stating that “an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial”
How later courts described this case
- stating that “an adverse party responding to a properly made and supported summary judgment motion must set forth specific facts showing that there is a genuine issue for trial”
- explaining that “the mere possibility that a factual dispute may exist, without more, is an insufficient basis upon which to justify denial of a motion for summary judgment”
- finding summary judgment proper where defendant’s evidence indicated that ADEA notice was posted and plaintiff’s affidavit stated only that he did not recall seeing one
- granting summary judgment where defendant testified that EEOC notices had been posted and plaintiff merely stated that he did not remember seeing one
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
dissenting.
I cannot agree that Posey’s affidavit fails to state specific facts. It is quite specific as to the regularity of his perusal of the bulletin board and as to his practice of promptly reading new notices. It is also quite specific about what he did not see or recall reading. Its only deficiency, if there is one, is in its failure to make explicit the obvious inference to be drawn from the facts set forth, namely that no ADEA notice was posted. Presumably, if Posey had added the statement “Therefore, the ADEA notice described in the affidavits of Szrom and Herr was not posted” to his affidavit quoted by the majority, the issue of material fact would have been indisputably drawn. The majority is applying a rigid common-law pleading approach to summary judgment practice which seems to me manifestly inconsistent with the spirit of the Federal Rules.
Posey “should be given the benefit of all inferences reasonably deducible from the evidence.” Federal Procedure, L.Ed. § 62:546 (1981); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 , 90 S.Ct. 1598, 1608-09 , 26 L.Ed.2d 142 (1970). Here the majority is simply determining that Szrom *107 and Herr are more credible than Posey. This is a determination which we are not at liberty to make on summary judgment. See Federal Procedure § 62:547. Further discovery might eliminate the issue of fact as to posting of the notice without need for trial. However, I do not believe we are free to take impermissible liberties with these quite conflicting affidavits as a short cut to disposition of this case.
I therefore respectfully dissent.