957 F.2d 424, 430 (7th

Cir. 1992) (“The Board may not deny grievance proceedings on

the basis that employees have filed protected ADEA claims.”).

Thus, even if Defendants were justified in firing Fasold and

denying his Level I grievance,15 they would not be free from

liability if they denied Fasold’s Level II grievance because he

had filed an administrative complaint.16

Moreover, stripped of its erroneous underlying premise,

the District Court’s holding that Fasold failed to present

evidence of a causal connection must fall. See generally

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir.

1997) (“The element of causation, which necessarily involves an

inquiry into the motives of an employer, is highly context-

15

As we discussed above in Section III, the legitimacy of

Defendants’ underlying decisions are far from established.

16

We further reject Defendants’ assertion that the denial of

Fasold’s Level II grievance cannot support a retaliation claim

because the Level II proceeding “was a matter of grace and not a

matter of right.” Br. of Appellees at 28. The Supreme Court has

held that the mere fact that an employer has no obligation to

provide a certain benefit does not mean that the employer is free to

administer such a benefit in a discriminatory fashion. Hishon v.

King & Spalding, 467 U.S. 69, 75 (1984). Thus, even if the Level

II grievance proceeding was a matter of grace rather than right,

Defendants are nonetheless not permitted to reject Level II

grievances because of retaliatory animus. See Bd. of Governors of

State Colls. & Univs., 957 F.2d at 430.

18

specific.”). First, there is a “temporal proximity” between

Fasold’s protected act and the challenged employment decision.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.

2000). Fasold filed his administrative claim on June 21, 2002.

Castor denied Fasold’s grievance on September 11, 2002, less

than three months later. We have held that when only a short

period of time separates an aggrieved employee’s protected

conduct and an adverse employment decision, such temporal

proximity may provide an evidentiary basis from which an

inference of retaliation can be drawn. Kachmar, 109 F.3d at

178.

Second, Castor specifically questioned Fasold regarding

his pending age discrimination claims during the August 20,

2002 Level II grievance procedure and specifically mentioned

Fasold’s pending claims in his September 11, 2002 letter

denying the grievance. Moreover, during his deposition, Castor

conceded that Fasold’s administrative complaint had “irritated”

him and caused him to view Fasold as suspect. App. at 578.

Therefore, we cannot discount the possibility that Castor’s

irritation with Fasold’s pending administrative claims influenced

the calculus Castor made in his decision to deny the Level II

grievance.

We conclude that Fasold has shown evidence sufficient to

support an inference by the trier of fact of a causal link between

his filing of an administrative complaint (which is protected

action) and Castor’s denial of Fasold’s Level II grievance.

Consequently, we hold that the District Court erred in ruling that

Fasold failed to establish a prima facie showing of retaliation for

purposes of the ADEA and the PHRA. We will thus reverse the

District Court’s order granting summary judgment on Fasold’s

retaliation claims.

V.

For the reasons set forth, we will reverse the decision of

the District Court and remand for additional proceedings

consistent with this opinion.

19

ALDISERT, Circuit Judge, Dissenting.

With respect, I am unable to agree with my colleagues

and am compelled to dissent.

It is my view that the Majority Opinion fails to respect the

cumulative experience of this Court’s judiciary that defines

requirements of proving pretext. In so doing, it misapplies the

burden-shifting paradigm under which ADEA cases are

analyzed.

Detective Fasold does not dispute the facts proffered by

his employer, the district attorney, as its nondiscriminatory

reasons for the decision to fire him. Fasold merely offers a

different interpretation of these facts. This is not enough to

establish pretext.

Under ruling case law of this Court—by panels and en

banc—merely offering a different explanation for an undisputed

fact is not sufficient to show that the fact was a pretext for

discrimination; a denial of the fact itself is required. See

Stanziale v. Jargowsky, 200 F.3d 101, 106 (3d Cir. 2000)

(upholding summary judgment where the plaintiff attempted to

show pretext by disputing the importance of the difference in

educational qualifications between himself and the person hired

rather than challenging the disparity itself or proving that the

qualifications considered bore no actual relationship to the

employment at issue); Keller v. Orix Credit Alliance, Inc., 130

F.3d 1101, 1110 (3d Cir. 1997) (en banc) (determining that

summary judgment was appropriate notwithstanding the

plaintiff’s contention that his failure to meet or approach his goal

of raising $1.5 billion in financing was due to factors beyond his

control stating that “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.”); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)

(“To discredit the employer’s proffered reason, however, the

plaintiff cannot simply show that the employer’s decision was

wrong or mistaken, since the factual dispute at issue is whether

20

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, incoherences, or contradictions

in the employer’s proffered legitimate reasons for its action that

a reasonable factfinder could rationally find them unworthy of

credence.”) (citations and internal quotations omitted).

The Majority’s analysis of Fasold’s retaliation claim is

also inadequate. In addition to failing because of a lack of proof

of pretext, the retaliation claim should fail because Fasold

suffered no adverse employment action subsequent to his

engaging in protected activity and causation is lacking.

Accordingly, I would affirm.

I.

This Court has a tradition of dismissing discrimination

claims where the facts of an employer’s asserted

nondiscriminatory reasons for an employment decision are

undisputed. Under the Majority’s view, without any affirmative

or direct evidence of discrimination whatsoever, a plaintiff may

get to trial by offering alternative, less damaging, explanations

for his or her actions without in any way disputing the historical

or narrative facts offered by the employer. This approach will

result in an unfortunate waste of judicial resources by

diminishing the ability of district courts to use the tool of

summary judgment in these types of cases. The Supreme Court

shares my concern and also does not wish to “insulate an entire

category of employment discrimination cases from review under

Rule 50 [and, I would argue, the same concern applies to Rule

56]” or “treat discrimination differently from other ultimate

questions of fact.” Reeves v. Sanderson Plumbing Products, Inc.,

530 U.S. 133, 148 (2000) (quoting St Mary’s Honor Center v.

Hicks, 509 U.S. 502, 524 (1993); United States Postal Serv. Bd.

of Governors v. Aikens, 460 U.S. 711 (1983)).

II.

The district attorney asserts that Fasold was fired because

21

of problems with his performance in the job of Narcotics

Detective. He proffered evidence of Fasold’s: (1) failure to

generate his own case load; (2) failure to accept overtime when

called upon; (3) failure to submit required leave forms; (4)

leaving early from an important narcotics investigation before it

was complete; and (5) a general reputation among co-workers

for laziness.

Fasold countered these reasons by arguing that “his

supervisor did not object to his leaving early” from the

Cheltenham investigation, that he “never had a negative

performance review before his transfer to the narcotics unit” and

“that he ultimately rectified his failure to develop narcotics cases

on his own after [the] meeting with [Frank] Bason [Fasold’s

immediate supervisor in the narcotics unit] clarified his job

responsibilities.” Fasold v. County of Montgomery, No. Civ. A.

02-9187, 2004 WL 834699, at *2 (E.D. Pa. Apr. 16, 2004). He

argues also that he did not refuse any overtime requests after his

meeting with Bason and that Bason’s deposition shows that

failure to submit required leave forms is not a large or

uncommon mistake. The majority accepts Fasold’s explanations

as “evidence that is capable of refuting Defendants’ asserted

nondiscriminatory reasons.” Maj. Op. at 16. I disagree.

Instead, I accept the conclusion of the District Court that

Fasold’s evidence “‘falls short of what would be necessary to

show that [the district attorney’s] dissatisfaction with his

performance was so clearly unfounded that it cannot have been

sincere.’” Fasold, 2004 WL 834699, at *2 (citing Keller, 130

F.3d at 1110).

Evidence that Fasold improved his arrest record and his

responsiveness to overtime requests after being reprimanded by

Bason does not contradict Bason’s testimony that, although

Fasold had shown improvement, “the overall quality of work

was not on par” with the other detectives.

Evidence that failure to submit required leave forms was

common and not normally dealt with severely does not prevent

Appellees from considering such failures in light of what they

22

perceive as a lazy, slipshod attitude.

Evidence of previous positive performance reviews does

not prevent Appellees from considering the opinions of those

who have expressed a negative view of Fasold’s work. See

Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,

528 (3d Cir. 1992) (“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.”).

It is conceded that the most important reason for the

decision to terminate Fasold was his work on the Cheltenham

investigation. And like Fasold’s attempts to rebut the other

proffered nondiscriminatory reasons, his attempt here fails to

dispute the basic facts. The majority suggests three “disputed

issues of material fact:”

[M]aterial disputes of fact exist respecting whether

Fasold had received Bason’s pre-event approval to

leave the scene early, the content of the later

conversation wherein Fasold informed Bason that

he was leaving the scene early, and whether Bason

objected when Fasold told him that he was leaving

the scene early.

Maj. Op. at 15-16. Simply stated these disputes are not “material

facts.” What is material is that Fasold left the investigation

before performing his duties and that he did not have specific

permission to leave before his work of inspecting and

inventorying items seized during the arrest was done. This

dereliction of duty standing alone is a sufficient

nondiscriminatory reason for terminating Fasold’s employment.

The fault was not leaving early, as the Majority

characterized the employer’s nondiscriminatory reason; it was

failure to do a proper job before he left. And to this there was no

rebuttal, nor can there be.

23

III.

The Majority explains what Fuentes, Sheridan v. E.I.

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

banc), and Reeves make clear: that a plaintiff can survive

summary judgment merely by showing that the employer’s

proffered nondiscriminatory reasons are pretextual and does not

need additional affirmative evidence of discrimination. I do not

dispute that this is the law.

My problem is with the Majority’s subsequent conclusion

that “Fasold has presented evidence from which a reasonable

factfinder could choose to disbelieve Defendants’ proffered

legitimate, nondiscriminatory reasons.” Maj. Op. at 14. It is the

analysis that supports this conclusion that is unsupported by our

cases because it allows the plaintiff to show pretext by merely

offering a different explanation of the employer’s proffered

nondiscriminatory reasons without actually disputing the central

facts put forward by the employer. See Stanziale, 200 F.3d at

106; Keller, 130 F.3d at 1110; Fuentes, 32 F.3d at 765.

Our opinion in Sheridan is not to the contrary. There, the

plaintiff succeeded in disputing the facts proffered by her

employer. She presented evidence, contrary to her employer’s

assertions, that she did not give out free drinks on the day in

question and that witness testimony about her alleged violations

of company policy were not credible. Sheridan, 100 F.3d at

1074-1075. She also presented affirmative evidence of sex

discrimination by testifying that, after she had complained about

sex discrimination in the decision not to consider her for the

position of manager of the hotel restaurants, Amblard (her

supervisor) told her that he “planned to watch her ‘like a dog’

and ‘like a hawk.’” Id. at 1074. She also testified that Amblard

would completely ignore her in the presence of other male

supervisors and speak only to them. Id.

Neither is Reeves to the contrary. There again the dispute

was over the facts themselves. The employer claimed to have

fired Reeves “due to his failure to maintain accurate attendance

24

records,” whereas Reeves “introduc[ed] evidence that he had

accurately recorded the attendance and hours of the employees he

supervised.” Reeves, 530 U.S. at 133. In Reeves there also was

abundant and uncontroverted evidence of age discrimination. In

addition to rebutting the employer’s stated reasons for

discharging plaintiff: “Petitioner testified that [a superior] had

told him that he ‘was so old [he] must have come over on the

Mayflower’ and, on one occasion when petitioner was having

difficulty starting a machine, that he ‘was too damn old to do

[his] job.’” Id. at 151. There is absolutely no comparable direct

evidence here.

In these cases we should not be concerned with whether

the impression Fasold’s superiors formed of him was warranted

by the evidence, but whether that evidence was merely a sham.

See Keller, 130 F.3d at 1109 (“[H]e 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.”). In Fuentes, we explained this tension as the difference

between where an employer is shown to be “wrong or mistaken”

and where the employer’s story is “weak[], implausible[],

inconsistent[], incoherent[], or contradictory[].” 32 F.3d at 765.

Where, as here, the basic facts of the employer’s proffered

legitimate reasons for the employment decision are undisputed,

but the interpretation of those facts are disputed, the employer is

likely to be, at most, wrong or mistaken. See Keller, 130 F.3d at

1110.

Here, there is no dispute, for example, that Fasold had

refused to work overtime, or that he had failed to file required

leave forms, or that his superior, Bason, had assessed his work as

not up to par. With respect to the most important factor, the

performance on the Cheltenham investigation, there is also no

dispute. Fasold left the investigation without completing his

work and without permission to leave before completing his

work. Whether or not Fasold had permission to leave early is

irrelevant. No factfinder could reasonably conclude that Fasold’s

performance in the investigation was so beyond reproach that his

employer’s attempt to use it as a basis for termination was

25

implausible, inconsistent, incoherent or contradictory. See

Fuentes, 32 F.3d at 765.

It is the prerogative of the employer, not this Court, to

determine what constitutes a breach of protocol and the

consequences that follow. See Simpson v. Kay Jewelers, Div. of

Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (“Whether sales

quotas or evaluation scores are a more appropriate measure of a

manager’s performance is not for the court (or factfinder) to

decide.”); Keller, 130 F.3d at 1109 (“The question is not whether

the employer made the best or even a sound business decision; it

is whether the real reason is discrimination.”); Fuentes, 32 F.3d

at 765 (“[T]he 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.”);

Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir.

1988) (refusing to second guess an employer’s determination that

the plaintiff had done a poor job in completing a specific task

even where the employee/plaintiff was never warned that he was

failing to meet company expectations regarding the task and

stating that “our inquiry must concern pretext, and is not an

independent assessment of how we might evaluate and treat a

loyal employee”); Logue v. Int’l Rehab. Assocs., Inc., 837 F.2d

150, 155 n. 5 (3d Cir. 1988) (“[O]ur task is not to assess the

overall fairness of [the] . . . employer’s actions.”).

In an appropriate discrimination case, the trier of fact may

determine that what the employer claims was a breach was not

actually a breach or did not actually take place and on that basis

conclude that the employer’s proffered reason for an employment

decision was pretextual. See Sheridan, 100 F.3d at 1074-1075.

But here, it is undisputed that Fasold left the scene before the job

was complete and there is no allegation that early departure from

an arrest scene without completing standard police procedures is

an accepted practice. Regardless of any generic approval of early

departure, the DA’s office could reasonably conclude that

leaving the investigation before seized evidence was inspected

and inventoried without specific approval was irresponsible. We

should not be in the business of second guessing these types of

26

decisions. See Keller, 130 F.3d at 1109; Fuentes, 32 F.3d at 765;

Healy, 860 F.2d at 1216.

I would affirm the district court’s grant of summary

judgment because Fasold has not produced the type of evidence

of pretext we require to meet his burden of going forward under

McDonnell Douglas.

IV.

I disagree with the Majority’s analysis of Fasold’s

retaliation claims for the same reasons explained above. A

retaliation claim follows the same McDonnell Douglas

methodology as a basic age discrimination claim; after the

plaintiff makes out a prima facie case, the employer must assert

nondiscriminatory reasons for the action which the plaintiff must

then show to be pretextual. Here, the nondiscriminatory reasons

put forward for refusal to reinstate Fasold at a second grievance

hearing are identical to the reasons for firing Fasold in the first

place. As I have already explained, I view the Fasold’s evidence

of pretext as insufficient.

As to the retaliation claims, however, I dissent for the

additional reason that, like the District Court, I would hold that

Fasold failed to make out a prima facie case of retaliation. The

Majority has stated the test:

To establish a prima facie case of proscribed

retaliation under either the ADEA or the PHRA, a

plaintiff must show: (1) that s/he engaged in a

protected employee activity; (2) that s/he was

subject to adverse action by the employer either

subsequent to or contemporaneous with the

protected activity; and (3) that there is a causal

connection between the protected activity and the

adverse action.

Maj. Op. at 17-18 (citing Fogleman v. Mercy Hosp., Inc., 283

F.3d 561, 567-568 (3d Cir. 2002)). More recently, we have

clarified part two of the test as follows: “[T]he employer took an

27

adverse employment action after or contemporaneous with the

employee’s protected activity.” Glanzman v. Metropolitan

Management Corp., 391 F.3d 506, 515-516 (2004) (citing Farrell

v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000)

(emphasis added)). The sine qua non of retaliation is that adverse

employment action take place. In order for adverse employment

action to take place it must take place after or contemporaneous

with protected activity engaged in by an employee. Glanzman,

391 F.3d at 516. The essence of protected activity is that it take

place prior to the adverse employment action.

The DA’s Office argues that denial of a second request

for reconsideration of his firing was not an adverse employment

action because Fasold was no longer an employee when he

engaged in the protected activity of filing a complaint with the

EEOC and the PHRC. I am inclined to agree. The decision to

terminate Fasold’s employment had already been made and was

clearly approved by District Attorney Bruce Castor. The second

grievance proceeding (the first had denied Fasold’s request for

reconsideration before the EEOC claim was filed) was merely a

reaffirmation of a decision that had already been made and

upheld in the first grievance proceeding.

The Majority supports its conclusion that an adverse result

in a second post-termination grievance proceeding constitutes

adverse employment action by citing Equal Employment

Opportunity Commission v. Board of Governors of State

Colleges & Universitys, 957 F.2d 424 (7th Cir. 1992). But this

case stands for the proposition that an employer may not have a

policy which makes the filing of an EEOC claim a bar to

participation in the company’s own grievance arbitration

program. Id. at 430. There is no indication in the opinion that the

plaintiffs seeking to pursue both federal and internal company

remedies had already had their employment terminated.

In Glanzman, we held that “once her employment was

terminated it was not possible for her to suffer adverse

employment action” and therefore she did not make out a prima

facie case of retaliation under the ADEA. 391 F.3d at 516. To be

sure, in this case we have the added fact of the employer’s post-

28

protected activity denial of a second request for reconsideration.

I would hold that this denial was not an adverse employment

action because Fasold was no longer an employee and the

decision was a mere reaffirmation of one that had already been

made. And I note that the Majority’s ruling does no favors to the

working man or woman. Subjecting adverse rulings in optional

post-termination internal grievance procedures to the retaliation

provision of the ADEA creates a legal climate where employers

are likely to choose not to make such procedures available.

Further, I am in agreement with the District Court that

causation is lacking. For the majority, it is enough that Fasold’s

second request for reconsideration was denied less than three

months after he filed his complaint with the EEOC and that

District Attorney Bruce Castor indicated his irritation with

Fasold’s having filed a discrimination claim. Maj. Op. at 20. The

Majority points out that analysis of causation is “highly context-

specific,” Maj. Op. at 20 (citing Kachmar v. SunGard Data Sys.,

Inc., 109 F.3d 173, 178 (3d Cir. 1997)), and I find this analysis of

causation totally inappropriate in the context of a second post-

termination request for reconsideration.

It is quite a stretch to conclude that a denial of a second

request for reconsideration was caused by anything outside of the

factors that had already gone into the initial decision and

evidence presented at the first grievance proceeding. This

conclusion woefully overestimates the likelihood of Fasold being

reinstated as a result of his second request for reconsideration.

*****

For the reasons heretofore set forth, I would affirm the

judgment of the District Court. Accordingly, I respectfully

dissent.

29