Case No.: 13-11358 - AARP · Case No.: 13-11358 UNITED STATES COURT OF APPEALS FOR THE FIFTH...
Transcript of Case No.: 13-11358 - AARP · Case No.: 13-11358 UNITED STATES COURT OF APPEALS FOR THE FIFTH...
Case No.: 13-11358
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
JERRELL P. SQUYRES, on behalf of himself,
Plaintiff-Appellant,
v.
THE HEICO COMPANIES, L.L.C.; S-LINE CORPORATION,
L.L.C.; ANCRA INTERNATIONAL, L.L.C.,
Defendants-Appellees.
On Appeal from the U.S. District Court for the
Northern District of Texas
The Honorable Jane J. Boyle (3:12-cv-02348-B)
Daniel B. Kohrman*
Thomas W. Osborne
AARP Foundation Litigation
Melvin Radowitz
AARP
601 E St., NW
Washington, DC 20049
202-434-2060 (p)
202-434-6424 (f)
*Counsel of Record
Counsel for Amicus Curiae AARP
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Certificate of Interested Persons
The undersigned counsel of record certifies that the following listed persons
and entities have an interest in the outcome of this case:
1. Plaintiff Jerrell Squyres – Appellant
2. Hal K. Gillespie, GILLESPIE SANFORD LLP, Counsel for Jerrell Squyres.
3. Yona Rozen, Law Offices of Yona Rozen – Counsel for Jerrell Squyres
4. Defendants The Heico Companies, LLC, S-Line, LLC and Ancra
International, LLC – Appellees
5. Linda M. Doyle and Kirk Watkins, MCDERMOTT WILL & EMERY LLP
– Counsel for Appellees
6. Amy B. Boyea, EDISON, MCDOWELL & HETHERINGTON LLP –
Counsel for Appellees
7. AIG Insurance Company – Primary Insurer for Appellees
8. AARP – Amicus Curiae
9. Daniel B. Kohrman - Counsel for Amicus Curiae AARP
10. Melvin Radowitz – Counsel for Amicus Curiae AARP
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Corporate Disclosure Statement
The Internal Revenue Service has determined that AARP is organized and
operated exclusively for the promotion of social welfare pursuant to Section
501(c)(4) (1993) of the Internal Revenue Code and is exempt from income tax.
AARP is also organized and operated as a non-profit corporation pursuant to Title
29 of Chapter 6 of the District of Columbia Code 1951.
Other legal entities related to AARP include AARP Foundation, AARP
Services, Inc., Legal Counsel for the Elderly, Experience Corps, d/b/a, AARP
Experience Corps, AARP Insurance Plan, also known as the AARP Health
Trust, and AARP Financial.
AARP has no parent corporation, nor has it issued shares or securities.
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Table of Contents
CERTIFICATE OF INTERESTED PERSONS .......................................................i
CORPORATE DISCLOSURE STATEMENT ...................................................... ii
TABLE OF AUTHORITIES ................................................................................... v
INTEREST OF AMICUS CURIAE ........................................................................ 1
SUMMARY OF THE ARGUMENT ...................................................................... 2
ARGUMENT ........................................................................................................... 3
I. Introduction .................................................................................................... 3
II. By Violating its Duty at Summary Judgment the District
Court Usurped the Role of the Jury ............................................................... 5
A. The effect of the Supreme Court’s recently
modified 2009 Gross decision on plaintiffs’
summary judgment burden in an ADEA pretext
case, if any, is to somewhat lighten that burden ................................. 6
B. The court violated its duty of neutrality by viewing
the evidence in favor of defendants instead of in
the light most favorable to plaintiff, weighing the
evidence, and making credibility determinations in
favor of defendants ............................................................................ 10
III. The Shifting Reasons Offered by the Defendants for the
Adverse Employment Action Were Sufficiently
Inconsistent to Create a Genuine Issue of Material Fact
Regarding Whether They Were a Pretext for
Discrimination ............................................................................................. 15
CONCLUSION ...................................................................................................... 19
CERTIFICATE OF SERVICE .............................................................................. 20
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CERTIFICATE OF COMPLIANCE ..................................................................... 21
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Table of Authorities
Cases
Abraham v. Raso, 183 F.3d 279 (3rd Cir. 1999) ................................................... 13
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................5, 6, 10
Burrage v. United States, 134 S. Ct. 881 (2014) ........................................... passim
Burrell v. Pepper, 482 F.3d 408 (5th Cir. 2007) ................................ 16, 17, 18, 19
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................ 5
Chambers v. Sodexo, Inc., 510 Fed. Appx. 336 (5th Cir. 2013) ............................ 10
Crawford v. Formosa Plastics Corp., 234 F.3d 899 (5th Cir. 2000) ...................... 5
Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000) .......................................... 11
Fierros v. Tex. Dep't of Health, 274 F.3d 187, 190 (5th Cir. 2001) ...................... 11
Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) .................................... 16, 17, 18, 19
Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) ........................ passim
Jerge v. City of Hemphill, 80 Fed. Appx. 347 (5th Cir. 2003) .............................. 11
Johnson v. Del. County Juvenile Det. Ctr.,
2013 U.S. App. LEXIS 23743 (3d Cir. 2013) .................................................... 8
Katseanes v. Time Warner Cable, Inc.,
511 Fed. Appx. 340 (5th Cir. 2013) .................................................................... 8
Leonard v. Dixie Well Service & Supply, Inc.,
828 F.2d 291 (5th Cir. 1987) ................................................................12, 14, 19
Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..................... 5
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Parris v. Wyndham Vacations Resorts, Inc.,
2013 U.S. Dist. LEXIS 150474 (D. Haw. 2013) ................................................ 9
Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,
336 F.3d 410 (5th Cir. 2003) ............................................................................ 10
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) ................... 6, 10
Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) ...................... 12
Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002) .......................... 8
SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009) ......................... 15
Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012) ....................................................... 9
Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009) ........................................ 8
Squyres v. Heico Cos.,
2013 U.S. Dist. LEXIS 162080 (N.D. Tx. Nov. 13, 2013) ...................... passim
Univ.of Tex. Southwestern Med. Ctr. v. Nassar,
133 S. Ct. 2517 (2013) .................................................................................... 7, 9
Vaughan v. Carlock Nissan of Tupelo,
2014 U.S. App. LEXIS 2131 (5th Cir. 2014) ............................................... 6, 13
Statutes, Rules and Regulations
Age Discrimination in Employment Act
29 U.S.C. § 623(a)(1) .......................................................................................... 7
Fed. R. Civ. Proc. 56(a) ........................................................................................... 5
Fed. R. Civ. Proc. 56(c) ........................................................................................... 5
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Miscellaneous
Defendants’ Reply Brief In Further Support of Their
Motion for Summary Judgment ........................................................................ 14
Frediani Aff., July 29, 2013, ECF No. 53-2 ....................................... 11, 14, 16, 18
Frediani Dep. 158, Aug. 26, 2013, ECF No. 66-3 ................................................. 18
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Interest of Amicus Curiae
AARP is a nonprofit, nonpartisan organization with a membership that helps
people turn their goals and dreams into real possibilities, strengthens communities
and fights for the issues that matter most to families such as healthcare,
employment and income security, retirement planning, affordable utilities and
protection from financial abuse. AARP is dedicated to addressing the needs and
interests of people age fifty and older, including older workers, and strives through
legal and legislative advocacy to preserve the means to enforce their rights. AARP
has a long history of advocating for vigorous enforcement of the Age
Discrimination in Employment Act (ADEA) as well as state laws prohibiting
employment discrimination, such as the Texas Commission on Human Rights Act
(TCHRA).
In this case AARP’s concern is that by improperly granting summary
judgment for defendants the district court decision undermines the ability of
employees, such as Squyres, to vindicate their right to be free of workplace age
discrimination under both the ADEA and the TCHRA. AARP submits this brief
amicus curiae to assist this Court in reviewing the district court decision granting
summary judgment for defendants.
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Summary of the Argument
While the district court correctly stated the difference between the proof
standards under the ADEA and the TCHRA, it nevertheless failed to evaluate the
evidence properly under either standard. The district court concluded incorrectly
not only that Squyres’ evidence did not present a genuine issue of material fact
regarding whether age was a but-for cause of plaintiff’s termination under the
ADEA, but also that it did not even raise a question of material fact under the
much lighter motivating factor standard applicable to the TCHRA. This erroneous
conclusion was based on the district court’s violation of its three-fold duty of
impartiality when ruling on a summary judgment motion. Moreover, the Supreme
Court’s recent decision in Burrage v. United States, 134 S. Ct. 881 (2014),
modifying its 2009 decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167
(2009) serves to lighten plaintiff’s burden at summary judgment.
First, the district court failed to view the evidence in the light most favorable
to plaintiff, the nonmoving party below. Indeed, the district court did exactly the
opposite, viewing the evidence in favor of defendants. Conceding that the reasons
stated by defendants for terminating plaintiff “do conflict,” but only “slightly,” and
not “to any great degree,” the district court invaded the province of the jury by
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concluding that those reasons were “not necessarily contradictory.” Squyres v.
Heico Cos., 2013 U.S. Dist. LEXIS 162080, at *27-*28 (N.D. Tx. Nov. 13, 2013).
Second, the court below weighed the evidence by determining that certain
statements of the decisionmaker were “more appropriately taken” as supporting
defendants’ version of the facts. Id. at *28.
Third, based on its evaluation of the weight of the evidence, the district court
drew inferences in favor of defendants and determined that defendants’ version of
the facts was more credible than plaintiff’s.
The decision below should be reversed and the case allowed to go to trial
where a jury can exercise properly the functions usurped by the district court in
this case.
Argument
I. Introduction
Instead of viewing the evidence in the light most favorable to Plaintiff
Squyres, the district court weighed the evidence and concluded inexplicably that
the “legitimate reasons” cited by defendants in support of their decision to
terminate Squyres by not renewing his original employment agreement also
supported their offer to hire plaintiff as an independent contractor. Id. at *26-*27:
“Indeed, the reasons that Frediani offers for his decision not to renew Squyres’
Agreement apply equally to his decision to offer Squyres a position ….” Id. at *31
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n. 2. Yet, according to the district court, despite this glaring contradiction there
was insufficient evidence to allow a jury to consider whether these reasons were a
pretext for age discrimination.
The folly of the district court’s conclusion is self-evident. How is it possible
that an employer’s reliance on the same reasons to justify its decisions to both fire
and at the same time hire the same older worker does not raise an issue of pretext?
By failing to recognize the absurdity of defendants’ position and granting their
summary judgment motion the district court allowed the defendants to get away
with this semantic sleight of hand. This Court should not condone such
gamesmanship.
Moreover, despite the conflicting and contradictory statements by the
decisionmaker about the reasons underlying his actions on behalf of defendants
against plaintiff, the district court failed to analyze those statements under the
separate standards applicable to the ADEA and TCHRA. While correctly
identifying the different standards, the district court discussed the evidence as if
only the single “but-for” ADEA standard were at issue. It never discussed
specifically how or why the evidence failed to satisfy the TCHRA standard, instead
simply stating its bald conclusion near the end of the opinion that in addition to
being insufficient to satisfy the but-for standard, the evidence was also insufficient
to raise a genuine issue as to whether age was a motivating factor. Thus, there is
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no basis upon which this Court can review the validity of the district court’s
reasons for reaching this erroneous conclusion.
II. By violating its duty at summary judgment the District Court usurped
the role of the jury.
Rule 56 (a) of the Federal Rules of Civil Procedure provides that “[t]he court
shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
In its 1986 summary judgment “trilogy” of Matsushita Elec. Indus. v. Zenith Radio
Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),
and Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court defined the
standards applicable to Rule 56. Thus, summary judgment is proper only "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law." Id. at
322, quoting then-effective Rule 56 (c). In Matsushita, 475 U.S. at 588, the Court
declared that “the inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the motion."
This Court has held that “[t]he ultimate determination, in every case, is
whether, viewing all of the evidence in a light most favorable to the plaintiff, a
reasonable factfinder could infer discrimination.” Crawford v. Formosa Plastics
Corp., 234 F.3d 899, 902 (5th Cir. 2000). Moreover, “at the summary judgment
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stage the judge's function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. "Credibility determinations, the weighing of evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51
(2000); Vaughan v. Carlock Nissan of Tupelo, 2014 U.S. App. LEXIS 2131, 4-5
(5th Cir. 2014).
In this case the district court failed to fulfill its duty of impartiality at
summary judgment. By failing to view the evidence in the light most favorable to
plaintiff, by drawing inferences in favor of defendants, by weighing the evidence,
and by determining that defendants’ version of the facts was more credible than
that of plaintiff, the district court invaded the province of the jury and usurped its
function.
A. The effect of the Supreme Court’s recent clarification of its 2009
Gross decision on plaintiff’s’ summary judgment burden in an
ADEA pretext case, if any, is to somewhat lighten that burden.
Citing Gross, 557 U.S. at 176, the district court declared that under the
ADEA “[u]ltimately, a plaintiff has the burden of persuasion to establish that age
was the but-for case [sic] of the employer’s adverse action.” Squyres at *10
[emphasis supplied]. However, in light of the Supreme Court’s recent decision in
Burrage, explaining the meaning of Gross, the district court’s construction of the
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Gross decision is incorrect. While Burrage was a criminal case, the Court
construed the meaning of “but-for” across the entire body of the law to mean that
there can be more than one but-for cause. In Burrage, the Court quoted Gross, but
substituted a bracketed “[a]” for the word “the” preceding the expression “’but-for’
cause.” Id. at 889. Thus:
Given the ordinary meaning of the word “because,” we held that [42
U.S.C.] §2000e-3(a) “require[s] proof that the desire to retaliate was
[a] but-for cause of the challenged employment action.” “[Univ.of
Tex. Southwestern Med. Ctr. v.] Nassar, supra, at ____, 133 S. Ct.
2517, 186 L. Ed. 2d 503 at 514 (2013). The same result obtained in an
earlier case interpreting a provision in the Age Discrimination in
Employment Act that makes it “unlawful for an employer . . . 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) (emphasis added). Relying on dictionary definitions of
“[t]he words ‘because of’” — which resemble the definition of
“results from” recited above — we held that “[t]o establish a
disparate-treatment claim under the plain language of [§623(a)(1)] . . .
a plaintiff must prove that age was [a] ‘but for’ cause of the
employer’s adverse decision.” Gross v. FBL Financial Services, Inc.,
557 U. S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009).
Id. at 888-889.
Therefore, the Supreme Court in Burrage rejected any notion that “but-for”
requires a showing that an impermissible motive was the sole cause of the
challenged action. In light of Burrage, 134 S. Ct. at 889, the plaintiff’s ultimate
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burden in an ADEA case is to show not that age was “the reason” for the
employer’s adverse action, but only that age was “a reason” for it.1
Gross further held the ADEA does not permit mixed-motives claims, in
which the burden of persuasion shifts to defendant if the plaintiff presents direct
evidence of discrimination.2 See, Smith v. City of Allentown, 589 F.3d 684, 691
(3d Cir. 2009) ("Gross stands for the proposition that it is improper to shift the
burden of persuasion to the defendant in an age discrimination case.”). Indeed, the
Third Circuit has held that Gross is inapplicable to ADEA pretext cases:
The Detention Center's argument that Johnson fails to show that age
was the “but for” cause of his termination pursuant to Gross v. FBL
Financial Services, Inc. is misplaced. In Gross, the issue was whether
the burden ever shifts to the party defending a mixed-motive
discrimination claim under the ADEA. Here, Johnson's claims of
discrimination are based on a pretext theory, not mixed-motive and,
thus, Gross is inapplicable.”
Johnson v. Del. County Juvenile Det. Ctr., 2013 U.S. App. LEXIS 23743 at
*10, (3d Cir. 2013), [internal quotation marks and citations omitted.]
1 Thus, Katseanes v. Time Warner Cable, Inc., 511 Fed. Appx. 340, 344 (5th Cir.
2013), which, quoting Gross, held that “age must be ‘the reason’ that the employer
decided to act” is no longer good law. 2 Additionally, in Katseanes at 344, this Court, quoting Sandstad v. CB Richard
Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), incorrectly declared that "[i]f the
plaintiff produces direct evidence that discriminatory animus played a role in the
decision at issue, the burden of persuasion shifts to the defendant, who must prove
that it would have taken the same action regardless of discriminatory animus."
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Assuming, arguendo, that Gross as clarified by Burrage does apply here to
somewhat lighten plaintiff’s ultimate burden, it should concomitantly lighten his
burden at summary judgment.
On the other hand, it is at least questionable whether Gross (as clarified by
Burrage) has any bearing on plaintiff’s summary judgment burden in ADEA cases.
See, e.g., Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) ("Because Gross
involved a case that had already progressed to trial, it did not address the
evidentiary framework applicable to a motion for summary judgment."). Further,
“Nassar, 133 S. Ct. 2517 (2013) does no more than apply Gross to Title VII
retaliation claims, and nothing in that opinion purports to go beyond Gross or to
increase the evidence required to defeat summary judgment.” Parris v. Wyndham
Vacations Resorts, Inc., 2013 U.S. Dist. LEXIS 150474, 25-26 (D. Haw. 2013).
Thus, if the district court’s invocation of Gross has any meaning for this summary
judgment case, it should be to relieve plaintiff from the post-Gross/pre-Burrage
requirement to raise a genuine issue of fact regarding whether age was the but-for
cause of appellees’ adverse actions. Instead, pursuant to Burrage, plaintiff need
satisfy only the lighter burden of raising a genuine issue of fact regarding whether
his age was a but-for cause of defendants’ actions.
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B. The court violated its duty of neutrality by viewing the evidence in
favor of defendants instead of in the light most favorable to
plaintiff, weighing the evidence, and making credibility
determinations in favor of defendants.
At the summary judgment stage the judge's sole function is “to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. "Credibility
determinations, the weighing of evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge." Reeves, 530 U.S. at 150-
51; Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412
(5th Cir. 2003) (At summary judgment, the court "must review all of the evidence
in the record, but make no credibility determinations or weigh any evidence.");
Chambers v. Sodexo, Inc., 510 Fed. Appx. 336 (5th Cir. 2013) (same). Yet in this
case the district court abandoned its proper role at summary judgment by weighing
the evidence and making credibility determinations. Furthermore, the district court
not only did not view the evidence in the light most favorable to Plaintiff Squyres,
the nonmoving party, but also viewed the evidence in favor of defendants and drew
inferences in their favor.
It is crystal clear that the district court engaged in weighing the evidence.
The most blatant example is its rejection of Squyres’ argument that Frediani’s
different statements in his deposition and affidavit, which, the court conceded “do
conflict slightly,” Squyres at *27, are sufficient to create a genuine issue of
material fact regarding pretext. In his deposition Frediani stated "[i]f we were
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disappointed at something [Squyres] was doing, I certainly wouldn't have made the
effort [to craft an offer for a new position]." Id. In his affidavit in support of
defendants’ motion for summary judgment he stated four reasons that he “was
unhappy with Squyres' job performance.” Frediani Aff. para. 15, July 29, 2013,
ECF No. 53-2. The district court found that these statements were “not necessarily
contradictory.” Squyres at *28. In making a summary judgment determination,
however, "doubts are to be resolved in favor of the nonmoving party, and any
reasonable inferences are to be drawn in favor of that party." Fierros v. Tex. Dep't
of Health, 274 F.3d 187, 190 (5th Cir. 2001), quoting Evans v. City of Bishop, 238
F.3d 586, 589 (5th Cir. 2000). Here, however, instead of viewing this
contradiction to the benefit of the plaintiff, the district court resolved the doubt in
favor of defendants, the moving party below.
Additionally, the court concluded that these statements are “more
appropriately taken,” Squyres at *28, as indicating that while Frediani did not have
reasons to “affirmatively terminate” Squyres, he did have reasons to end Squyres
employment agreement. Id. This Court has held, however, that a district court
“may not draw negative inferences, let alone inferences based on speculation,
against a nonmoving party.” Jerge v. City of Hemphill, 80 Fed. Appx. 347, 352
(5th Cir. 2003). The district court’s conclusion that Frediani’s statements are
“more appropriately taken” only one way, i.e., in the manner asserted by
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defendants, when it is clear that there is at least one other, credible interpretation of
those statements, such as that argued by plaintiff, manifestly is weighing the
evidence. Indeed, how precisely Frediani’s statements are to be “taken” is a
question appropriate for resolution only by a jury. “A judge assessing the
‘persuasiveness’ of evidence presented on a motion for summary judgment may
discount such evidence as unspecific or immaterial, but not as unbelievable.”
Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).
Moreover, the court exacerbated its invasion of the province of the jury by
concluding that Frediani’s above-quoted “slightly” conflicting statements “do not
conflict to any great degree.” Squyres at *27. Whether and how much witness
statements conflict are jury questions. See, Russell v. McKinney Hosp. Venture,
235 F.3d 219, 225 (5th Cir. 2000) (It is the province of the jury to choose among
conflicting versions and make credibility determinations).
A further manifestation of weighing the evidence is the district court’s
conclusion that Frediani’s statement in his deposition that "[i]f we were
disappointed at something [Squyres] was doing, I certainly wouldn't have made the
effort [to craft an offer for a new position]," Squyres at *27, “does not necessarily
indicate that Frediani was in every respect pleased with Squyres' performance,
however, and it is therefore not necessarily contradictory when Frediani states in
his affidavit that he personally had misgiving about Squyres' performance.” Id. at
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*28 [emphasis supplied]. Like the question of what these statements are “more
appropriately taken” to mean, the determination of what a statement necessarily
indicates and whether it necessarily contradicts another statement clearly are jury
questions. See, Abraham v. Raso, 183 F.3d 279, 287 (3rd Cir. 1999) (“[A] court
should not prevent a case from reaching a jury simply because the court favors one
of several reasonable views of the evidence ... [t]hus, while the nonmoving party
must present enough evidence to demonstrate a dispute is genuine, all inferences in
interpreting the evidence presented by the parties should be drawn in favor of the
nonmoving party.”)
The sophistry inherent in the court’s resolution of what are quintessentially
jury questions is also indisputable evidence that the court determined that
defendants’ version of the facts was more credible than plaintiff’s. “Ultimately, of
course, it is up to the trier of fact to decide whose version of events should be
believed.” Vaughan, 2014 U.S. App. LEXIS at *21. Defendants argued that
“Frediani did not just choose to terminate Squyres. Rather, he decided not to
renew Squyres’ Employment Agreement and to instead offer him a position more
consistent with the value he added to the company. Only after Squyres failed to
accept the new position by the appropriate deadline did Frediani make the decision
that ended Squyres’ employment.” Squyres at *17 [emphasis in original]. At first,
the district court seemed to reject this argument: “Defendants' assertion that the
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decision to allow Squyres' Employment Agreement to expire does not equate to a
‘termination’ is not convincing. The effect of Defendants' decision was to
materially alter Squyres' employment status as well as his pay and job
responsibilities-certainly enough to constitute an adverse employment action.” Id.
at *13. Squyres argued that he was effectively terminated when his Employment
Agreement expired because defendants chose not to allow him to continue as an at-
will employee like all other employees of defendants. Nevertheless, the district
court subsequently concluded that Frediani’s statements “are more appropriately
taken as indicating that Frediani did not have reasons that drove him to
affirmatively terminate Squyres, even though he did have reasons to end Squyres'
Employment Agreement and offer him a new position.” Id. at *28.
Based on the evidence presented, however, a jury could conclude that since
Frediani never intended to renew the Employment Agreement when its initial term
expired, Defendants’ Reply Brief In Further Support of Their Motion for
Summary Judgment at 1, Frediani Aff. para. 14, Frediani may in fact have
expected Squyres to reject the offer of a lesser position and a nearly two-thirds
reduction in salary. A jury could further conclude that it was only after Squyres
did not timely accept or reject the offer that Frediani decided to retract the offer
and terminate Squyres and contemporaneously invented the reasons for doing so.
See Leonard, 828 F.2d at 294, in which this Court held that “the district judge
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erred in basing his decision granting summary judgment for defendant on finding
[defendant’s] evidence inherently more ‘reliable’ or ‘accurate’ than [plaintiff’s].”
See also, SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1218 (10th Cir. 2009)
(“If the evidence presented on a dispositive issue is subject to conflicting,
reasonable interpretations, summary judgment is improper.”).
III. The shifting reasons offered by the defendants for the adverse
employment action were sufficiently inconsistent to create a genuine
issue of material fact regarding whether they were a pretext for
discrimination.
The district court found initially that Frediani stated four reasons for his
decisions in his affidavit: He was unhappy with Squyres’ lack of success as a
salesperson; Squyres’ conduct with regard to business expenses; Squyres’
resistance to reporting to others; and the excessive amount of time Squyres spent at
unproductive social events. Squyres at *17. The court also found that Frediani
wanted to allow Squyres’ Employment Agreement to expire to reduce costs. Id.
Further along in its opinion the district court found that “Frediani states in his
affidavit that he decided not to renew Squyres' Employment Agreement because
(1) Squyres' expense account use was excessive and violative of company policy,
(2) Squyres resisted reporting his hours and activities, (3) Frediani wanted to
reduce costs by reducing Squyres' salary, and (4) Squyres had not provided the
expected value to the company.” Id. at *20 [emphasis supplied].
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The problem with the court’s pretext analysis is that in his affidavit Frediani
did not say that that he decided to not renew Squyres Employment Agreement for
the above-quoted reasons. He said only that these were the reasons he “was
unhappy with Squyres’ job performance.” Frediani Aff. para. 15. He also said:
“There was never any intent to renew the Employment Agreement between
Squyres and S-Line.” Id. at para. 14. If Frediani never had any intent to renew the
Agreement, then both the court’s conclusion that “based on a number of legitimate
reasons, Frediani chose not to renew Squyres’ Agreement,” Squyres at *26, and the
reasons themselves must be false, just as Squyres claimed.
Moreover, faced with defendants’ argument in the alternative that they did
not terminate plaintiff, but even if they did terminate him the reasons provided by
Frediani were sufficient to satisfy their burden at summary judgment, plaintiff
argued that those reasons were shifting and inconsistent and, thus, sufficient to
raise a genuine issue of material fact regarding whether they were a pretext for age
discrimination. The district court, however, rejected plaintiff’s argument based on
its flawed analysis of Burrell v. Pepper, 482 F.3d 408, 415 (5th Cir. 2007), and
Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002), concluding incorrectly that
defendants’ reasons “are not [as] inconsistent or shifting as the reasons offered by
the defendant employers in Burrell and Gee.” Squyres at *24. Properly analyzed,
however, both Burrell and Gee support plaintiff’s position.
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In Burrell, the defendant employer told the EEOC as well as this Court that
the plaintiff had been denied promotion because of his lack of “purchasing
experience,” while stating to the district court that the plaintiff’s termination was
the result of a lack of “bottling experience.” Burrell, 482 F.3d at 413. Finding that
the defendant’s rationale for its employment decision was “suspect because it has
not remained the same,”Id. at 415, this Court held that these statements were
sufficiently inconsistent to create a genuine issue of material fact on the issue of
pretext. Similarly, in Gee, Gibbs, the deciding official behind the adverse
employment action, made a series of contradictory statements regarding how the
decision was made to not appoint the plaintiff to a new position and the role that
others who may have had retaliatory intent against Gee may have played in that
decision. Specifically, Gibbs stated that he had not participated in a meeting
relating to the position, and then later admitted that he had in fact attended such a
meeting. He initially stated that he was unable to recall the substance of comments
about the employee during the meeting, but then later testified that everyone made
comments during the meeting and that they were generally negative. Finally, he
also stated that others were not involved in the selection process and then later
admitted that he had consulted with several other individuals. As a result of these
contradictory statements, this Court held that there was an issue of material fact as
to the reasoning behind the decision that precluded summary judgment.
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In this case, Frediani directly contradicted himself by first stating in his
deposition "[i]f we were disappointed at something [Squyres] was doing, I
certainly wouldn't have made the effort [to craft an offer for a new position],"
Squyres at *27. Subsequently in his affidavit in support of defendants’ motion for
summary judgment he stated that he “was unhappy with Squyres’ job
performance.” Frediani Aff. para. 15. As in Burrell and Gee, these statements
were directly relevant to the question why Frediani made the decision to take an
adverse employment action against Squyres. And even though it was his decision
to withdraw the offer of an independent contractor position to Squyres and to let
the Agreement expire, he stated in his deposition that he did not make a decision to
terminate Squyres. Frediani Dep. 158, Aug. 26, 2013, ECF No. 66-3, The plain
meaning of these statements is directly contradictory. Nevertheless, the district
court concluded that the statements “are not so inconsistent as to raise a question of
fact as to” pretext. Squyres at *28. Even more inexplicably, the district court
concluded that defendants’ reasons “have remained consistent throughout the
case.” Id. at *26.
Moreover, even if the district court’s two different summaries of the reasons for
Frediani’s actions set forth in his affidavit can be reconciled because some reasons
are merely “stated very generally,” Id. at *20, the defendants provided Squyres
with another, different reason for his termination. In his email withdrawing the
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19
offer to hire Squyres as an independent contractor Frediani stated that the company
“is unable to provide you with an employment agreement that meets your needs.”
Id. at *24. Thus, contrary to the district court’s conclusion, Frediani’s different
statements are at least as contradictory as those in Burrell and Gee that this Court
held were sufficient to justify denial of summary judgment for the employer.
Conclusion
“The party opposing a motion for summary judgment, with evidence competent
under Rule 56, is to be believed; it is for the jury at trial, not for the judge on a
pretrial motion, to decide whose evidence is more credible.” Leonard, 828 F.2d at
294. Since the district court violated this rule in the multiple ways described in
this brief, the decision below should be reversed and the case should be remanded
to the district court for further proceedings.
March 27, 2014 Respectfully submitted,
/s/Daniel B. Kohrman
Daniel B. Kohrman*
Thomas W. Osborne
AARP Foundation Litigation
Melvin Radowitz
AARP
601 E St., NW
Washington, DC 20049
202-434-2060 (p)
202-434-6424 (f)
*Counsel of Record
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Certificate of Service
I hereby certify that on March 27, 2014, I electronically filed the foregoing
Brief with the Clerk of the Court for the United States Court of Appeals for the
Fifth Circuit by using the appellate CM/ECF system, which caused a copy to be
delivered to all counsel of record who are registered with the CM/ECF system.
/s/Daniel B. Kohrman
Daniel B. Kohrman
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21
Certificate of Compliance
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 4,523 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements in Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it uses
a proportionally spaced typeface using Microsoft Word in Times New Roman, 14-
point font for text and footnotes.
3. This brief complies with the privacy-redaction requirement of Fifth
Circuit Rule 25.2.13. Personal identifiers are redacted in accordance with rules.
4. This brief complies with the electronic submission requirement of
Fifth Circuit Rule 25.2.1 because it is an exact copy of the paper document.
Dated: March 27, 2014 /s/Daniel B. Kohrman
Daniel B. Kohrman*
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