Harbison-Walker Refractories v. Brieck Brief for Respondent

    No. 87-271

In THE

d u p re m ?  © c u rt X ty Httitei* # tat£ B
October T e em , 1987

H arbison-W alker R efractories,
A Division of Dresser Industries, Inc.,

Petitioner, 
v.

E u g en e  F. B e ie c k ,
Respondent.

ON WRIT OF CEETIOB.AB1 TO THE UNITED STATES 
COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENT

J ames H. L ogan*
Logan & Logan 
307 Fourth Avenue 
Pittsburgh, Pa. 15222 
(412) 765-0960

J u l iu s  L, Chambers 
C harles S t e p h e n  R alston 
R onald L. E llis  
E ric S o hnappeb

IsT A A CP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street
New York, New York 10013
(212) 219-1900

Counsel for Respondent

‘̂ Counsel of Record



QUESTION PRESENTED

Does the record in this case present 
genuine issues of material fact regarding 
r e s p o n d e n t ' s  c l a i m  of unla w f u l  
discrimination?

i



TABLE OF CONTENTS

Page
Question Presented . ........  i
Statutory and Constitutional

Provision Involved ........ 1
Statement of the Case .......... 2
Summary of Argument ............ 9
Argument ..................... . . 12

I . The Record Presents 
Genuine Issues of
Material Fact .........   12

II. The Denial of Summary 
Judgment Is Consistent 
With Rule 56 and the Age 
Discrimination in Employ­
ment Act ..................  55
A. The Applicable Legal

Standards ............ 5 6
B. Petitioner's Legal

Arguments ............ 73
C. The Role of Discre­

tion in Disposing 
of Motions for
Summary Judgment ....  89

Conclusion .........     100

ii



TABLE OF AUTHORITIES
Cases: Page
Adickes v. S.H. Kress & Co.,

398 U.S. 144 (1970) ........ 57,60
Anderson v. Bessemer City,

470 U.S. 564 (1985)    11,65,81
Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986) . 56,83,93
Arnstein v. Porter,

154 F .2d 464 (2d Cir.
1946)   66

Cales v. Chesapeake & Ohio Ry.
Co., 46 F.R.D. 36
(W.D. Va. 1969)    67

Croley v. Matson Navigation 
Co., 434 F .2d 73
(5th Cir. 1970)   63

Doehler Metal Furniture Co. v.
United States, 149 F.2d
130 (2d Cir. 1945)   96

Dombrowski v. Eastland,
387 U.S. 82 (1967) ....---  94

Dyer v. MacDougall, 201 F.2d
265 (2d Cir. 1952)   68

Elliott v. Elliott,
49 F.R.D. 283 (S.D.N.Y.
1970)   96

First National Bank of Arizona 
v. Cities Service Co.,
391 U.S. 253 (1968)   60,96

iii



Cases: Page
Furnco Construction Corp. v.

Waters, 438 U.S. 567
(1978)   16

Hutchinson v. Proxmire,
443 U.S. Ill (1979)   12,61,64,71

Kennedy v. Silas Mason Co.,
334 U.S. 249 (1948)   90

Kilgo v. Bowman Transp. Co.
789 F .2d 859 (11th Cir.
1986) .................. . . 32

Nunez v. Superior Oil Co.,
572 F .2d 1119 (5th Cir.
1978)   58

Patterson v. McClean Credit
Union, No. 87-107 ......... 88

Patton v. Yount, 467 U.S. 1025
(1984)   65

Petition of Bloomfield
S. S. Co., 298 F. Supp.
1239 (S.D.N.Y. 1969) ...... 95

Pinson v. Atchison,
T. & S.F.R. Co., 54 F.
464 (W.D. Mo. 1893)   70

Poller v. Columbia
Broadcasting CO., 368 U.S.
464 (1962)   59,61

Sartor v. Arkansas Natural Gas 
Corp., 321 U.S. 620
(1944)     67-68

iv



Cases: Page
Schmitz v. St. Regis Paper Co.,

811 F .2d 131 (2d Cir.
1987)   32

Texas Department of Community 
Affairs v. Burdine, 450
U.S. 248 (1981) .......... 11,76-79,

82,83,87,88
Untermeyer v. Freund, 37 F. 342

(S.D.N.Y. 1889)   69
U.S. Postal Service Bd. of Govs, 

v. Aikens, 460 US. 711 
(1983)    64,79,82

Wainwright v. Witt, 469 U.S.
412 (1985)   63,65

Weinberger v. Hynson,
Westcott & Dunning, 412
U.S. 609 (1973)   58-59

White Motor Co. v.
United States, 372 U.S.
253 (1963)   61

RULES:
Rule 11, Federal Rules of

Civil Procedure ........... 57
Rule 50, Federal Rules of

Civil Procedure ........... 9 0
Rule 56, Federal Rules of

Civil Procedure .......  55,56,72,
85,89,95

V



Page
Federal Civil Judicial

Procedure and Rules
(1987 ed. )     84

OTHER AUTHORITIES:
29 U.S.C. § 623 (a) (1)   1
Age Discrimination in

Employment Act ............ 1,5,6,7,
55,75

Seventh Amendment,
United States Constitution. 2,59,

60,97
F. James and G., Hazard, Civil

Procedure (2d ed. 1977) ... 57,69
Moore1s Federal Practice

(1988)   93,94
C. Wright, A. Miller and

M. Kane, Federal Practice
and Procedure (1983) .. 57,62,67,70,

90,93,94,96

vi



No. 87-271

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1987

HARBISON-WALKER REFRACTORIES,
A Division of Dresser Industries, 
Inc. ,

Petitioner.
v.

EUGENE F. BRIECK,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Third Circuit

BRIEF FOR RESPONDENT
STATUTE AND CONSTITUTIONAL 
____PROVISION INVOLVED

S e c t i o n  4 ( a ) (1) of the Age
Discrimination in Employment Act of 1967,
29 U.S.C. § 623(a)(1) provides in
pertinent part



2
It shall be unlawful for an 
employer ... to fail or refuse 
to hire or to discharge any 
i n d i v i d u a l  or o t h e r w i s e  
d i s c r i m i n a t e  a g a inst any 
individual with respect to his 
compensation, terms, conditions, 
or privileges of employment, 
because of such individual's 
age....

The Seventh Amendment to the United States
Constitution provides:

In suits at common law, where 
the value in controversy shall 
exceed twenty dollars, the right 
to trial by jury shall be 
preserved, and no fact tried by 
a jury, shall be otherwise re­
examined in any Court of the 
United States, than according to 
the rules of the common law.

STATEMENT OF THE CASE 
The petitioner in this case is a 

manufacturer of specialized ceramic brick 
products which are sold primarily to steel 
producers. From 1965 until the early 
summer of 1982 respondent Eugene Brieck 
was employed by the firm as an 
installation specialist. In July of 1982, 
faced with a substantial decline in its



3
sales, Harbison-Walker began to reduce the 
workforce in the Iron and Steel Marketing 
Group in which respondent worked. 
Although Brieck, then aged 55, was the 
most senior installation specialist, and 
one of the more senior members of the 
entire group, he was the very first 
employee laid off. (Pet. App. 17a-18a; 
J.A. 31, 33) Brieck had 17 years of
e x p e r i e n c e  as a an installation 
specialist, compared to only 3 years of 
experience, some or all of it devoted to 
on the job training, for H.L. Faust, the 
youngest installation specialist. (J.A. 
33, 50, 152-54) During July, 1982,
Harbison-Walker laid off 7 of the group’s 
3 3 employees, including 3 of the 5 
employees who were then 55 or older. 
Among the company's installation 
specialists, all of the employees over 40 
—  the age group protected by ADEA —  were



4
laid off in July. (J.A. 31-33). The
remaining installation specialist, H. J.
Faust, then 39, was retained until
November of 1982; in the summer of 1983
Faust was recalled to a permanent position 
as an installation specialist. (J.A. 135, 
159) Harbison-Walker never offered either 
that or any other position to respondent 
after he was laid off.

On July 19, 1982, respondent filed
with the Pennsylvania Human Relations 
Commission an administrative charge 
alleging that he had been laid off because 
of his age. (J.A. 6). On June 29, 1984, 
Brieck brought this action against 
Harbison-Walker,1 alleging that the

1 Brieck also asserted a state law 
claim for breach of contract and for 
intentional infliction of emotional 
distress. (Complaint, 21-33). The
Third Circuit upheld the dismissal of 
those claims (Pet. App. 17a-20a), and 
respondent did not seek review of that 
dismissal by this Court.



5
company had terminated and failed to 
recall him because of his age, in 
violation of the ADEA, and requesting a 
jury trial. (J.A. 2-7). After discovery 
was completed, the company filed a motion 
for summary judgment. The company did 
not, of course, deny that there was a 
dispute regarding whether it had engaged 
in intentional discrimination, or that 
that dispute was material to Brieck's ADEA 
claim; it contended, however, that the 
dispute regarding this material fact was 
not "genuine" because there was no 
evidence to support Brieck's allegation. 
Brieck opposed this motion. Both 
petitioner and respondent relied in the 
district court on depositions that had 
been taken, and documents which had been 
produced during the course of discovery, 
as well as on affidavits submitted in 
connection with the disputed motion.



6
The district court granted the motion 

for summary judgment on December 19, 1985. 
(Pet. App. 12a-21a) . The district judge 
did not purport to find that no reasonable 
jury could return a verdict for Brieck, 
and did not refer to the fact that a jury 
trial had been requested. Rather, the 
judge apparently proceeded on the 
assumption that, if the subsidiary facts 
were clear, the court's responsibility was 
to decide what inferences ought to be 
drawn from those facts, and thus to itself 
dispose the case on the merits. In 
granting summary judgment regarding 
Brieck's ADEA claim, the district judge 
wrote:

Any question about ... how Faust 
spends his time edges into an 
area of scrutiny of business 
decisions, which is not part of 
our function. We ... consider 
it plausible that the importance 
of an employee's related 
experience, whether or not 
applied, increases under the 
scaled-down business operations



7
which in fact existed. Without 
considering age, we find that 
Mr. Brieck, in comparison to 
Faust, has
1. slightly more seniority;
2. slightly poorer performance

evaluations;
3. little experience in areas

[un]related to installation 
specialist.

We thus cannot find that age was 
a determinative factor in the 
decision to lav off Mr. Brieck. 
Other facts support this 
finding.2

 ̂ Pet. App. 17a. (emphasis added) 
The district court's treatment of Brieck's 
state law claims reflected this same 
approach. In rejecting Brieck's breach of 
contract claim, the court explained:

" V i e w i n g  d [e f e n ] d a n t  ' s 
statements most favorably to 
plaintiffs, they do not 
e s t a b l i s h  violation of a 
contract.... We find [Brieck's] 
evidence insufficient to satisfy 
the requirement for a provision 
setting the length of the 
contract.... Mr. Brieck ... has 
not established the form of a 
contract which supports his 
claim."

(Pet. App.l8a-19a) (emphasis added). The 
district court's discussion of the claim



8
The third circuit correctly criticized the 
district judge for having undertaken to 
decide what inferences should be drawn 
from the evidence (Pet. App. 5a-6a), and 
petitioner does not in this Court rely on 
the trial judge's "findings". On October 
2, 1986, the third circuit reversed the 
award of summary judgment, and remanded 
the ADEA claim for trial; one member of 
the appellate panel dissented from the

of Mr. Brieck and his wife for tortious 
infliction of emotional distress is 
similar in tone:

" f W ]e f ind that defendant's 
conduct in no way rises to the 
l e v e l  of o u t r a g e o u s n e s s  
necessary to invoke these 
theories.... fWle conclude that 
the plaintiff clearly has not 
shown that defendant's conduct 
meets the test of extremeness 
required by this theory. Our 
finding necessarily precludes 
Mrs. Brieck's claim of negligent 
infliction of emotional distress 
based on defendant's same 
actions."

(Pet. App. 19a-20a)



decision to permit a trial of the ADEA 
claim.3 (Pet. App. la-lla)

SUMMARY OF ARGUMENT 
This appeal presents a classic case 

of the type of sharply conflicting 
evidence which must be evaluated by the 
ultimate trier of fact, and ’which cannot 
be resolved by means of summary judgment

9

3 Judge Weiss' dissenting opinion 
is based on a number of material 
misunderstandings regarding the evidence 
in this case. Judge Weiss believed Brieck 
was the second installation specialist to 
be laid off (Pet. App. 8a); in fact Brieck 
was the first. (J.A. 33) Judge Weiss 
assumed that, when Faust was rehired, 
another over-40 installation specialist, 
E.G. Malarich, was still interested in the 
position, and was the more likely victim 
of any age discrimination (Pet. App. 9a); 
in fact Malarich had by then taken early 
retirement. (J.A. 123-25) Most 
importantly, Judge Weiss thought Faust had 
testified that he spent 75% of his time, 
after being recalled, on installation 
work, with the remaining 25% devoted to 
non-installation tasks (Pet. App. 10a); in 
fact Faust testified that he spent "at 
least" 75% of his time doing installation 
work on the road, and that much of his 
remaining time was devoted to installation 
related work, such as filling out reports, 
back at the office. (J.A. 160).



10
for either party. Petitioner's brief 
cogently depicts the evidence and 
inferences most favorable to the employer, 
but omits mention of most of the at least 
equally persuasive evidence adduced by the 
respondent. A more thorough review of the 
depositions, affidavits and documents 
reveals stark and plainly material 
conflicts in the evidence regarding the 
qualifications of respondent, the 
circumstances under which he was laid off, 
and the qualifications and experience of 
the younger worker who was retained in his 
stead. The record also indicates that 
company officials have over the years 
offered widely varying explanations of 
their decision to lay off respondent, a 
discrepancy which a trier of fact might 
fairly regard as probative evidence of 
discrimination.



11
Petitioner insists it is entitled to 

summary judgment because it adduced sworn 
statements by company executives insisting 
that they acted with no unlawful motive in 
deciding to lay off respondent. But Texas 
Department of Community Affairs v, 
Burdine. 450 U.S. 248 (1981), makes clear 
that a finder of fact may reject such 
protestations of innocence if it finds 
them "unworthy of credence." 450 U.S. at 
256. Questions of credibility cannot be 
resolved on summary judgment, but must be 
determined by the trier of fact after 
observing the demeanor of the witness 
during direct and cross-examination. See 
Anderson v. Bessemer City. 470 U.S.564, 
575 (1985) . A dispute about a claim of 
intentional discrimination, like any 
question regarding the state of mind of an 
individual, "does not readily lend itself



12
to summary disposition." Hutchinson v, 
Proxmire. 443 U.S. Ill, 120 n. 9 (1979).

This case was ready for trial in the 
summer of 1985. Instead of a trial that 
would have lasted no more than a few days, 
over three years have been consumed 
debating the strength and nuances of the 
evidence. The efficient administration of 
justice would have been far better served 
in this case if the district court had 
exercised its discretion to defer passing 
on petitioner's challenge to the 
sufficiency of the evidence until a jury 
had returned a verdict in the case.

ARGUMENT
I. THE RECORD PRESENTS GENUINE ISSUES OF

MATERIAL FACT
This appeal presents a classic 

example of the type of conflicting 
evidence and inferences which must be 
referred for resolution by a jury or other 
trier of fact. If the instant controversy



13
had been tried on the merits, and were 
somehow before this Court for de novo 
reconsideration, it would fairly be 
regarded as presenting a close case. As 
we set out in detail below, the record in 
this proceeding contains not only evidence 
supporting quite inconsistent inferences, 
but also square conflicts in the testimony 
regarding several material issues; 
reasonable persons might well disagree as 
to how those conflicts ought to be 
resolved. Had this case been tried before 
a jury, and a verdict returned in favor of 
the petitioner, we would be hard pressed 
to overturn such a verdict on appeal; the 
record undeniably contains substantial 
evidence supporting the contentions of the 
petitioner, and petitioner's brief 
cogently summarizes those portions of that 
record most favorable to it and sets forth 
with considerable force the inferences



14
that might conceivably have been drawn 
from those selected portions of the 
record.

In the present procedural posture of 
this case, however, the issue is not 
whether a jury verdict in favor of 
petitioner could be sustained on appeal, 
but whether a jury should be permitted to 
consider the merits of the underlying 
controversy. Petitioner describes the 
record in this case in terms which, if 
accurate, might well support an order of 
summary judgment. Thus petitioner asserts 
that the critical facts were either 
"undisputed"^ or " c o n c e d e d , a n d  

repeatedly insists that respondent had 
literally adduced "no" evidence whatever

4
5

Pet. Br. 6, 15 n. 8, 23 n. 15. 
Pet. Br. 6, 16.



15
of an unlawful discriminatory motive.6 
The actual record before the Court, we * 11

Pet. Br. i (respondent failed to 
present "any evidence, direct or indirect, 
that his employer's judgment was in fact 
motivated by an intent to discriminate"), 
6 ("Respondent failed to produce any 
evidence that the Company's proffered 
business reasons were a pretext for age 
discrimination"), "8 ("respondent ... 
produced no evidence —  other than the age 
differential between him and Faust—  
linking the company's decision to age"),
11 ("Respondent offered no evidence that 
age played ... a role in the decision), 11 
("plaintiff has produced no direct or 
indirect evidence of age discrimination),"
16 ("Respondent produced no direct 
evidence that Harbison-Walker's decision 
was motivated by age discrimination. Nor 
did he present any indirect evidence..."),
17 ("Respondent presented no specific 
facts, beyond the fact that the laid-off 
installation specialists were older than 
Faust, to demonstrate that the company's 
articulated reasons were pretextual"), 18 
("Respondent failed completely to forge 
any link between the challenged decision 
and age discrimination") , 21 ("complete 
absence of record evidence to support a 
finding of age discrimination"), 23 
("Respondent's complete failure to adduce 
evidence concerning the essential element 
of his case —  discrimination on the basis 
of age...."), 24 (respondent lacked any 
"factual support for his case").



16
suggest, cannot fairly support this 
characterization.

In the instant case, as in Furnco 
Construction Coro, v Waters. 438 U.S. 567, 
569 (1978), "[a] few facts ... are not in 
dispute." For some 17 years prior to 
June, 1982, respondent was an employee of 
petitioner Harbison-Walker, a diversified 
company whose activities include the 
manufacturing and sale of ceramic brick 
for use in industrial furnaces. 
Throughout this period respondent held the 
position of installation specialist; as of 
the spring of 1982 there were a total of 
four i n s t a l l a t i o n  specialists in 
petitioner's Pittsburgh office, respondent 
(age 55) , W. L. Meixell (59) , A1 Malarich 
(59), and Hugh Faust (39).7 (J.A. 31, 33)

Some portions of the record 
describe the position held by Meixell not 
as installation specialist but as "senior 
installation specialist." Defendant's 
Response to Plaintiff's First Set of



17
Brieck was laid off by petitioner on July 
2, 1982; petitioner subsequently laid off
Meixell (July 9, 1982), Malarich (July 30, 
1982), and last of all, Faust (November 
18, 1982). (J . A. 33). The next year
Faust was rehired8 as a permanent 
employee, which he evidently remains to 
this day. (J.A. 149). Petitioner
c o n c e d e d  that it had given no 
consideration to rehiring respondent when 
the 1983 vacancy, ultimately awarded to

Interrogatories Directed to Defendant, 
Appendix A. If Meixell held a position 
different and indeed higher than Faust, 
the decision to retain Faust and lay off 
Meixell might well be interpreted by a 
jury as evidence of a practice of age 
discrimination.

Technically laid off employees 
were on temporary furlough for the first 
nine months after leaving the company, 
after which the furlough became permanent. 
(J.A. 113-14) . It is unclear from the
record whether this nine month period had 
lapsed when Faust returned to work. At 
least one other laid off employee, aged 
22, was recalled after the expiration of 
this nine month period. (J.A. 33, 114).



18
Faust, arose. (J.A. 125) The central
issue in this case, is whether petitioner 
acted with an intent to discriminate 
against respondent because of his age 
when, in July of 1982, it laid off 
respondent while keeping Faust on the job, 
or in August of 1983, when it rehired 
Faust rather than respondent.

(A) The d e c i s i o n s  be l o w  and 
petitioner understandably focus much of 
their discussion on the reasons given by 
the company for deciding to retain and 
rehire Faust rather than respondent. In 
its brief in this Court petitioner now 
asserts that Faust was selected because he 
had as of 1982-83 more diversified 
experience and training. (Pet. Br. 4, 5). 
The record reveals, however, that company 
officials have over the course of this 
controversy given widely varying accounts



19
of the basis on which the disputed 
decisions were made.

The earliest explanation of the 
criterion for selecting employees for 
layoff came from Ralph Ytterberg, Senior 
Vice President of Dresser Industries, 
petitioner's parent company, in a company 
newsletter dated "Spring 1982". Ytterberg 
announced that "Length of company service 
and skill requirements . . . are the most 
important considerations". (J.A. 47).
Ytterberg's statement is important because 
it evidently predates the decision to 
dismiss respondent. Although there is 
considerable dispute in this case 
regarding what skills were needed in 
respondent's unit after June of 1982, and 
regarding what skills respondent and Faust 
in fact possessed, there is no dispute 
that respondent had more company seniority



20
than any of the other installation 
s p e c i a l i s t s ,  i n c l u d i n g  F a u s t . 9

Respondent's supervisor, Larry
Sheatsley, stated in his deposition that 
Faust had been retained over Meixell on 
the basis of seniority (J.A. 105), but all 
of the company managers questioned
conceded that, despite Ytterberg's 
announcement, respondent's greater 
seniority had not been considered when he 
was laid off instead of Faust. John
Nicolella, Harbison-Walker's manager of 
employee relations, asked to explain why 
the company had retained Faust rather than 
respondent, asserted that Faust had 
greater seniority than respondent (J.A.

9 The seniority dates of the
installation specialists were as follows:

Brieck June 1965
Malarich August 1966
Faust September 1966
Meixell January 1980

J.A. 33.



21
132), a statement which petitioner now 
acknowledges was incorrect. (Pet. Br. 3) . 
Sheatsley asserted that he premised his 
choice between petitioner and Faust on the 
assumption that they had "about the same 
years service with Harbison" (J.A. 105), a 
statement which a jury might find 
inconsistent with the 15 month difference 
in seniority, or with Ytterberg's 
announcement that seniority was an 
important consideration. Sheatsley's 
deposition testimony that he was aware of 
the seniority of each of the four 
installation specialists was seemingly 
contradicted by respondent's deposition 
which recounted that, in the course of 
telling Brieck he was being laid off, 
Sheatsley had professed surprise at 
learning that Brieck had more seniority 
than Faust. (J.A. 79). Finally,
petitioner offered in support of its



22
motion for summary judgment an affidavit 
of W i l l i a m  S e k e r a s , S h e a t s l e y 1s 
supervisor, which contained his own 
account of the directions given to 
Sheatsley for selecting the employees to 
be laid off; the Sekeras affidavit 
contains no reference whatever to 
seniority as a consideration (J.A. 13) ,
which seems less than fully consistent 
with Ytterberg's earlier announcement, or 
with the reasons given by Sheatsley for 
laying off Meixell rather than Faust.

On June 17, 1982, when the decision
to lay off respondent had been made, at 
least tentatively, but had not yet been 
announced, company executive F. P. 
S h o n k w i l e r  addressed an internal 
memorandum to Nicolella explaining that 
respondent had been chosen for layoff 
because he was "our least qualified 
Installation Specialist and has limited



23
expertise". (J.A. 145). The most 
noteworthy fact about this contemporaneous 
internal explanation is what it does not 
contain, viz. any suggestion that the 
choice had been based on respondent's 
comparative ability to perform functions 
other than those of an installation 
specialist. In this Court, of course, 
petitioner offers a rather different 
explanation, insisting that the decision 
to lay off respondent rather than Faust 
was based on the need for an employee who 
could work on noninstallation tasks. Were 
the company still sticking with the 
explanation given by Shonkwiler in 1982, 
this case would certainly have to be 
referred by a jury, for there are direct 
and unequivocal conflicts in the testimony 
regarding the comparative skills of 
respondent and Faust as installation 
specialists. (See section 1(B), infra).



24
The next occasion when the reasons 

for respondent's layoff were discussed was 
on July 2, 1982, when Sheatsley informed
respondent that he was being furloughed. 
Respondent testified at his deposition 
that he had asked why he had been selected 
for layoff, and was given a seemingly 
evasive response:

I says, "why me?"
He says, "we got to start 
somewhere"

*  *  *

Then I asked him about these 
young kids. I said, "What about 
all these young kids?" And he 
just wouldn't say nothing, he 
just sort of shrugged his 
shoulders ... [T]he younger kids 
. . . there was a dozen of them 
with less than maybe a year's 
service, if that much.

(J.A. 81; see also id. at 85) . A jury
might plausibly infer from Sheatsley's
silence that he had as of June, 1982, no
legitimate explanation to offer, and that
the explanation which he gave in his 1985



25
deposition had been concocted in the
interim. On the other hand r both
Sheatsley and another supervisor in the
room during this exchange stated in their 
depositions that they could not recall 
what questions respondent had asked, or 
what answers Sheatsley had given, 
regarding how the company had decided to 
lay off respondent rather than Faust or 
others. (J.A. 108, 122-23).10

xu Three days after he was laid 
off, respondent spoke by phone with the 
president of Harbison-Walker, Don Stocks, 
and directly complained that he had been 
laid off while far younger, and 
necessarily less senior, employees were 
retained:

"A. I ... says, You are keeping all 
these kids, and your[sic] 
neglecting me.

"Q. And what did he say to that?
"A. He says, I can't interfere with 

the process." He says, "I am 
sorry. Goody[sic]."

(J.A. 83) . A jury might have construed
Stock's statement merely as a refusal to 
become involved in personnel matters, or



26
Respondent's objection to the 

retention of younger, less senior workers 
was aired again later in 1982 at a meeting 
at the office of the Pennsylvania Human 
Relations Commission, attended by 
respondent and by John Nicolella, the 
firm's personnel director. At his 
subsequent deposition respondent recounted 
that the following exchange had occurred 
at that meeting between himself and 
Nicolella:

[A ]t that meeting, I asked 
[Nicolella], "John," I says, 
"Why are you keeping these kids 
and getting rid of me?"
He says, "Gene, these kids are 
going to be our future 
managers." And that's all he 
said.

(J.A. 83). Nicolella's remark could
conceivably be construed in more than one 
way; but a jury might plausibly interpret

as a deliberately evasive response to an 
inquiry for which he knew there was no 
legitimate response.



27
his statement as expressing a preference 
for retaining younger employees who, 
unlike workers such as respondent in their 
fifties, would still be with the company 
many years in the future.

There were seeming inconsistencies in 
the statements made by company officials 
regarding whether differences in the 
performance ratings of respondent and 
Faust had played a role in the critical 
decision. Nicolella flatly asserted that 
ratings differences had "come into play." 
(J.A. 133, 134). Sheatsley, who was 
responsible for the initial recommendation 
to lay off respondent rather than Faust, 
made no reference whatever to having 
considered ratings, but based his 
explanation solely on alleged differences 
in the experiences of respondent and Faust 
outside the area of installation work. 
(J.A. 105-06). Sheatsley's, supervisor,



28
William Sekeras, submitted a deposition 
taking an intermediate or possibly 
equivocal position, asserting that 
diversity of experience was " [t]he 
principal reason underlying Faust's 
retention", but then adding, "Also, Faust 
had slightly higher performance ratings 
than Brieck". (J.A. 14-15). Nicolella
asserted in his 1985 deposition that "Mr. 
Faust is rated higher than Mr. Brieck" 
(J.A. 133); but the 1982 memorandum on the 
basis of which Nicolella approved 
respondent's layoff asserted that he and 
Faust had the same rating. (J.A. 147-48). 
Malarich undeniably had a higher rating 
than Faust (J.A. 148) , but none of the
Harbison-Walker executives offered any 
account of why this had not helped 
Malarich when he was laid off, and Faust 
retained, several weeks after respondent 
lost his job.



29
Finally, in his July, 1985, affidavit 

Sekeras offered an entirely new 
explanation of the retention of Faust 
rather than Brieck, asserting that Faust 
had a unique expertise regarding a 
particular important type of brick 
installation:

Faust was the only installation 
specialist who had experience in 
installation work in blast 
furnace casthouses, an area that 
had been targeted by Harbison- 
Walker as a growth market and an 
a r e a  t h a t  r e p r e s e n t e d  
significant potential even 
during the 1982 period.

(J.A. 14). Had this explanation been
offered in June or July 1982, when Brieck
was first laid off, it might well have
carried considerable weight, and it is of
course possible that a jury might yet
credit it at trial. But the timing of
this new explanation might well lead a
jury to a very different conclusion. At
his March 1985 deposition Larry Sheatsley,



30
who initially selected Brieck for layoff, 
although repeatedly asked why Faust was 
retained, made no reference whatever to 
blast furnace casthouses, either as an 
area of differing expertise or as having 
any importance to the company. (J.A. 104- 
06, 111-12) . Similarly Harbison-Walker's 
personnel manager, John Nicolella, was 
repeatedly asked at his, May 1985 
deposition, the reasons for Faust's 
retention, and he too made no reference to 
blast furnace casthouses. (J.A. 131-32). 
Only in July of 1985, after the completion 
of discovery, did the company produce a 
witness to offer this new explanation.

We do not contend that any rational 
jury would necessarily see in these ever- 
shifting explanations decisive proof of 
invidious discrimination. It is at least 
conceivable that counsel for the company 
could persuade a jury that these apparent



31
inconsistencies were merely the result of 
a series of misunderstandings —  that 
Sheatsley, Sekeras, Nicolella and 
Shonkwiler simply had completely different 
reasons for arriving coincidentally at the 
same conclusion that Brieck should be laid 
off, that Sheatsley and Nicolella made a 
bona fide mistake in not realizing that 
Brieck had more seniority than Faust, and 
that Nicolella never read Shonkwiler's 
memorandum of June 17, 1982. But surely a 
reasonable jury could draw from these 
divergent accounts a very different 
conclusion, that Brieck was in fact 
selected for lay off because of his age, 
and that from 1982 to 1985 Harbison- 
Walker's supervisors concocted a series of 
explanations in search of a purported



32
j u s t i f i c a t i o n  with a p atina of 
plausibility.11

(B) Varying testimony about the 
reasons for laying off respondent rather 
than Faust would be sufficient to defeat 
the motion for summary judgment, even if 
there were no dispute about differences in 
the qualifications of respondent and
Faust. In fact, however, such disputes
abound, and in most instances are the
result of direct conflicts in the
evidence •

In his 1985 deposition Sekeras
asserted that the ratings of Faust and 
Brieck were as follows: *

1J- The lower courts have repeatedly 
r e c o g n i z e d  that such a shifting 
explanation of an employer's conduct is 
probative evidence of the existence of a 
discriminatory motive. Schmitz v. St. 
Regis Paper Co. . 811 F.2d 131, 133 (2d
Cir. 1987) ; Kilgo v. Bowman Transp. Co., 
789 F .2d 859, 875 (11th Cir. 1986).



33
Brieck Faust

1981 3 31980 2 31979 2 31978 3 4
(J.A. 15). Under the Harbison-Walker
rating system a " 3 " means "fully
satisfactory". (J.A. 133, 161). Brieck* s
supervisor during the years from 1978 to 
1981, however, testified he never rated 
Brieck lower than fully satisfactory (J.A. 
120), seemingly contradicting the 1979 and 
1980 ratings in Sekeras* affidavit. The 
Sekeras' affidavit contains no ratings for 
1982; an internal memorandum of that year, 
however, reveals that Brieck and Faust 
received the same rating in 1982. (J.A. 
135, 146). The only uncontradicted 
difference in ratings is for 1978, some 
four years before the layoffs in question, 
a gap in time that seems inconsistent with 
the tense of Nicolella's 1985 deposition 
statement that "Mr. Faust is rated higher



34
than Mr. Brieck." (J.A. 133) (emphasis 
added). In addition, Faust testified that 
he did not become an installation 
specialist until 1978 or 1979 (J.A. 152- 
53), which suggests that his 1978 rating 
of "4" was in all probability a rating for 
a job different than that which was at 
issue in the 1982 layoffs.12 Even Sekeras 
asserted only that there were differences 
in ratings in 1980 and earlier years (J.A. 
15); the contemporaneous June, 1982, 
memorandum discussing the decision to lay 
off Brieck rather than Faust, however, 
cited only their 1981 and 1982 ratings, 
suggesting that older possibly unequal 
ratings were not considered when the 1982

12 The relevance of such out-of- 
date ratings to the 1982 layoff decisions 
is further called into question by the 
fact that, only a few months before he was 
laid off, Brieck had been awarded a raise 
and a letter of commendation. (J.A. 4, 
51, 75) . The company offered no evidence 
that Faust's work had been lauded or 
rewarded in this manner.



35
decision was made. (J.A. 146). in 
August, 1982, in a written explanation of 
the decision to retain Faust, the company 
asserted to the Pennsylvania Human Rights 
Commission that Faust "has been rated very 
good to fully satisfactory in the last 
three years."13 That assertion is flatly 
contradicted by the Sheatsley deposition 
and the company's internal memorandum of 
June 1982, which indicate that Faust had 
not received a "very good" (4) rating in 
any of the four prior years.

There was also a clear conflict in 
the evidence regarding Faust's comparative 
ability, indeed his competence, to do the 
work of an installation specialist, which 
remained the bulk of his duties both in 
1982 and after he was rehired in 1983. 
Sekeras, of course, asserted in his

Deposition Exhibit 7, Deposition 
of John Nicolella.



36
affidavit that only Faust had experience 
with blast furnace casthouses. (J.A. 14). 
Brieck, on the other hand, asserted in his 
deposition that Faust was little more than 
a trainee who had never worked on an 
installation job on his own, but always 
did so in the company of one of the other 
installation specialists. (J.A. 68-69? 
see also id. at 52). If Brieck was 
correct, S e k e r a s 1 a f f i d a v i t  was 
necessarily wrong, for Faust could not 
have had unique experience regarding 
casthouses or anything else if all his 
installation experience had been acquired 
in concert with another specialist. 
Indeed, Brieck's account, if credited by a 
jury, would strongly suggest that Faust 
was the least competent employee to do the 
specialist work which remained the core of 
his position. Brieck's deposition, on the 
other hand, was directly contradicted by



37
Faust, who stated in his deposition that 
he had been sent out on his own. (J.A. 
155). Faust's deposition testimony 
regarding his experience with casthouse 
installations was somewhat opaque, 
apparently referring only to the period 
after the July 1982 layoffs, and not 
explaining clearly what work he had done 
in this area. (J.A. 150).

There was conflicting evidence, as 
well, regarding Brieck's experience and 
abilities. In an affidavit submitted in 
response to the motion for summary 
judgment, Brieck asserted he was the only 
one of the four installation specialists 
who had ever worked on international 
assignments,14 which constituted an 
important segment of the firm's business.

14 J.A. 51 ("I was the only one of 
the four installation specialists in the 
Iron and Steel Marketing Group who had 
been sent out on inter n a t i o n a l  
installation assignments").



38
(J.A. 18) . On the other hand, Sheatsley 
asserted in his deposition that others had 
worked overseas, although it is somewhat 
unclear whether Sheatsley was referring to 
other installation specialists, and there 
is no suggestion that Faust had ever 
worked on overseas projects-15 Nicollela 
asserted that Faust was retained rather 
than his older colleagues because those 
other installation specialists, Brieck 
included, could not do any thing except 
"just supervise the installation of brick 
in a steel mill". (J.A. 132). Nicollela's 
contentions were sguarely disputed by

-LD J.A. 102:
"Q: Were other individuals sent

on Overseas' assignments, or was it most 
likely Mr. Brieck who would be doing that 
in terms of the Installation Specialists 
in the Iron & Steel Market?

"A: I'll say I'm aware that
others were sent on installation 
assignments Overseas besides Mr. Brieck. 
Specifically who and when, I'd have to go 
back and check."



39
Brieck's affidavit and deposition, which 
asserted that Brieck had extensive 
experience in preparing reports and 
surveys (J.A. 52, 62), technical drawings 
(J.A. 52, 63) and marketing analyses (J.A. 
63), in analyzing technical problems which 
customers were experiencing with their 
furnaces (J.A. 60, 63), in designing the 
masonry interiors of blast furnaces (J.A. 
61), and in pricing and sales. (J.A. 52, 
58) .

There was similar disagreements about 
the nature of Faust's experience outside 
the area of installation. Sekeras and 
Sheatsley broadly characterized Faust's 
office work as administrative. (J.A. 15, 
105). Faust's deposition, however, 
suggested that, aside from preparing 
certain essentially clerical calculations 
and correspondence, his position was that 
of "gofer":



40
A. I usually do a lot of things 

that people just tell me to do. 
Like a car needs fixed, got 
something out at advertising 
that we need. Whatever. Even 
drove a forklift down the 
warehouse one time.

Q. So if somebody had to go for
something, you might have to do 
that?

A. Not have to, I would be asked
nicely to do it. I would 
volunteer.

Q. Excuse me for degrading your
role, but would part of your job 
be to be a gofer?

A. Sure. I don't mind doing that. 
It's something different.

Q. I'm not saying anything bad 
about it, but part of your job 
was to be the officer handyman?

A. Yeah. That was part of being
staff correspondent.

(J .A. 156-57). Sekeras asserted Faust had 
had "considerable contact in customer 
relations" (J.A. 14) , and in this Court
petitioner describes Faust's experience as 
"marketing" and "sales". (Pet. Br. 6, 7,
23) . In his deposition, however, Faust



41
conceded that his work as an "assistant 
correspondent" was largely limited to 
processing written orders:

Q. Were you involved in sales at 
all or was your job more or less 
to support the sales staff?

A. Support the sales staff, but I 
did have direct contact with 
customers. On the phone. Phone 
contact.

Q. What percentage of your time was 
spent in the office when you 
were a correspondent?

A. One hundred percent....
Q. Had you ever been involved in

sales in any respect during your 
employment with Harbison-
Walker?

A. No, but we feel like we are a 
part of sales. Staff support.

Q. You support the sales, but you 
yourself were never performing 
an actual sales function
yourself?

A. No....
(J.A. 152-55) . In a September 1982
response to a request for information from 
the P e n n s y l v a n i a  Human Relations



Commission, petitioner asserted that 
Faust's job duties included helping to 
"make engineering sketches and technical 
preparation and proposals." (J.A. 147).16 
In his deposition Brieck squarely asserted 
that Faust neither did nor had the ability 
to do any technical work or sketches (J.A. 
68-69), and Faust's description of his own 
experience at Harbison-Walker makes no 
mention of any such experience or ability. 
(J.A. 149-60).

There is no dispute that Faust's 
experience at Harbison-Walker included two 
positions which Brieck never held—  

assistant sales correspondent and staff 
correspondent. (J.A. 151-53). What is

16 In a letter to the Commission 
dated August 2, 1982, the company 
explained that it had retained Faust 
because he possessed "multidisciplinary 
skills in engineering." Deposition 
Exhibit No. 7, Deposition of John 
Nicolella. This explanation also seems 
inconsistent with the depositions of Faust 
and Brieck.

42



43
very much at issue, and far from clear 
from the present record, is what Faust 
actually did in those positions. 
Petitioner suggests that Faust was a 
marketing expert and administrator, with 
refined skills and broad experiences, 
while Brieck was merely a bricklayer. 
While the record is not utterly devoid of 
evidence to buttress that contention, the 
record seems on balance to provide greater 
support for a very different conclusion, 
that Faust was little more than a 
glorified gofer, less than fully qualified 
even to do the work of an installation 
specialist, and possessed only of 
rudimentary office skills which a person 
of ordinary ability could master in a few 
days. (J.A. 52-53, 68, 149-60).

(C) There are a number of important 
areas in which the underlying facts are- 
undisputed, but regarding which very



44
different inferences could reasonably be 
drawn. Petitioner offered in support of 
its motion a statistical analysis 
purporting to demonstrate that it could 
not have acted with any discriminatory 
motive. That analysis indicates that 
among the Marketing Group employees 40 and 
over only 21% were laid off, compared to 
47% of the employees under 40.17 However, 
if one examines the comparative treatment 
of the oldest employees a different 
picture emerges; in July of 1982 
petitioner laid off 60% of the employees

x/ J .A. 31-33. Petitioner laid off 
3 of 14 employees 40 and over, and 9 of 
the 19 employees under 40. For reasons 
which are not apparent on the face of the 
record, the list of laid-off employees 
annexed to the July, 1985, affidavit of 
Sekeras contains less than half the names 
set forth in a list of laid-off employees 
provided by the company in January, 1985. 
Defendant’s Response to Plaintiff's First 
Set of Interrogatories Directed to 
Defendant, Appendices A and B. The 
analysis in this note and the accompanying 
text is based on the lists attached to the 
Sekeras affidavit.



45
55 and older, but only 14% of the 
employees under 55.18 In either event the 
sample size is small, and the evidentiary 
weight of the statistics thus limited, but 
a jury might plausibly draw from the 
underlying data either of two very 
different conclusions.

The fact that almost half of the 
employees laid off in July, 1982, were 
over 55, in a unit where only 15% of the 
workers were that old, was a result of 
Harbison-Walker's decision to concentrate 
the initial layoffs on installation 
specialists, the position in which most of 
its oldest workers were to be found. Thus 
in the July layoffs the company furloughed 
3 of the 4 installation specialists, but 
only 1 of the 7 product specialists. A 
reasonable jury could draw different

18 Id. Petitioner laid off in 
July 3 of the 5 employees 55 and over, and 
only 4 of the 28 employees under 55.



46
conclusions from the record regarding why 
this occurred. Sheatsley suggested that 
the decline in the need for employees was 
particularly great in the case of 
installation specialists,19 a statement 
which, if credited by a jury, could 
provide a legitimate explanation for the 
disproportionately large number of 
installation specialists laid off. On the 
other hand, immediately after 2 of the 4 
installation specialists, aged 55 and 59, 
were laid off, Sekeras announced that
there was now a shortage of installation 
specialists and that other employees would 
as a consequence have to do installation 
work.20 Sheatsley acknowledged that,

J.A. 105 ("assistance in the
installation of our refractories was 
definitely less needed, that was a prime 
consideration").

J.A. 118 ("The heaviest impact 
was in our Marketing Support Group 

which will seriously reduce our capability
from Pittsburgh to follow installations



47
after the older installation specialists 
were laid off, it became necessary to 
direct almost all the other employees in 
the Marketing Support Group to do 
installation work.2-*- a  reasonable jury * 21

.... Sales people will be required to ... 
follow installations as required.... I 
... expect each of you to take additional 
roles and responsibilities to help fill 
the gaps.... This means you may be 
required to ... even follow installa­
tions ....")

21 J.A. 110:
"Q. Of those 32 that remained after 

the temporary furlough of the 
first 6, how many of those 32 
actually, in fact, helped in 
doing Installation Specialist 
work in the months after then?

"A. I wouldn't be able to say 
specifically, but the majority 
or nearly all or perhaps all of 
the remaining non-clerical 
personnel with the possible 
exception of Don Jamison and 
myself. So the various Product 
Managers, the various Product 
Specialists and Product Analysts 
would have all contributed in 
this installation service area.

"Q. They would actually go on the 
job site?



48
might infer from this evidence that the 
decision to concentrate the layoffs on 
installation specialists was the result, 
not of a particularly severe decline in 
installation work, but of some entirely 
extraneous consideration, such as a desire 
to remove employees in their fifties.

The decision to retain Faust alone 
from among the installation specialists 
was explained by Sekeras as being a result 
of the need for someone with Faust's 
experience as a sales correspondent. 
(J.A. 14). Yet on August 2, 1982, only 3
days after Harbison-Walker had laid off 
the last of the installation specialists 
over 40, the company laid off the only 
sales correspondent in the unit. (J.A. 
33) . A jury might well infer from that 
action that the skills of a sales

'!A. Correct."



49
correspondent were not in fact needed by 
the company at all.

Sekeras insisted that Faust was 
retained and rehired, rather than Brieck, 
because Faust's "administration and sales 
correspondent experience permitted him to 
perform other noninstallation functions in 
the reduced department". (J.A. 15). The
company's entire argument necessarily 
rests on the premise, at least implicit in 
Sekeras' statement, that company officials 
in fact beli e v e d  that whichever 
installation specialist was retained, and 
later rehired, would in fact be performing 
a significant amount of "noninstallation 
functions". Faust's deposition, however, 
revealed that in fact he spent virtually 
all of his time on installation work. 
When asked what he did in July 1982, Faust



50
mentioned only installation work,22 and 
Faust acknowledged that since being 
rehired in 1983 he had spent almost all 
his time on installation activities.23

J .A . 149-50:
"Q. Could you describe for me what 

your duties were in July of 
1982"

"A. I was assigned to the —  I was 
in the ir o n  a nd s t e e l  
department. I was assigned to 
work with Stan Pavlica on blast 
f u r n a c e  p r o j e c t s  a n d  
installations....

"Q. What were your duties when you 
worked with Mr. Pavlica?

"A. I went out on blast furnace 
installations."

23 J .A . 160:
"Q. Since coming back in August of 

*83, what has been the 
percentage of time you would 
spend on the job -- on the road 
as an installation specialist?

"A. 75, I guess, at least.
"Q. When you were involved in duties 

t h a t  a r e n ' t  a c t u a l  
installations, what duties do 
you perform now, or what duties



51

have you performed from August 
of '83 to the present date that 
have not been installation 
duties?

"A. Pretty much been related to that 
-- I write reports of the 
installation. Have to have time 
to come into the office to do 
that. I've also still done some 
work with the blast furnace 
group working on margins again. 
Doing some filing. Not much 
anymore. It's just piling up. 
But I still -

"Q. You do work with the blast 
furnace group?

"A. Right.
"Q. You do filing, and what was the 

other thing you said?
"A. Margins. Also some gofer work 

like getting drawings out to the 
works, to salesmen.

"Q. When you write reports of
installations, any installation 
specialist would have to do
that?

"A. Yes.
"Q. Even someone like Mr. Brieck— - 

someone like Mr. Brieck in his 
old duties would have had to
fill out reports regarding



52
As the third circuit properly 

recognized, Faust's description of his 
actual duties "raise a question of fact as 
to whether the employer really believed 
that Faust's 'varied' experience made him 
more qualified than Brieck to perform the 
job functions remaining in the reduced 
business environment." (Pet. App. 5a). 
The company offered in support of its 
motion for summary judgment no evidence 
purporting to explain this apparent 
discrepancy between the concerns which 
allegedly led it to retain and rehire 
Faust, and the work which Faust actually 
performed. In its brief in this Court the

installations he had been 
involved in?

"A. Correct....
"Q. What percentage of your time 

since August of '83 has been 
spent doing margins? Very small 
percentage?

"A. Small percentages [sic], yes."



53
company seems to suggest that the 
discrepancy was merely the result of an 
innocent error, that the company officials 
believed in good faith, albeit mistakenly, 
that the employee in the position in which 
Faust was retained, and subsequently 
rehired, would be spending a large portion 
of his time on noninstallation work 
requiring the past experience of a sales 
correspondent. (Pet. Br. 20, 23). A jury 
could conceivably interpret the evidence 
in that way, but it would surely be 
reasonable for a jury to infer from what 
Faust actually did after the July, 1982, 
layoff that the real reason for the 
decisions to retain and rehire Faust was 
s o m e t h i n g  other than his sales 
correspondent experience.

The instant case, in sum, is a 
classic example of the type of dispute 
which cannot be resolved, for either



54
party, by summary judgment, but must be 
submitted for resolution by the trier of 
fact, be it a judge or a jury. Genuine 
disputes about material facts are not 
merely present, they abound. This is not 
merely a situation in which a trial is 
required to resolve conflicts between the 
statements of the plaintiff and those of 
the defendant's officials; here a trial is 
necessary to resolve the conflicts among 
the statements of the company officials 
themselves. As petitioner's brief well 
illustrates, a jury which believed only 
the evidence, and drew only the 
inferences, most favorable to the company, 
might return a verdict for Harbison- 
Walker. But the contention on which 
petitioner's demand for summary judgment 
is grounded —  that "viewing 'the record 
as a whole' ... no 'rational trier of fact 
[could] find for [Respondent]' on his age



55
discrimination claim," (Pet. Br. 23-24) 
—  simply cannot be sustained.
III. THE DENIAL OF SUMMARY JUDGMENT IS

CONSISTENT WITH RULE 56 AND THE AGE
DISCRIMINATION IN EMPLOYMENT ACT
In view of the actual state of the 

record in this case, it is abundantly
clear that summary judgment could not 
properly be awarded to petitioner. 
Proceeding on the basis of its assertion 
that this is a case in which there is
literally no evidence of unlawful
discrimination, petitioner argues that the 
decision of the third circuit must be 
based on some misconception as to the 
applicable legal principles. In light of 
the actual record, the legal issues 
briefed by petitioner do not appear to be 
presented by this case. Nonetheless, we 
set forth below the general principles 
applicable to a motion for summary



56
judgment, and then address briefly the
specific arguments advanced by petitioner.
A. The Applicable Legal Standard

(i) Rule 56(c) of the Federal Rules
of Civil Procedure authorizes the entry of
summary judgment in a civil case 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.

"[A]t the summary judgment 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 
v. Liberty Lobby, Inc.. 477 U.S. 242, 249 
(1986).

If ... the proofs fail to 
exclude all bases on which 
judgment might be rendered in 
favor of the person against whom 
the motion is made, summary 
judgment must be denied. And



57
this would be true whether the 
issue is one of disputed fact or 
a question of how the trier 
would characterize admitted 
facts (e.g. as constituting 
negligence or the reverse). The 
device is not intended to 
resolve issues that are within 
the traditional province of the 
trier of fact, but rather to see 
whether there are such issues.

F. James and G. Hazard, Civil Procedure.
273 (2d ed. 1977) (footnotes omitted).
The burden of persuasion is on the moving
party, and that burden is a stringent one;
any doubts as to the existence of a
genuine issue for trial must be resolved
against the party seeking summary
judgment. Adickes v. S. H. Kress & Co,.
398 U.S. 144, 158-59 (1970).24 It may be

24 One authoritative commentator 
suggests that the procedures established 
by Rule 56 have in some instances been 
abused. 10 C. Wright, A. Miller and M. 
Kane, Federal Practice and Procedure § 
2712, pp. 582-83 (1983). A motion for 
summary judgment, like any other motion, 
must be based on a reasoned belief that it 
is well grounded in fact and warranted by 
existing law. See Rule 11, F.R.C.P.



58
of considerable importance whether a given
case, if it went to trial, would be heard
by a judge or a jury.

If the decision is to be reached 
by the court, and there are no 
issues of witness credibility, 
the court may conclude on the 
basis of the affidavits,
depositions, and stipulations 
before it, that there are no
genuine issues of material fact, 
even though decision may depend 
on inferences to be drawn from 
what has been incontrovertibly 
proved.... But where a jury is 
called for, the litigants are
entitled to have the jury draw 
those inferences or conclusions 
that are appropriate grist for
juries.

Nunez v. Superior Oil Co.. 572 F.2d 1119,
1123-24 (5th Cir. 1978).

A motion for summary judgment also 
raises issues of a constitutional nature 
where, as here, the non-moving party has 
requested and would be entitled to have 
his claims resolved by a jury if the case 
went to trial. This Court's decision in 
Weinberger v. Hvnson, Westcott & Dunning.



59
412 U.S. 609 (1973),25 suggests that a
different and more stringent standard 
should be applied where the effect of 
summary judgment would be to deny the jury 
trial requested by the non-moving party; 
at the least particularly great caution 
ought be exercised in deciding to grant 
summary judgment in such a case. Trial by 
deposition, like »[t]rial by affidavit is 
no substitute for trial by jury which so 
long has been the hallmark of 'even handed 
justice. ' " Poller v. C o l u m b i a
Broadcasting C o . , 368 U.S. 464, 473
(1962) .

The right to confront, cross- 
examine and impeach adverse 
witnesses is one of the most 
fundamental rights sought to be 
p r e s e r v e d  by the Seventh 
Amendment provision for jury 
trials in civil cases. The

"If this were a case involving 
trial by jury as provided in the Seventh 
Amendment, there would be sharper 
limitations on the use of summary 
judgment." 412 U.S. at 621-22.



60
advantage of trial before a 
live jury with live witnesses, 
and all the possibilities of 
considering the human factors, 
should not be eliminated by 
substituting trial by affidavit 
and the sterile bareness of 
summary judgment.

Adickes v. S. H. Kress & Co.. 398 U.S. 
144, 176 (1970) (Black, J. concurring)26 
If on a motion for summary judgment the 
moving party clearly establishes that it 
would be entitled to a directed verdict if 
the case went to trial, the court may, 
consistent with the Seventh Amendment, 
award judgment. But a court asked to 
grant summary judgment in a case that 
would otherwise be referred for a trial to 
a jury must bear in mind the stringent 
constitutional restrictions on the

2e> In his dissenting opinion in 
First National Bank of Arizona v. Cities 
Service Co. , 391 U.S. 253, 304 (1968), 
Justice Black expressed concern that "the 
summary judgment technique tempts judges 
to take over the jury trial of cases, thus 
depriving parties of their constitutional 
right to trial by jury".



61
authority of judges to impinge on the 
factfinding authority of juries, and be 
alert to any possibility that the record 
that would be presented at trial might 
differ from the record on which summary 
judgment is sought.

(ii) This Court admonished in
Hutchinson v. Proxmire. 443 U.S. Ill, 120 
n. 9 (1979), that a question regarding the 
state of mind of an individual "does not 
r e a d i l y  lend itself to summary 
disposition."27 That unavoidable

27 See also White Motor Co. v. 
United States. 372 U.S. 253, 259 (1963)
("[sjummary judgments ... are not 
appropriate 'where motive and intent play 
leading roles'"); Poller v. Columbia 
Broadcasting System. 368 U.S. 464, 473
(1962) ("We believe that summary judgment 
procedures should be used sparingly in 
complex antitrust litigation where motive 
and intent play leading roles, the proof 
is largely in the hands of the alleged 
conspirators, and hostile witnesses 
thicken the plot") (footnote omitted). 
The holding in Hutchinson is consistent 
with the practical judgment of the lower 
courts, which have repeatedly found 
summary judgment inappropriate in cases



62
limitation on the utility of summary 
judgment procedures arises for two 
distinct reasons. First, where the 
individual whose state of mind is at issue 
is still alive, and there is reason to 
believe that either party will call him to 
testify at trial, uncertainties about the 
demeanor and credibility of that witness 
will ordinarily preclude the granting of 
summary judgment. Because such a witness 
is the only person with personal knowledge 
of his or her own state of mind, a trier 
of fact is likely to rely very heavily on 
the credibility of that witness' 
testimony.

[A] court should be cautious in 
granting a motion for summary 
judgment when resolution of the 
dispositive issue requires a 
determination of state of mind.

involving a dispute about the knowledge or 
state of mind of an individual. 1QA C. 
Wright, A. Miller & M. Kane, Federal 
Practice and Procedure. § 2730 (1983)
(citing cases).



63
Much depends on the credibility 
of the witnesses testifying as 
to their own states of mind. In 
these circumstances the jury 
should be given an opportunity 
to observe the demeanor, during 
direct and cross examination, of 
the witnesses whose states of 
mind are at issue.

Croley v. Matson Navigation Co.. 434 F.2d 
73, 77 (5th Cir. 1970). "[TJhe manner of 
the [witness] while testifying is often 
times more indicative of the real 
character of his opinion than his words."
Wainwright v. Witt. 469 U.S. 412, 428 n. 
9 (1985). The certainty that no one else 
could directly contradict his testimony 
may lead such a witness to exaggerate or 
misrepresent his state of mind; if the 
witness is a party, or connected with a 
party to the proceeding, the dangers of 
relying on his statements at the summary 
judgment stage are particularly great.

Second, disputes regarding the state 
of mind of an individual frequently depend



64
on indirect and circumstantial evidence 
about whose significance reasonable people 
may well disagree. "[T]he question facing 
triers of fact in discrimination cases is 
both sensitive and difficult.... There 
will seldom be 'eyewitness' testimony as 
to the employer's mental process." U. S , 

Postal Service Bd. of Govs, v. Aikens, 460 
U.S. 711, 716 (1983). Where the
difficulty in resolving a factual question 
is especially great, the possibility that 
a court will be able to conclude that 
there is no genuine issue about the proper 
resolution of that question is likely to 
be particularly small.

The a d m o n i t i o n  in Hutchinson 
exemplifies the broader problem that 
arises whenever summary judgment is sought 
in a case to which the demeanor of a 
witness might be relevant, or even 
critical. In any case of that sort a



65
judge asked to rule on a motion for 
summary judgment will ordinarily have no 
way of knowing the nature of the demeanor 
evidence that would be presented at 
trial.28 The judge's avoidable ignorance
regarding that evidence will not
invariably be fatal to a motion for
summary judgment. The existence of
necessarily unknowable demeanor evidence, 
like the existence of unexamined 
documentary evidence, would bar the entry 
of summary judgment only if the nature of 
that evidence could alter the outcome of 
that case. There could, of course, be a 
case in which "cross examination of the

This limitation is analogous to 
the posture of an appellate court asked to 
review a cold record to determine the 
sufficiency of the evidence to support a 
decision made, at least in part, on the 
basis of demeanor. See Anderson v. 
Bessemer City. 470 U.S. 564, 575 (1985);
Wainwright v. Witt, 469 U.S. 412, 428
(1985); Patton v. Yount. 467 U.S. 1025, 
1038 and n. 14 (1984).



66

[deponent or affiant] ... would be 
futile." Arnstein v. Porter. 154 F.2d 
464, 470-71 (2d Cir. 1946). If in a
wrongful death action, for example, the 
defendant both asserted that it had a 
witness who had seen the alleged decedent 
alive and well long after his purported 
death, and then actually produced the 
alleged decedent in court during the 
hearing on its motion for summary 
judgment, the plaintiff could not of 
course avoid the granting of the motion by 
insisting that cross-examination at trial 
might convince the trier of fact that the 
defense witness was lying.

There will, on the other hand, be 
cases in which the necessary absence of 
demeanor evidence will preclude the 
granting of a motion for summary judgment. 
"Where ... credibility is, or may be 
crucial, summary judgment becomes improper



67
and a trial indispensable." Gales v. 
Chesapeake & Ohio Rv, Co. . 46 F.R.D. 36,
40 (W.D. Va. 1969).29 If the moving party 
offers affidavits or depositions from 
w i t n e s s e s  whose t r u t h f u l n e s s  or 
reliability are disputed by the opposing 
party, the court at the summary judgment 
stage will not be able to rely on the 
statements of those witnesses. "[T]he 
mere fact that the witness is interested 
in the result of the suit is deemed 
sufficient to require the credibility of 
his testimony to be submitted to the jury 
as a question of fact." Sartor v.

The 1963 Advisory Committee 
note to Rule 56 observes:

Where an issue as to a material 
fact cannot be resolved without 
observation of the demeanor of 
witnesses in order to evaluate 
their credibility, summary 
judgment is not appropriate.

10 A C. Wright, A. Miller & M. Kane, 
Federal Practice and Procedure. § 2726, p. 
115 (1983); see generally id. at 113-21.



68
Arkansas Natural Gas Corp., 321 U.S. 620, 
628 (1944). Where witnesses with personal 
knowledge of one or more critical facts 
offer statements in support of the motion, 
the court must consider the possibility 
that the demeanor evidence might convince 
the trier of fact, that the witnesses were 
unreliable, or even that their statements 
were the opposite of the truth.30 A 
deponent or affiant, if called to testify 
in open court, might "convince all who

30 A witness1 bearing on the stand 
may convince a jury

"not only that the witness' 
testimony is not true, but that 
the truth is the opposite of his 
story; for the denial of one, 
who has motive to deny, may be 
uttered with such hesitation, 
discomfort, a r r o g a n c e  or 
defiance, as to give assurance 
that he is fabricating, and 
that, if he is, there is no 
alternative but to assume the 
truth of what he denies."

Dver v. MacDouaall. 201 F.2d 265, 269 (2d
Cir. 1952) .



69
hear him testify that he is disingenuous 
and untruthful, and yet his testimony, 
when read, may convey a most favorable 
impression." Untermeyer v. Freund. 37 F. 
342, 343 (S.D.N.Y. 1889). The court must
bear in mind as well that cross- 
examination of a witness at a deposition 
may not be the equivalent of cross- 
examination at trial, both because the 
circumstances of a trial, including the 
presence of a judge or jury, might make a 
witness more forthcoming,31 and because

x F. James and G. Hazard, Civil 
Procedure. 275 (2d ed. 1977):

"There may be a chance that 
persons who are willing to 
p e r j u r e  themselves in an 
affidavit and even in the 
informal atmosphere of a 
deposition may be impelled by 
the formal trappings of trial 
and the personal presence of the 
judge to tell the truth. When 
summary judgment is granted, 
this chance is lost.... The 
strongest case for affording 
this ... chance probably exists 
where all the facts are within



70
the non-moving party may be in a better 
position to examine the witness at trial 
in light of additional evidence that was 
discovered only after the original 
deposition, or which emerged only during 
the trial itself.* 32

the exclusive knowledge of the 
movant."

Pinson v. Atchison, T. & S.F.R. Co.. 54 F.
464, 465 (W.D. Mo. 1893):

"It is sometimes difficult and 
impossible to get so full, 
explicit and perspicuous a 
statement from the witness 
through a deposition as it is by 
his examination before court and 
j ury."
32 10A C. Wright, G. Miller & M.

Kane, Federal Practice and Procedure, §
2727, pp. 120-21 (1983)

"[W]hen the knowledge of the 
events or occurrences on which 
the action is based lies 
exclusively within the control 
of the party moving for summary 
judgment . . . most commonly in 
actions in which the main issue 
involves the movant's state of 
mind ... [cjourts have been 
r e l u c t a n t  to deprive the 
n o n m o v i n g  p a r t y  of the



71
The history of racial discrimination 

l i t i g a t i o n  well i l l u s t r a t e s  the 
correctness of the admonition in 
Hutchinson v. Proxmire. Over the course 
of the last three decades there have been 
literally thousands of federal court, 
state court, legislative and judicial 
f i n d i n g s  of i n t e n t i o n a l  racial 
discrimination. Yet in a great many of 
these instances the perpetrator, or one or 
more of its employees or agents, offered 
sworn testimony that no such invidious 
motives were involved. So far as we are 
aware there is not a single instance in

opportunity of testing the 
credibility of the movant or his 
witnesses in open court.... 
'there is a justifiable judicial 
fear of the injustice which 
could result from judgment based 
on affidavits asserting facts 
that are, because of their 
nature, incapable of being 
effectively controverted.'"

(footnotes omitted).



72
which any one of these witnesses was 
prosecuted for perjury, although it seems 
difficult to avoid the conclusion that 
much of this testimony was not truthful. 
We do not, of course, suggest that perjury 
prosecutions ought to become a regular 
adjunct to civil rights cases, and we do 
not ask this Court to hold that summary 
judgment may never be granted to a 
defendant charged with intentional 
discrimination. But in applying Rule 56 
the courts must bear in mind that undue 
credulity in accepting sworn protestations 
of innocence in discrimination cases 
would, if indulged in in the past, have 
e m a s c u l a t e d  the s t a t u t o r y  and 
constitutional prohibitions against 
purposeful discrimination, and that such 
credulity in the future would have an 
egually untoward effect.



73
B. Petitioner's Legal Arguments

(i) Petitioner repeatedly objects 
that the statements made by Brieck in his 
affidavit and deposition —  statements at 
times in direct conflict with the 
affidavit and depositions of company 
officials —  were "self-serving". (Pet. 
Br. 7, 8, 16 n.10). That is not an
accepted basis for objecting to the 
statements of a witness in connection with 
either a trial or a motion for summary 
judgment. This is, after all, not a 
business school seminar on a hypothetical 
problem in microeconomics, but a lawsuit 
between parties who by definition have a 
direct material stake in its ultimate 
outcome. Parties do not ordinarily 
volunteer statements in the course of 
litigation unless those statements advance 
their own interests, and employees of a 
corporate defendant have substantial



74
reasons to want to provide testimony that 
will suit the purposes of, and please, 
their employer; in that sense almost all 
of the statements in the instant record 
were self-serving. Petitioner objects in 
particular to deposition testimony by 
Brieck that he was more skilled and better 
qualified than Faust; but having worked 
with Faust for years, Brieck certainly had 
substantial personal knowledge of their 
comparative skills, and was entirely 
competent to testify abut the matter. The 
company is, of course, free to argue to 
the jury that Brieck's testimony should be 
deemed unreliable because of his interest 
in the case, or to emphasize that possible 
source of bias in cross-examination, but 
petitioner cannot ask a court, in the 
context of a motion for summary judgment, 
to resolve such credibility issues in



75
advance of, and indeed in lieu of, any
trial.

(ii) The company argues, in the
alternative, that the statements of its
own witnesses —  the very management 
employees alleged to have violated federal 
law —  must be deemed absolutely and 
unimpeachably credible. Petitioner frames 
its contention in the context of an 
interesting, but somewhat implausible, 
hypothetical situation. If in an ADEA 
case a plaintiff were to adduce no 
evidence of discrimination other than that 
he had been laid off while a younger 
employee was retained, and if the 
defendant were to offer an affidavit or 
deposition testimony asserting that the 
decision had been made on a specified non- 
discriminatory basis, petitioner insists 
that a court would be required, as a 
matter of law, to grant summary judgment



76
for the defendant, unless the plaintiff 
were to come forward with additional 
evidence. (Pet. B r . 14-19). On
petitioners view that defense affidavit 
or deposition would have to be treated as 
conclusive, regardless of whether it was 
self-serving, and despite the fact that 
the trial court would have had no 
opportunity to observe the demeanor of the 
affiant or deponent. This hypothetical 
problem, of course, is not presented by 
the instant case, for the record here 
contains a broad array of other evidence, 
some favorable to petitioner, and some 
s u p p o r t i n g  respondent's claim of 
discrimination.

Petitioner grounds its argument about 
this hypothetical case on Texas Department 
of Community Affairs v. Burdine. 450 U.S. 
248 ( 1981) , which sets forth the
allocation and order of presentation of



77
proof in the trial of a discrimination 
claim. Under Burdine a plaintiff may 
establish a prima facie case of 
discrimination by adducing evidence that 
he was available and qualified for the 
position, and was rejected under 
circumstances which give rise to an 
inference of unlawful discrimination, 450 
U.S. at 253; in an age discrimination 
layoff case, the courts below correctly 
recognized, such a prima facie case can be 
established by proof that a plaintiff in 
the protected age group was laid off while 
an employee under 40 in the same position 
was retained. (Pet. App. 2a, 3a, 15a) .
Once a prima facie case has been 
established, the burden shifts to the 
defendant to adduce "evidence that the 
plaintiff was rejected, or someone else 
p r e f e r r e d ,  f o r  a l e g i t i m a t e ,  
nondiscriminatory reason." 450 U.S. at



78
254. If the defendant does so, the burden 
shifts back to the plaintiff "to persuade 
the trier of fact that the proffered 
reason was not the true reason for the 
employment discrimination". 450 U.S. at 
256.

Petitioner's analysis is for several 
reasons inconsistent with the holding in 
Burdine. The heart of petitioner's 
argument is that the effect of defense 
evidence articulating a legitimate reason 
for the disputed decisions is to eliminate 
any genuine issue of fact regarding the 
discrimination claim, unless the plaintiff 
proceeds to introduce additional evidence 
of a very specific nature. (Pet. Br. 17- 
18) . But Burdine held squarely to the 
contrary, explaining that the result of 
the introduction of such defense evidence 
was to "rais[e] a genuine issue of fact as 
to whether [the defendant] discriminated



79
against the plaintiff." 450 U.S. at 255. 
Burdine does not attribute to defense 
evidence of a legitimate reason the 
d e c i s i v e  s i g n i f i c a n c e  urged by 
petitioner.33

Second, Burdine insisted that the 
purported legitimate reason be contained 
in admissible evidence, rather than a 
pleading or argument of counsel, and 
admonished the trier of fact to carefully 
scrutinize " [t]he sufficiency of the 
defendant's evidence" offered to rebut a 
prima facie case. 450 U.S. at 256. When 
petitioner discusses a hypothetical 
situation in which there is no evidence

JJ Similarly, in U.S. Postal 
Service Bd. of Govs, v. Aikens, 460 U.S. 
711 (1983), this Court held that the
effect of the introduction of evidence 
rebutting a prima facie case was not to 
compel dismissal of a case, but to require 
"the factual inquiry [to] procee[d] to a 
new level of specificity," and to put the 
trier of fact "in a position to decide the 
ultimate issue in the case." 460 U.S. at 
714.



80
other than the ages of the two employees 
and the articulation of a "legitimate 
reason", it posits a case which quite 
literally could never occur. There will 
in fact always be additional evidence; the 
court necessarily will also know something 
about the job at issue, and the defendant 
witness will assert, not an unnamed 
"legitimate reason", but some specific 
identified reason. A court presented with 
a motion for summary judgment or a trier 
of fact will always have at least some 
basis for evaluating the proffered 
explanation, and in certain cases might on 
that basis entertain serious or even fatal 
doubts about its authenticity. If in this 
case, for example, Sekeras had claimed in 
his sworn deposition that he had chosen to 
retain Faust rather than Brieck because of 
a then recently published horoscope, that 
preposterous but non-discriminatory



81
explanation would on petitioner’s view 
have required the entry of summary 
judgment for the company, although no 
sensible judge would have granted such a 
motion.34

Finally, petitioner insists that a 
plaintiff should not be permitted to 
defeat a motion for summary judgment 
merely by relying on his prima facie case 
and the possibility that the trier of 
fact, after observing the demeanor of the 
witness who had executed the affidavit or 
gave deposition relied on by the 
defendant, might conclude that the witness 
was lying. Burdine squarely holds that, 
if a discrimination case goes to trial, 
the trier of fact may indeed reject an

34 "[T]he witness' ... story itself 
may be so internally inconsistent or so 
implausible on its face that a reasonable 
factfinder would not credit it." Anderson 
v. Bessemer City. 470 U.S. 564, 575 
(1985) .



82
explanation as pretextual solely on the
basis of the prima facie case and the lack
of credibility of the witness offering the
employer's justification:

[P]laintiff's initial evidence 
... and inferences properly 
d r a w n  t h e r e f r o m  may be 
considered by the trier of fact 
on the issue of whether the 
defendant's explanation is 
pretextual. Indeed, there may 
be some cases where the 
plaintiff's initial evidence, 
combined with effective cross- 
examination of the defendant 
will suffice to discredit the 
defendant's explanation.

450 U.S. at 255 n.10. Burdine stressed
that a plaintiff may prevail, inter alia
"by showing that the employer's proffered
explanation is unworthy of credence." 450
U.S. at 2 56.35 At trial the evidence on
which such a showing might be made could

Similarly, the Court held in 
U.S. Postal Service Bd. of Govs, v. Aikens 
that it was for the trier of fact to 
decide regarding the evidence "whatever 
weight and credence it deserves." 460 
U.S. at 714 n. 3 (1983).



83
well be the demeanor of the witness, if he 
"fidgets when answering critical 
questions, his eyes shift from the floor 
to the ceiling, and he manifests all other 
indicia traditionally attributed to 
perjurers". Anderson v. Liberty Lobby, 
Inc.. 477 U.S. 242, 270 (1986) (Rehnquist, 
J., dissenting). An employer may insist 
that its star witness is the paragon of 
truthfulness sought by Diogenes, but the 
trier of fact might conclude that the 
witness more closely resembles automobile 
publicist Joe Isuzu. If, as Burdine 
holds, a proffered explanation could be 
rejected largely or solely on the basis of 
credibility, it necessarily follows that a 
plaintiff would ordinarily be entitled to 
a trial at which he could attack the 
credibility of that witness and provide 
the trier of fact with an opportunity to 
observe the demeanor of that witness. The



84
decisive weight which petitioner seeks to 
accord to such defense testimony —  

regardless of its credibility —  is 
squarely contrary to the intent of the 
framers of Rule 3 01 of the Federal Rules 
of Evidence.36

This is not to say, as petitioner 
suggests, that summary judgment will never 
be available in discrimination cases. In 
such cases, as in all other judicial 
proceedings, there is invariably a body of 
clearly undisputed facts, and in some

36 The Advisory Committee note to 
Rule 301 states in part:

"The so-called 'bursting 
bubble' theory, under which a 
presumption vanishes upon the 
introduction of evidence which 
would support a finding of the 
nonexistence of the presumed 
fact, even though not believed, 
is rejected as according 
presumptions 'too slight and 
evanescent' an effect.

(Emphasis added). Federal Civil Judicial 
Procedure and Rules, 274 (1987 ed.).



85
instances those facts might be sufficient 
to warrant the granting of a motion under 
Rule 56. In the instant case, for 
example, if Harbison-Walker had had prior 
to 1982 a written, uniformly and 
r e p e a t e d l y  e n f o r c e d  rule g i v i n g 
preferential treatment in layoffs to 
whichever worker had held the largest 
number of different positions at the 
company —  a rule whose existence could in 
all probability have been established by 
reference to objective facts raising no 
issues of credibility —  summary judgment 
might well have been appropriate. But 
where, as here, an employer chooses, or is 
compelled by the nature of the evidence, 
to hang its hopes on the statements of one 
or more witnesses that they made the 
disputed employment decision for some 
legitimate, non-discriminatory reason, 
Rule 56 does not authorize a court



86
presented with a motion for summary- 
judgment simply to ignore the possibility 
that those witnesses are lying, or to 
attempt to assess the credibility of the 
witnesses without having had any 
opportunity to observe their demeanor.

(iii) Petitioner asserts, finally, 
that the claims in this case amount to 
little more than an attack on the 
company's "business judgment," contrary to 
the intent of Congress that "management 
prerogatives ... be left undisturbed" to 
the extent no unlawful discrimination is 
involved. (Pet. Br. 7, 10, 19 n. 13) We 
do not suggest that Congress intended the 
fair employment laws to turn federal 
judges into captains of industry. The 
statutes which prohibit intentional 
discrimination do not make it a federal 
offense for a company to make business 
judgments which are mistaken, silly, or



87
financially suicidal; an employer foolish 
enough to do so may, if it acts in good 
faith, deliberately prefer incompetence to 
competence, corruption to honesty, or 
mendacity to truthfulness. But neither 
the intent of Congress to leave untouched 
neutral albeit mistaken business 
decisions, nor impassioned invocation by a 
defendant of the importance of management 
prerogatives, can prevent a federal court 
from considering whether in a particular 
case a disputed action was in reality 
taken for invidious reasons. Texas Dept, 
of Community Affairs v. Burdine. 450 U.S. 
at 259.

Petitioner appears to contend that a 
finding of purposeful employment 
discrimination, if based in part on proof 
that the plaintiff was better qualified 
than the individual actually hired, 
promoted or retained, would have the



88
effect of making innocent and unavoidable 
errors of business judgment a violation of 
federal law. On this view a plaintiff in 
an ADEA or Title VII suit cannot offer 
evidence that he or she was better 
qualified than the employee who actually 
won or kept the desired job. This is, of 
course, precisely the opposite of the 
position taken by the defendant employer 
in Patterson v. McClean Credit Union. No. 
87-107 which maintains that a plaintiff in 
an employment discrimination case must 
offer such evidence of his or her superior 
qualifications.37 We maintain that the 
correct rule is an intermediate one,38

3' Brief for Respondent, No. 87- 
107, pp. 41-46.

The Court noted in Texas Dept, 
of Community Affairs v. Burdine that 
evidence that a rejected applicant was in 
fact better qualified than the individual 
hired, retained or promoted "may be 
probative of whether the employer's 
reasons are pretexts for discrimination." 
450 U.S. at 259.



89
t h a t  e v i d e n c e  of c o m p a r a t i v e  
qualifications may be offered by either 
party in an employment discrimination 
action, that the presence or absence of 
such evidence is not as a matter of law 
either necessary or sufficient to 
establish the existence of unlawful 
discrimination, and that the weight to be 
accorded evidence of this sort must be 
evaluated by the trier of fact in the 
context of all the other circumstances of 
the case.
c - The Role of Discretion in Disposing

of Motions for Summary Judgment
Rule 56 accords to the district court 

a degree of discretion to deny a motion 
for summary judgment if the judge believes 
that the "just, speedy, and inexpensive 
determination" of a case would be 
facilitated by permitting the case to go



90
to trial.39 Under Rule 50(a), which 
permits a judge to grant a directed
verdict, it is a common practice for 
judges to defer action on a motion for a 
directed verdict and wait until the jury 
has r e t u r n e d  its verdict. The
considerations which militate in favor of 
postponing action on a motion for a
directed verdict will at times be
applicable to a motion for summary 
judgment.

Whenever a district judge grants a 
motion for a directed verdict without 
awaiting the jury's verdict, he or she 
runs the risk that the order, if
overturned on appeal, will have had the

39 10 C. Wright, G. Miller & M.
Kane, Federal Practice and Procedure, §
2728, pp. 187-88 and n. 11 (1983) (citing 
cases); cf. Kennedy v. Silas Mason Co., 
334 U.S. 249, 257-58 (1948) (although
summary judgment might technically be 
possible, in some cases "good judicial 
administration" requires that case be 
tried on the merits).



91
effect of postponing the trial, and 
possibly precipitating a second appeal, 
thus significantly delaying the final 
disposition of the case, and substantially 
increasing the burdens on the judiciary 
and parties alike. If, as a district 
judge believes, there is indeed too little 
evidence to support a verdict for the non- 
moving party, it is extremely likely that 
a jury would return a verdict in favor of 
the moving party, thus greatly simplifying 
the issues on appeal, and quite possibly 
discouraging any appeal at all by the non­
moving party. If, on the other hand, the 
propriety of a directed verdict is a close 
question, the odds that the jury might err 
in its verdict may be higher, but so is 
the danger that an order directing a 
verdict will be overturned. For these 
reasons the decision whether to defer 
action on a motion for a directed verdict



92
often depends greatly on the length of the 
trial proceedings that lie ahead. Where 
only a few days of trial are involved, the 
very small amount of time and energy that 
could be saved by directing a verdict is 
likely to be outweighed by the substantial 
delays and unnecessary cost that will be 
involved if the decision to direct a 
verdict is overturned? a brief trial 
brings the proceedings to an end, and will 
entail far less time and energy than would 
be involved in the preparation of trial 
and appellate court briefs, and the 
drafting of judicial opinions at both 
levels. Conversely, where a long and 
expensive trial is still in the offing at 
the close of the plaintiffs' case, the 
court ought to be substantially more



93
willing to run the risks inherent in 
ordering a directed verdict.40

The substantive issue raised by a 
motion for summary judgment is similar to 
that posed by a motion for a directed 
verdict. Anderson v. Liberty Lobby, Inc.. 
477 U.S. at 250, 251 (1986).41 Professor

4U The desirability of deferring 
action on a motion for a directed verdict 
until the jury has first returned its own 
verdict is discussed in 9 C. Wright and G. 
Miller, Federal Practice and Procedure. § 
2534, p. 586 (1971) (citing cases); 5A
Moore's Federal Practice f 50.05[3] (1988).

41 The d i f f e r e n c e s  in the 
procedural posture of these motions may 
cut both ways in the district court1s 
decision as to whether to await the 
verdict of the jury. Because a motion for 
summary judgment comes prior to the 
presentation of the plaintiff's case, the 
length of the possibly unnecessary case 
will be longer than would be true on a 
motion for a directed verdict; conversely, 
at the summary judgment phase the court 
will often have a less complete 
understanding of the case than would be 
true after the close of the plaintiff's 
case, particularly regarding demeanor 
evidence, and thus runs a greater risk of 
error if it grants the motion.

The substantive standards for



94
Moore has observed:

The delay and waste that result 
from improper handling by the 
district court of the motion for 
summary judgment bears a certain
resemblance to the delay and __
waste from the improper handling 
of the motion for directed 
verdict.... It is a waste of 
judicial resources if tremendous 
time and energy must be spent by 
a party resisting a motion for 
summary judgment either to
convince the district court that 
the motion should be denied, or 
where the district court has
granted the motion, in obtaining 
a reversal.

6 Moore's Federal Practice 5 56.02 [10],
p. 56-46 (1987). A district court
presented with a motion for summary
judgment ought in deciding how to act on 
that request exercise the same discretion,

granting a motion for summary judgment and 
a motion for a directed verdict may differ 
to some degree. See 10 C. Wright, G. 
Miller and M. Kane, Federal Practice and 
Procedure. § 2713, pp. 617-20 (1983); cf. 
Dombrowski v. Eastland. 387 U.S. 82, 84 
(1967) (evidence sufficient to withstand 
motion for summary judgment, although not 
necessarily sufficient to support jury 
verdict for non-moving party).



95
for essentially the same reasons, that
would be appropriate if a directed verdict
were requested in the proceeding.

Summary judgment, with ever- 
lurking issues of fact, is 
a l w a y s  a t r e a c h e r o u s  
shortcut.... Such relief is 
always discretionary, and in 
[some] cases ... sound judicial 
administration dictates that the 
court withhold judgment until 
the whole factual structure 
stands upon solid foundation of 
a plenary trial where proof can 
be fully developed, questions 
answered, issues clearly focused 
and facts definitively found.

Petition of Bloomfield S.S. Co.. 298 F.
Supp. 1239, 1242 (S.D.N.Y. 1969)

[E]ven though the summary 
judgment standard appears to 
have been met, the court should 
have freedom to allow the case 
to continue when it has doubt as 
to the wisdom of terminating the 
action prior to a full trial....
This is especially true if 
d i s p o s i n g  of the summary 
judgment motion would require as 
much time as a full trial on the 
merits; in the event Rule 56 no 
longer serves the purpose of 
s a v i n g  the c o u r t ' s  and 
litigant's time.



96
10A C. Wright, G. Miller & M. Kane, 
Federal Practice and Procedure. § 2728,
pp. 188-92 (1983) (footnotes omitted).42
Judge Frank a generation ago admonished, 
"The district courts would do well to note 
that time has often been lost by reversals 
of summary judgments improperly entered." 
Doehler Metal Furniture Co. v. United 
States. 149 F.2d 130, 135 (2d Cir. 1945).

We do not contend that action on a 
motion for summary judgment should 
automatically be deferred until after 
trial, even if the trial is likely to be a

42 Elliott v. Elliott. 49 F.R.D. 
283, 284 (S.D.N.Y. 1970) (summary judgment 
"is intended to economize the court's 
time, and its purpose is totally 
frustrated if determination of the motion 
would require as much time as a full trial 
on the merits"); First Nat. Bank v. Cities 
Service Co.. 391 U.S. 253, 304_ (1968) 
(Black, J., dissenting) ("summary judgment 
... took 11 years.... It certainly would 
not have taken one-tenth of that much time 
to give the case a full-dress trial. An 
excuse for summary judgments has always 
been that they save time").



97
short one; we suggest only that the 
decision whether to do so ought be made in 
a deliberate and informed manner. In a 
case where a Seventh Amendment jury has 
been requested, deferring action until the 
j u r y  has s poken may avoid the 
constitutional issues that would be raised 
if summary judgment were granted; a jury 
verdict in favor of the moving party, if 
challenged on appeal, would ordinarily 
raise only non-constitutional issues.

This case, we urge, illustrates the 
need for such a carefully considered 
exercise of discretion. The instant 
controversy involves a modest number of 
witnesses and documents; it could have 
been tried in a few days after the 
completion of discovery in 1985. Had the 
jury accepted the interpretation of the 
evidence advanced by petitioner in this 
Court, its verdict in favor of the company



98
would in all likelihood have ended the 
litigation. Had the jury returned a 
verdict for plaintiff, and the defendant 
filed the necessary motions for directed 
verdict and judgment n.o.v., the appeal 
which followed would have raised virtually 
the same issues and have been heard at 
virtually the same point in time, as the 
instant appeal regarding the motion for 
summary judgment. By choosing instead to 
grant the motion for summary judgment, the 
district court risked what may prove to be 
three years of unnecessary appellate 
litigation in order to avoid a trial of as 
many days. If this Court had before it 
both the verdict of a jury and the 
judgment of the trial court as to the 
sufficiency of the evidence, the Court 
would be in a position to bring this 
litigation to a close. Because, however, 
the district court opted to rule on the



99
motion without awaiting a jury verdict, 
this Court, like the court of appeals,
must now remand the case for the trial
that could have occurred in 1985, and
perhaps for a second round of appeals as 
well.



100
CONCLUSION

For the above reasons the judgment 
and opinion of the third circuit should be 
affirmed.

Respectfully submitted,

JAMES H. LOGAN*
Logan & Logan 
307 Fourth Avenue 
Pittsburgh, PA. 15222 
(412) 765-0960

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
ERIC SCHNAPPER

NAA.CP Legal Defense and 
Educational Fund, Inc. 

99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Respondent
*Counsel of Record

June, 1988



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177