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Fasold v. Justice

June 1, 2005

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.

The opinion of the court was delivered by: Sloviter, Circuit Judge

PRECEDENTIAL

Argued February 15, 2005

Before: SLOVITER, AMBRO, and ALDISERT, Circuit Judges

OPINION OF THE COURT

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 *fn1 years old in 1986 when he began his work as a detective at the Montgomery County District Attorney's Office. *fn2 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 "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.*fn3

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 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. *fn4 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.

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 "preposterous." App. at 530.*fn5

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., 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 *fn6 or the "analogous provision" of the PHRA,*fn7 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. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). *fn8 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.*fn9

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. Serv., 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 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 ...


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