# William Joseph Healy, Jr. v. New York Life Insurance Company > Court of Appeals for the Third Circuit · November 7, 1988 · 860 F.2d 1209 URL: https://www.frixlaw.com/law-library/cases/9478325 ## Case - **Full name:** William Joseph HEALY, Jr., Appellant, v. NEW YORK LIFE INSURANCE COMPANY, Appellee - **Court:** Court of Appeals for the Third Circuit - **Decided:** November 7, 1988 - **Citations:** 860 F.2d 1209; 48 Empl. Prac. Dec. (CCH) 38,466; 48 Fair Empl. Prac. Cas. (BNA) 459; 1988 U.S. App. LEXIS 14854; 1988 WL 117009 - **Precedential status:** Published - **Opinion:** Dissent by Shapiro - **Judges:** Higginbotham, Becker, Shapiro - **Cited by:** 178 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9478325 ## How later opinions describe it (automated extraction) - explaining that a plaintiff “must not only introduce evidence from which a reasonable person could infer that he is qualified” but “also must introduce evidence that casts doubt on his employer’s contention that there was a legitimate business justification for letting him go” - recognizing that an employer “has the right to make business judgments on em ployee status, particularly where the decision involves subjective factors.. .that the [employer] deems essential to high-level executive positions.” - noting that “discrepancies between Defendant’s position statements to the EEOC and later explanations are not per se evidence of pretext” - affirming, in the RIF context, that the articulated business reasons did not serve as a pretext because the defendant demonstrated that competitive pressures required consolidating positions, the statistical evidence showed that the RIF did not disproportionately impact older … ## Opinion text SHAPIRO, District Judge, dissenting. Plaintiff, William Joseph Healy, filed a complaint seeking relief from alleged age discrimination by his former employer in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq.; he asserted his right to the trial by jury granted by Congress in making age discrimination actionable. 29 U.S.C. 626(c)(2). Upon review of the pleadings, discovery and supplemental affidavits, the district judge determined that although questions of fact precluded a finding that plaintiff had not made a prima facie ease, defendant had offered evidence that plaintiff’s termination was based on factors other than age and plaintiff had not met his burden of producing either direct evidence of discriminatory intent or evidence from which an inference of discrimination could be drawn. In reaching this conclusion the district judge’s opinion discussed not whether sufficient evidence was produced from which a reasonable jury might infer age discrimination, Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200 (3d Cir.1987), but whether the evidence had “substance.” That is, the grant of summary judgment relied on determinations of the credibility of affiants in weighing the evidence. Because I believe that a grant of summary judgment for defendant is inconsistent with a recent in banc decision of the Court of Appeals, and usurps the role of the jury in age discrimination cases, I respectfully dissent from the majority opinion. It is important in reviewing the record below to remember that this is an age discrimination case, not a case alleging discrimination based on race or sex which is tried to a court not a jury under Title VII, 42 U.S.C. § 2000e et seq. The ADEA expressly and deliberately created a cause of action to be tried to a jury so that issues of age discrimination would not be disposed of by federal judges. When Senator Kennedy introduced the amendment to the ADEA which provided for jury trials, he stated that it was an important addition to the legislation because, juries are more likely to be open to the issues which have been raised by the plaintiffs. Sometimes, a judge may be slightly callous, perhaps because he himself is protected by life tenure, or because he is somewhat removed from the usual employer-employee relationship. The Jury may be more neutral in such circumstances. *1221 Cong.Rec. S34318 (October 19, 1977), reprinted in Legislative History of the Age Discrimination in Employment Act, at 505 (1981). Following his termination, plaintiff filed this action alleging a violation of the ADEA. Defendant responded that it was protected by an exception to the ADEA (29 U.S.C. 623(f)(1)) as the termination of plaintiff was for a “reasonable factor other than age.” At the close of discovery, defendant moved for summary judgment, on the grounds that (1) plaintiff had not made out a prima facie case of age discrimination and (2) plaintiff could offer no evidence to rebut defendant’s assertion that his discharge was for reasonable factors other than age or that this explanation for the discharge was pretextual. The district court held that questions of fact precluded summary judgment on the ground that plaintiff had not made out a prima facie case; that is, plaintiff had met the burden of showing the four factors required: ... ‘(1) he belongs to a protected class; (2) he was qualified for the position; (3) he was dismissed despite being qualified; and (4) he ultimately was replaced by a person sufficiently younger to permit an inference of age discrimination.’ Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 897 (3d Cir.1987). Drawing inferences from the record favorably to Healy, questions of fact preclude summary judgment on this point. Letter-Opinion and Order, Lechner, J., June 25, 1987, p. 12 (A195), n. 1. Because defendant articulated evidence of economic necessity for a reduction in force and evidence that plaintiff was less qualified than his replacement, plaintiff concededly was required to offer evidence from which a jury might reasonably infer that the reasons given for his discharge were pretextual and that age was a determinative factor in his termination. However, the trial judge credited the affidavits submitted by defendant in support of its position, determined that the plaintiff offered no evidence of “substance” and had come forward with no “facts to demonstrate age was a factor” in his termination, and granted summary judgment. But the proper standard does not require the plaintiff to prove his case to the satisfaction of the trial judge in order to present his claims to a jury. Plaintiff meets his burden merely by presenting evidence from which it could reasonably be inferred that he was not dismissed for the reasons articulated by the employer. The jury need only decide whether the employer dismissed [Healy] because of reports from his supervisors____ If not, it is more likely than not that the employer based his decision on an impermissible consideration such as age. Sorba v. Pennsylvania Drilling Co., Inc., 821 F.2d 200, 205 (3d Cir.1987). In Sorba , the Court of Appeals followed its recent in banc decision in Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (in banc). Chipollini stands for the proposition that to avoid summary judgment in favor of defendant in an age discrimination reduction in force case, it is not even necessary for a plaintiff to submit direct evidence of pretext to rebut defendant’s claim of a legitimate reason for the discharge. Plaintiff only has to present evidence sufficient to create the inference that the reasons given for his discharge were pretextual. In other words, plaintiff must submit “evidence of inconsistencies and implausibilities in the employer’s proffered reasons for discharge [that] reasonably could support an inference that employer did not act for non-discriminatory reasons” and not “evidence [that] necessarily leads to that conclusion that the employer did act for discriminatory reasons.” Id. at 900 . If an employee produces enough evidence to support an inference that the reasons given for the discharge were pretextual, the court should not grant the employer’s motion for summary judgment even if it believes a jury would or should find for the defendant. The district court found that Healy established a prima facie case if inferences from the record were drawn favorable to the non-moving party as the law requires. But the court also found that the company *1222 presented “substantial evidence” to support its claim that Healy was not discharged because of his age. Letter-Opinion and Order, Lechner, J. at p. 12 (A195). First, there was affidavit testimony of the non-discriminatory impact of the reduction in force which supposedly showed that “Healy’s termination was not the product of systematic age-based discrimination on the part of the company.” Id. at 13 (A196). Statistical evidence was offered to show that the company-wide percentage of employees over the age of 40 remained essentially the same as a result of the reduction in force. Of course, this data did not include the employees who elected early retirement. Although subject to challenge, this evidence was admissible to show lack of intent to discriminate against Healy because of his age. But Healy is claiming age discrimination against him personally; non-disparate impact is only evidentiary not conclusory. The reasons for lack of reliance on this statistical evidence in support of defendant’s position that it did not use its reduction in force as a pretext for age discrimination are well stated in Section E of the majority opinion. Second, there was affidavit testimony of two superiors, Ubi and Hinrichs, which supposedly showed that the decision to terminate Healy and give his responsibilities to Russell was based on a managerial perception that Russell was more highly qualified to handle post-reduction consolidated responsibilities; this was allegedly supported by documentary evidence (performance evaluations of Healy and Russell before and after litigation was instituted). The signed statements of Hinrichs and Ubl, prepared by them or their company’s attorney after the fact, are inconsistent with contemporaneous evaluations of each employee. The district judge then found Healy submitted no specific facts either to support the allegations of his complaint or to rebut or undermine the evidence presented by the Company in support of its motion. However, Healy could point to the following specific facts which, if credited, establish a genuine issue for trial because a rational trier of fact could find in his favor; see Matsushita Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986): 1. The Company’s 20% reduction in force supposedly in response to competitive pressures was accomplished in part by the offer of early retirement to employees 55 years or older; Healy declined to accept this option. 2. The President’s letter of January 28, 1986, to all agents and employees reported a “good year for new business” and referred to impressive performance not the need for further reductions in force as might be expected. (A78). 3. Healy, age 57, enjoyed a long and successful relationship with New York Life. He was promoted regularly and seemingly routinely. By the time of his discharge, following 23 years with the Company, he had risen from the rank of Agent to that of Marketing Vice President. 4. Plaintiff’s performance evaluations were consistently positive. He had received a favorable job performance evaluation as recently as March 25, 1985. (A62). This 1985 evaluation said, He demonstrates significant people and team-building skills. He takes direction and guidance easily and quickly. He demonstrates a genuine business concern for people. He utilizes good judgment in addressing his responsibilities. Due to the above factors, he has earned the respect and loyalty of his divisional employees. In fact, prior to his discharge, Healy had received only scores of “A Notable Strength” and “Effective Performance”. 5. Healy’s last pre-termination performance review on March 25, 1985, was by John Wm. Zorio; his views are relied on by the Company to establish Healy’s inability to delegate. Under the heading “Opportunities for Improvement,” Zorio stated, “[h]e must delegate more of the work-load and spend more time in staff development.” (A65). But under the heading “Management Skills and Abilities,” his performance in delegating assignments and authority was graded as “Effective Performance.” *1223 While not listed as a “Notable Strength,” neither was it categorized as “Needs Improvement.” That same evaluator noted under “Attainment of Annual Objectives,” that Healy’s performance was characterized by “Excellent Results Achieved in all KRAs (“Key Result Areas”). Zorio then commented, “He has made significant contributions in numerous and varied task force/committee assignments. Healy’s overall performance rating was, “[ejxceeds the level of performance required to fulfill the responsibilities of this position.” 6. In contrast, on August 4, 1986, six months after Healy’s termination, one month after his complaint of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and with no apparent need for evaluation of an “outplaced” employee, Ubl prepared a “Performance Evaluation” listing satisfactory performance in three key result areas with the fourth, “Management by Objective” (“MBO”) “in progress.” For the first time, Healy, a terminated employee, is graded as “needs improvement in three respects, “Planning and Organizing Work,” “Delegating Assignments and Authority,” and “Developing Subordinates” (even though it was the younger subordinate he developed who was supposedly so effective in replacing him). Even this evaluation commented favorably on his good communication skills, knowledge and experience. Then Ubl added, “Bill too zealously guards his “turf” to the extent subordinates feel little opportunity to expand areas of responsibility. Needs to delegate more — take a bigger view of his job. Must be more future oriented — focuses on the here and now— Broaden horizon — must assume more and different responsibilities a more acquisitive view of what needs to be done as part of the job.” (A82). 4 7. Healy stated under oath that his assignment to coordinate the MBO program for the Marketing Department took no more than 10% of his time. Of course, 10% of an employee’s time can be substantial if spent on an important project. But regardless of how a court might evaluate its importance, the limited time or relatively minor role, if magnified by the employer, can also be evidence of pretext. Healy was cross-examined extensively concerning his role in preparing the MBO for 1985-86 at his deposition. The testimony cited by the majority from A125-127 certainly suggests his limited view of his role; moreover, it was a view differing from that articulated for the Company in the defense of this cause of action. The full excerpts from the Healy deposition (A118-125; A128-133) show an understanding of the MBO project that differs from that of the defendant; this sharp conflict in the testimony should be resolved by the trier of fact. Neither the majority nor the trial judge should decide that Healy’s view is inherently incredible. Healy is in no different a position than Chipollini or Sorba in denying under oath these post-litigation complaints of his performance. 8. Healy was never warned he was doing a bad job and he knew he was doing a good job. (A103). Of course, managers are “not compelled to convey dissatisfaction to employees,” but absence of prior complaints about performance is evidence of pretext. Others, including people in marketing, were given indications of termination and told to take the voluntary retirement offer. (A136). Healy was not. 9. Hinrichs cited only the need for reduction in force in Healy’s termination interview. (R106). In Marketing, two vice presidents, Hesse (agent training) and Healy (management training) had reported to Marketing Vice President Walter Ubl who, in turn, reported to Senior Vice President Jerald Hinrichs, the head of the Marketing Department. Hinrichs stated that with Hesse’s opting for early retirement, he had determined to eliminate Healy’s position as *1224 well. The alleged inadequacy in Healy’s performance, like the alleged superiority of his replacement, Paul Russell, was discovered only after this litigation commenced. 10. The April 15, 1985 Performance Review of Paul Russell, who assumed most of Healy’s work responsibilities following his discharge, suggests more reason for concern regarding professional capabilities than Healy’s evaluation that same year. (A71). Russell received a grade of “Needs Improvement” in the area of written communications. In the comment section of the evaluation, Zorio stated that, “[h]e needs improvement in written communication area.” (A73). The position to which Russell was recommended for promotion by Ubl on July 1, 1986 requires “frequent ... written contact” with company personnel, field management and vendors. (A150). It was not until approval of the September 1, 1986 promotion recommendation of Russell that his abilities merited recognition at the Grade 18 level, a Grade level Healy had attained as early as July 1,1984. (A55). Healy does not have to prove he was more qualified than Russell to survive a motion for summary judgment; he need only produce evidence that the company’s supposed judgment at the time of termination that “Russell was more highly qualified to handle the post-reduction consolidated responsibilities” (A198) was pretext. In view of Healy’s good performance in management training and prior experience in agent training, compared to Russell’s lack of dual experience, Healy has succeeded in meeting his burden on this record. 11. Delay in combining the positions of Marketing Vice President for Management Training and Marketing Vice President for Agent Training from February until July, as explained by Hinrichs in his affidavit in support of the summary judgment motion suggests doubts as to his conviction of the ability of Russell at the time of Healy’s termination and reflects on the credibility of the substance of the other averments therein. (A138). 12.Healy did not adequately respond to the statistical evidence proffered by the company, but it was not his burden to do so. Healy alleges disparate treatment not disparate impact. As correctly stated by the majority, the statistics are of relevance to the defense. But whether or not the statistics suggest Hinrichs and Ubl did not terminate Healy because of his age is irrelevant to whether Healy has proffered evidence from which a rational fact-finder could determine that they did. It is not necessary to consider and weigh the evidence offered by the company because that is the proper function of the finder of fact; on this record, there are issues of material fact for resolution by the proper factfinder. Notwithstanding the Company’s proffered explanation that Healy was terminated because of a non-discriminatory reduction in force and his inadequate performance, Healy’s evidence would permit a jury reasonably to find that his age was a determining factor in the decision to terminate him and replace him with a younger employee, and that but for his age he would not have been terminated. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393 (3d Cir.), cert. denied, 469 U.S. 1087 , 105 S.Ct. 592 , 83 L.Ed.2d 702 (1984). Under the ADEA, the ultimate burden remains with the plaintiff to prove that age was a determinative factor in the defendant employer’s decision. See, e.g. Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087 , 105 S.Ct. 592 , 83 L.Ed.2d 702 (1984). The plaintiff need not prove that age was the employer’s sole or exclusive consideration, but must prove that age made a difference in the decision____ [Pjlaintiff’s ultimate burden of persuasion includes the requirement to show that the defendant’s proffered reason is a pretext for discrimination, i.e., that the proffered reason is merely a fabricated justification for discriminatory conduct. Burdine, 450 U.S. at 257, 101 S.Ct. at 1095.... The plaintiff may meet this burden ‘either directly by persuading the court that a discriminatory reason more likely motivated the *1225 employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. ’ Id. at 256, 101 S.Ct. at 1095 (emphasis added). Chipollini, 814 F.2d at 897, 898 . The Supreme Court of the United States has indicated that it is error to require direct evidence of discriminatory intent. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 717 , 103 S.Ct. 1478, 1483 , 75 L.Ed.2d 403 (1983).... This is true in part because age discrimination, like other forms of discrimination, is often subtle____ Thus, by pointing to evidence which calls into question the defendant’s intent, the plaintiff raises an issue of material fact which, if genuine, is sufficient to preclude summary judgment. Chipollini, 814 F.2d at 898, 899 . In the context of the summary judgment motion, however, the court should have considered whether evidence of inconsistencies and implausibilities in the employer’s proffered reasons for discharge reasonably could support an inference that the employer did not act for non-discriminatory reasons, not whether the evidence necessarily leads to that conclusion that the employer did act for discriminatory reasons____ Chipollini, 814 F.2d at 900 (emphasis supplied). The Chipollini case has been quoted from so extensively because this case is distinguishable from it only by the identities of the parties. There the in banc court reversed the district court’s grant of summary judgment because, as in this case, the district court erred in weighing competing inferences itself and in resolving disputed facts. Chipollini was informed at the time that his termination was due to a cutback in expenses; his duties and title were later assumed by a younger man who had been promoted to his assistant on Chi-pollini’s recommendation. This happened to Healy. Chipollini had performed his duties in a satisfactory manner and received pay increases and bonuses every year except the last year. This is essentially the record of Healy. In answer to the litigation, the employer asserted Chipollini was terminated not only because of a reduction in force but because of his deficient attitude regarding certain special projects. This is, in every material matter, the script for Healy’s employer. The plaintiff in Chi-pollini contradicted the defendant’s position on his performance of duties and denied defendant’s description of his responsibilities as an “energy warden” by affidavit; Healy did much the same in regard to management post-litigation complaints about his inadequate performance regarding an MBO assignment. 5 Healy’s assertion that the MBO was only 10% of his duties must be accepted for purposes of this motion. Chipollini merely denied the existence of a medical problem supposedly affecting his work performance by affidavit; he proffered no independent medical evidence. Healy asserted his belief in his fine performance and his experience; this was supported by all his performance evaluations prior to termination and the consequent litigation. It was only six months after termination and the month following Healy’s EEOC complaint that the problems with Healy’s performance were first articulated. In attempting to distinguish Chipol-lini, the majority, at p. 1220, properly accepts all such averments of plaintiff Chipol-lini and all inferences therefrom as “fact.” If the same were done for Healy, the grant of summary judgment for defendant could not be affirmed. As in Chipollini , “[t]he plaintiff challenges the defendant’s post-litigation articulation of its intent and the documentary evidence can be viewed as supporting the *1226 plaintiffs challenge. Consequently, the issue of pretext turns on [defendant’s] credibility and is not appropriate for resolution on a summary judgment motion. The plaintiff is entitled to a jury trial on the merits. See 29 U.S.C. § 626 (c)(2) (1982).” Chipollini, 814 F.2d at 901 . In Sorba , the other summary judgment age discrimination case recently decided by the Court of Appeals, a 54 year old employee was discharged after 27 years of employment. The company claimed that Sor-ba had performed poorly on his last three jobs, that he had padded jobs, accrued unnecessary overtime expenses, caused morale problems and refused to obey direct orders. The district court granted summary judgment for the employer based on a finding that the employer had articulated valid and non-discriminatory reasons for the discharge, and that Sorba’s factual allegations did not present a triable issue of fact. Sorba admitted that his last three jobs were not successes from the perspective of the company, but claimed that the poor results were due to factors beyond his control. Additionally, there was testimony that Sorba did not cause morale problems and that one of his supervisors knew of no instance when he had unnecessarily extended work. Based on this contradictory evidence, the Court of Appeals held that granting summary judgment was reversible error. Similarly, Healy has produced evidence by deposition, documents and affidavits which, if credited by the jury, could support an inference of pretext. The presentation of conflicting evidence means that a jury should be given the opportunity to assess the credibility of the employer with respect to the proffered reasons for the discharge. Instead, the majority analyzes the evidence, makes credibility determinations and decides the case in favor of defendant; summary judgment is not a substitute for trial by jury even in an age discrimination reduction in force case. The majority correctly states, “[t]he difficult issue in the case is whether Healy sufficiently demonstrated that a genuine issue of material fact existed concerning the company’s asserted non-discriminatory reasons for Healy’s discharge.” In deciding this issue, the majority opinion recites matters of record developed through depositions, affidavits and company documents and refers to moving defendant’s self-serving proffers, unchallenged by cross-examination at trial, as “facts.” This is so only if the proper fact-finder was the district judge and/or the appellate panel. Congress expressly intended that age discrimination charges be resolved by juries rather than federal judges; it wanted allegations of age discrimination determined by juries in order to ensure that the rights of plaintiffs would be fully protected. In view of this unequivocably expressed congressional intent, a court should not take age discrimination issues from the jury except in the clearest case. This is not such a case; it is a close case and plaintiff is entitled to have it tried to a jury- Of course, the standard for summary judgment is the same whether a case would have otherwise been tried by a judge or a jury. But that standard as enunciated by the Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986) and Anderson v. Liberty Lobby, 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986) has been met here. In Celotex, the Supreme Court held that summary judgment is appropriate where the non-moving party has not adequately set forth and defended the elements of the prima facie case. Celotex does not require that same level of proof when the non-moving party has made out a prima facie case but must rebut the showing of the defendant. Similarly, Anderson requires only that in evaluating the strength of a prima facie case, the same standard be applied as would ultimately be applied by the jury. This case also governs only the sufficiency of the prima facie case. Neither Celotex nor Anderson gives a judge the authority to assess the strength of evidence or the credibility of witnesses’ affidavits once the prima facie case has been adequately established. *1227 Here the issue is not whether Healy has established a prima facie case; that is conceded. The issue is whether Healy has offered evidence from which a jury might reasonably infer that the reasons for his discharge articulated in response to this prima facie case were pretextual. This is the issue on which the legislative history finds that “juries are more likely to be open.” This is more not less true where a reduction in force or reorganization is utilized to terminate older workers and difficult issues of pretext are presented. Where Congress has expressly found “a jury may be more neutral” than a judge, we should not be concerned that every charge of age discrimination arising out of a reduction in force will require a jury trial. We should be concerned that any corporation with an economic incentive for age discrimination will be able to mask it by arranging for a temporary reduction in force and/or reorganization with the assurance that if a charge of age discrimination is made, it can be tried to a court by self-serving post-litigation affidavits of “fact.” We should be concerned that our decision places a burden on the older victim of discrimination unintended by Congress, the burden to convince a court he or she will prevail before allowing a jury to decide. If, as the majority believes, Healy’s allegations of age discrimination are unfounded and age was not a substantial factor in his termination, a jury should and would decide against him. For the foregoing reasons, I respectfully dissent and would reverse the judgment of the district court and remand for a trial by jury. . The majority opinion views this post-termination evaluation as not substantially different from his previous ones. It adds that Healy submitted no evidence indicating this review was aberrational or in any way pretextual. But in my opinion the lack of need for an evaluation of a terminated employee is itself evidence of pretext; the post-termination evaluation is also inconsistent with itself and in comparison with prior evaluations. Therefore, its very existence is aberrational and pretextual. . While based on personal familiarity with Management by Objective programs rather than facts of record, Healy’s account of his activities in preparing the marketing MBO plan is more consistent with MBO theory and practice than the Ubi and Hinrichs complaints suggest; at the least their statements concerning Healy’s supposed deficiencies in this project could have been tested at trial. The conflict in views of the nature of the project and Healy’s performance creates an issue of fact. Instead, the company's affidavit rather than Healy’s has been accepted in reviewing this motion for summary judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9478325. Public record. Not legal advice.