Danzer v. Norden Systems, Inc.

• Decision Date: 15 July 1998
• Docket Number: No. 97-9086,97-9086
• Citation: 151 F.3d 50
• Parties: 78 Fair Empl.Prac.Cas. (BNA) 661, 74 Empl. Prac. Dec. P 45,583 Paul M. DANZER, Plaintiff-Appellant, v. NORDEN SYSTEMS, INC., Westinghouse Norden Systems, Inc., United Technologies Corporation, and Northrop Grumman Corporation, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 50

151 F.3d 50

78 Fair Empl.Prac.Cas. (BNA) 661,

74 Empl. Prac. Dec. P 45,583

Paul M. DANZER, Plaintiff-Appellant, v. NORDEN SYSTEMS, INC., Westinghouse Norden Systems, Inc. United Technologies Corporation, and Northrop Grumman Corporation, Defendants-Appellees.

No. 97-9086.

United States Court of Appeals Second Circuit

Argued May 27, 1998.

Decided July 15, 1998.

James L. Kestell, Kestell & Associates, Falls Church, VA, for petitioner-appellant.

Lynn A. Kappelman, Day, Berry & Howard, Stamford, CT (Natasha M. Lipcan, of counsel), for defendants-appellees.

Before: CALABRESI, Circuit Judge, POLLACK ^* and DRONEY, ^** District Judges. ^***

CALABRESI, Circuit Judge:

Paul Danzer appeals from the granting of his former employer's motion for summary judgment by the United States District Court for the District of Connecticut (Alan H. Nevas, Judge ). Finding that a rational finder of fact could have rendered a verdict

for Danzer, we reverse that judgment and remand for trial.

FACTS

The facts of this case, viewed (as they must be) in the light most favorable to Danzer, are as follows. For twenty-seven years, Danzer worked as an engineer at Norden Systems, Inc., where he consistently received exemplary performance evaluations and, occasionally, specific bonus payments for outstanding service. Over the years, Danzer progressed to levels of seniority. For example, in 1988, he served as the Acting Engineering Manager for Systems Engineering.

In 1990, Dan Held, Danzer's supervisor, instructed Danzer to prepare a chart indicating the ages of the engineering staff, to corroborate a suspicion Held had that the average age of the engineers was well into the 40s and 50s. (It apparently was.)

In January 1992, Held assembled senior members of his staff (including Danzer), and explained that one of the goals for the upcoming year was to get some younger people on board (to raise the IQ of the staff). He also stated that the current staff were, in his opinion, a bunch of "alta[sic] cockers." Held asked Lester Kosowsky, one of the staff members at the meeting, to translate this Yiddish term. Kosowsky replied, "Dan, you don't really mean that." But Held insisted on a translation, which Kosowsky rendered as "old fogies."

After this meeting, a co-worker of Danzer's, Marshall Greenspan, complained to Salina Gary, head of Norden's EEO Office. Gary investigated--she spoke to Danzer and others--and ordered Held to attend a diversity training program. The next month, however, Held reiterated that Norden needed a new cast of characters to win new business, and that "[w]e need new blood--new and younger, fresh skills from out of schools." Following this meeting (which Greenspan did not attend), Danzer himself complained to Gary and, in March, to Jane Nelson, Norden's Manager of Employee Relations.

Shortly thereafter--according to the evidence submitted in opposition to the motion for summary judgment--Danzer began encountering difficulty in getting authorization to fund various proposals and projects. And in the summer, when Danzer's annual performance review for 1991 was prepared, Held, while giving Danzer his consistently above-average rankings, marked Danzer lower in "leadership," lamenting that Danzer was "technically creative, but has not brought any significant new business in yet, nor developed an aggressive initiative to get new business--unfortunately, this was (and still is) his charter, at least for the lat[t]er part of 1991."

Danzer claims that matters worsened as 1992 progressed. Not only was he denied funding to develop proposals--which Danzer says was critical if he was to secure any new business for Norden--but he began to be removed from projects that he was already on, including, for example, one in which he was a key engineer (and, indeed, for which he had earlier received a special commendation in his performance evaluation for 1992).

At the beginning of 1993, Held arranged for an "interim" evaluation of Danzer to be made. This was prepared by an employee who admitted that he had never been asked to do such an interim evaluation before and that Held had specifically asked him to prepare Danzer's. In this evaluation Danzer was graded very poorly; among other things, he was ranked as "needing development" in five areas, including leadership. To the rankings, Held added the comment that, while Danzer had met many of his goals (approved by Held) for 1992, these goals were "not particularly challenging for a senior Grade Level 51 engineer."

In response to this evaluation, Danzer prepared an "objection" and submitted a "rebuttal" to Nelson in April of 1993. But when he expressed concern about the poor evaluation to Held, he was told not to worry about it because he was not going to be around much longer. Danzer then retained counsel, who, in a letter to Norden, expressed concern over Held's comment.

Danzer's position was eliminated in May (effective June 30), of 1993. And Danzer began the current litigation in the United States District Court for the District of Connecticut under the Age Discrimination in Norden moved for summary judgment. It argued, among other things, that there was an overwhelming restructuring of the defense contracting industry in the early to mid 1990s and that Danzer was let go (along with 80% of the workforce) because he simply could not generate the new business that Norden so desperately needed in order to survive. It also argued that Held's derogatory remarks should not have been given much weight, because (i) Held was not the officer who ultimately terminated Danzer; (ii) Held himself was "old" when he made the "alt[e] cocker" comment (as were the other members of the meeting); and (iii) the two meetings at which Held made troubling comments took place over a year before Danzer was actually fired. The district court granted Norden's motion, and Danzer appeals.

Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.

DISCUSSION

We conclude that the district court erred. The record before it was replete with evidence from which a rational finder of fact could infer that age was a motivating factor in Danzer's dismissal, under either the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, or the mixed-motive framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). See generally Renz v. Grey Advert., Inc., 135 F.3d 217, 221-23 (2d Cir.1997) (clarifying the burdens of production and persuasion in such cases); Stratton v. Department for the Aging, 132 F.3d 869, 878-79 (2d Cir.1997) (discussing the two paradigms and emphasizing that, in determining whether a jury verdict may be sustained, the nonmovant gets "the benefit of all reasonable inferences").

As recent discrimination cases of our court have made clear, summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. See, e.g., Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir.1997). ¹ There must either be a lack of evidence in support of the plaintiff's position, see Norton v. Sam's Club, 145 F.3d 114, 117-20 (2d Cir.1998), or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error. See Fisher v. Vassar College, 114 F.3d 1332, 1359 (2d Cir.1997) (in banc ) (Calabresi, J., concurring in part and dissenting in part). And it remains the case that at summary judgment, all factual inferences must be resolved in favor of the non-movant. Thus, for example, the district court's conclusion that "the 'alt[e] cockers' remark is ambiguous and susceptible to several nondiscriminatory interpretations," while quite possibly correct, does no more than identify a disputed factual issue as to which the nonmovant's (plausible) interpretation must, at summary judgment, be accepted.

Defendants advance various arguments--some fact-specific and some purely legal--in favor of summary judgment; none of them have merit. But before we reach these contentions, we address several arguments powerfully put forward by the dissent.

I.

The dissent maintains that the plaintiff did not directly traverse the defendants' stated reasons for firing him and that, without such evidence, the defendants' proffered reasons negate the plaintiff's prima facie case and require summary judgment against him. But in so arguing, the dissent conflates two different age-neutral explanations that Norden asserted to justify Danzer's termination.

First, Norden contended that Danzer job performance had deteriorated and had become unacceptable because he was not bringing new business to the company. Danzer directly countered this explanation in two ways. In his affidavit, he specifically denied that his actual performance had declined maintaining that he performed at an "above-average" level until the time he was fired. And he adduces evidence, also in his affidavit, that, to the extent that he had failed to attract new business for Norden, Norden had created this poor performance by denying Danzer the funding that was necessary to generate new business. Danzer's claim that his performance had remained acceptable is no more conclusory than Norden's assertion that it had deteriorated. Moreover, his assertion that he lacked adequate funding suffices to create a genuine issue of fact on the one reason that Norden gave for his alleged poor performance, his failure to attract new business. We therefore conclude that Danzer adequately met his burden of producing evidence to rebut Norden's explanation. ²

Norden's second age-neutral explanation for terminating Danzer was that Danzer was "downsized" as part of a reduction in force at Norden. The dissent is correct that Danzer does not dispute that he was let go as part of a reduction in force. But to say that Danzer's admission that his firing took...