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"
How later courts described this case
- 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"
- finding that even though the comment “[i]f you are getting too old for this job, maybe you should go hire one or two young bankers” was sufficient to establish an inference of discrimination, it was insufficient to show that discrimination was a determinative cause in plaintiffs termination because the comments were made four or five months prior to the termination and did not directly concern it
- stating that “the relevant question is not whether [the employee] could have done better; instead, the relevant question is whether the evidence shows that it was so clear that [the employee] could not have done better that [the employer] could not have believed otherwise”
- explaining that a plaintiff alleging unlawful age discrimination “cannot survive summary judgment ... simply by pointing to evidence that could convince a reasonable factfinder that [she] did as well as [she] could under the circumstances.”
Written by the judges who cited it.
The opinion
ROTH, Circuit Judge,
concurring and dissenting:
I join in all parts of the majority opinion except for Part II.B. I do not believe that we can avoid resolving the question of whether Ryan’s alleged statement on April 13, 1992, constituted “direct evidence” within the meaning of Price Waterhouse. In avoiding this question, the majority is by necessity deciding something. First of all, it is deciding that “direct” evidence may be of such little probative value that it need not rise to the level of creating a material issue of fact or of preventing a grant of summary judgment in favor of the defendant. If such a decision were not implicit in the majority’s conclusion in Part II.B, the majority would *1115 have not been able to affirm the district court’s granting of summary judgment in a case in which there is the possibility that “direct evidence” has been proffered by the non-moving plaintiff. I do not consider that “direct evidence” could be of such little probative value that, if it were present in any given case, it would be sufficient to be classified as “direct” but not sufficient to prevent summary judgment.
A second implied determination that can be read into Part II.B is that “direct evidence” may be determined by reviewing all the evidence that will be presented to the fact finder. I am troubled by the breadth of such a holding. Moreover, I am not sure that it can be read to follow from Justice O’Connor’s statement in Price Waterhouse. I would conclude instead that, when Ryan’s April 13 remark is viewed in the context in which it was made and in light of the possible ambiguities inherent in the language he used, his statement is not “direct evidence.”
A third assumption that I can draw from the reasoning of Part II.B is that the majority arrived at the decision that it did in Part II.A.2 only by, in essence, determining that Ryan’s April 13 remark was not “direct evidence” of discrimination. If that is so, then why not say so.