Arthur Hollander v. American Cyanamid Company

Thus, stаtutory language. the in back into law, the definitional section of a readily banc court acknowledges the ambi- when to accomplishes do so what .the stat guities that characterize operative lan- passed do, ute was to preserves the formal guage part of the relevant of the PLRA. boundaries between the branches of gov But when the court looks at the definition- ernment, and makes the parse? definition law, al section of the it deems itself bound * * * by the words used without considering the Because I believe the reading given to possibility patently true this case— — this statute the in banc court distorts that the are definitions themselves ambig- language, presumes a unlikely most con- if, uous. It dealing is as when with defini- gressional intent, improperly seeks to de- tions, legislative language were necessarily questions law, and, cide of state most clear and therefore had to be read as if it important, grievous does damage to the were, despite manifest abuse of words formal lines that separate the coordinate that such reading entails. branches of government our and does it instead, I suggest, would that definition to purpose whatsoever, no I respectfully parts statute, al aof like rest of the dissent from most of the court’s reason- statute, be given must their ordinary ing. agree Because I with the court on meanings, when such meanings make why the case must be to remanded sense, context, but must be read in their court, join I Part IV of its opin- with a view toward the the stat mischief ion. And despite what I be- because— addresses, ute when the seemingly ordi lieve to be a profoundly incorrect discus- nary meanings lead to statements sion—there is little in the court’s actual are—to put mildly linguistically unnat — result that reach, I would not also I con- ural. The definition of “relief’ in the cur in its judgment.36 PLRA, purports to include in relief “consent decrees” and to exclude also from

relief “private agreements,” settlement

makes sense. no It is bizarre because (awkward

even if “consent might decrees”

ly as the in banc recognizes) be relief, termed “agreements” are simply not HOLLANDER, Arthur Plaintiff- a form of relief. And to hence exclude Appellant, be, them would if that is what the defini v. means, tion an exercise in surplusage and AMERICAN COMPANY, CYANAMID in futility.35 Read to make sense and read Defendant-Appellee. light cured, to be mischief definitional section must mean that Docket No. 98-7502. relief to be barred the future includes United Statеs Court Appeals, all relief available under pursuant to Second Circuit. consent decrees but does not include that which is pursuant available or to relief Argued Dec. 1998. private settlement agreements. Such an Decided March 1999. elision readily would be assumed in read ing the operative language of a statute if it

were needed to make the statute make

sense. Why should it not equally be read earlier, 35. As suggested I legislature can tell supra See note 21. us to treat a way banana the same as an apple. But if it say seems to that a banana is apple, we should try hesitate figure out what it really say. meant

matter, more the case having remanded in order to allow eight ago than additional limited to conduct Cyan v. American discovery. Hollander (2d Cir.1990). Co., Hol amid 895 F.2d 80 the dis appeals principally from lander a claim for asserting missal of his action Age of the in violation age discrimination Act Employment Discrimination (ADEA), § et. He also seq. 29 U.S.C. Cyanam- appeals partial grant from the portions to strike various of his id’s motion memo support submitted in of his affidavit Cyanamid’s mo opposition randum in The district summary judgment. tion for ground on the court dismissed the suit was insufficient Hollander’s evidence create an inference that dis of his criminated him because See Hollander v. American (D.Conn.1998). Co., For below, we affirm. the reasons stated

I. Background Cyan- began his career with Hollander compa- at the employee amid in 1956 as an (Mon- ‍‌​​‌​‌​​​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‍Hackensack, Heinze, NJ Mark F. Wallingford, facility. Connecticut He ny’s Marchisio, Lamb & of Monaghan, aghan, сompany the was 30 old. He left Counsel), Plaintiff-Appellant. for returned in 1973 to assume Zakarian, Hartford, (Day, CT Albert Manager Management Engi- of of position Schwartz, Howard, A. Berry & Daniel facility in neering at Lederle Counsel), Marks, of for Defen- Keith S. River, At the time of his Pearl New York. dant-Appellee. rehire, he FEINBERG, CALABRESI Before: Management Engineer- Manager As SOTOMAYOR, Judges. Circuit yearly progress received a Hollander ing, that rated his supervisors from his review Judge CALABRESI concurs in the areas. The re- specific ability several Court, also files a opinion of comments that elabo- also included views separate opinion. ratings. supplemented upon rated FEINBERG, Judge: Circuit show that reviews Hollander’s his crea- consistently impressed Arthur appeals Plaintiff from job. He also to his commitment tivity and grant summary judgment in the increases, bonuses salary regular United States District Court for the Dis- received However, progress Connecticut, options. trict of and stock Eginton, Warren W. reviews, were conducted four J., in favor of Cyan- defendant American over the course supervisors Company. amid As different writing, of this Cyanamid, re-employment lander’s case has been in the federal courts consistently percep- documented the for more than also years. is This also has an abrasive man- time second tion this court has heard and a difficult agement style personality rated him as improvement” “needs in the (hereinafter collectively referred to as “in- “communication,” areas of “human rela- terpersonal problems”). Hollander’s 1974 tions,” “personnel development,” “leader- that he review noted had “created some ship” and “organizing/staffing.” Duckett ” antagonism ‘shooting hip.’ from the elaborated: “[improve- His 1976 review stated that major problem is a [Hollander’s] total establishing higher ment is needed in lack comprehension of the vital neces- with middle management confidence sity properly considering all of the communicating they on a level which un- appropriate functional groups which derstand.” Hollander’s 1977 review rated must be comple- involved successful him improvement,” as “needs the lowest tion and execution of complex projects. possible rating, in the category of “commu- He leaves a “trail of wreckage” of inter- nication,” and noted that Hollander needed personal departmental and inter rela- understanding to “be more of ... manag- tionships which eventually inhibit problems antagonistic.” ers’ and less success of the projects. He seems to 1978, he improve- was rated as “needs ignore the “people vital function” almost ment” in both “communication” and “hu- completely, and doesn’t comprehend this man The relations.” review commented effect. operates He like a “one man improvement Hollander needed “in gang” which is not acceptable in a com- following communications lines” and that plex, multi-functional team oriented tendency go anyone over “[t]he who business. immediately does not respond must be changed.” While Hollander’s January addition, In Hollander’s overall perfor- 1980 review rated him “consistently ac- mance year for that was rated as “needs ceptable” categories in the of “communica- improvement,” the possible second-worst relations,” tion” “human the perceived rating.1 overall problems in his returned December 1980 Cyanamid terminated Hollander in Jan- review, in which he was again once rated uary time, 1984. At the he was as improvement” “needs in those catego- old.2 He given was six months of sever- ries. ance pay and was told that his manage- 1981, Cyanamid In transferred Holland- profile ment would be circulated within er to facility its Davis & Geek in Danbury, Cyanamid to determine if a different divi- Connecticut, appointed him Manager sion was interested in his services. Hol- of Medical Devices. The change of set- lander discharged was permanently in Au- however, ting, did not alter the pattern gust 1984. Just before that —in July established in Hollander’s earlier reviews. 1984—he filed discrimination com- His 1981 review rated him as “needs im- plaints with the Connecticut Commission provement” in “human relations.”' In on Human Rights Opportunities 1982, he received a “needs improvement” (CCHRO) and the Equal Opportunity Em- rating relations,” in “human “safety,” and (EEOC). ployment Commission “maturity & judgment.” The review noted that projects “several are not getting prop- In October Hollander sought em- er attention interpersonal because of rela- ployment Ethicon, Inc., with a medical de- tionship problems.” vice manufacturer competitor Cyan-

Hollander received his worst review in аmid. Hollander offered to show Ethicon 1983, in which supervisor Robert Cyanamid Duckett a film demonstrating the appli- only possible The worse rating overall was 57 when he was terminated. 999 at “consider for termination.” regard 254. We do not the difference as significant, figure. and use Hollander's 2. Hollander January claims that was 58 1984. The district court said Hollander was retaliation as to Hollander’s judgment manufactur- to suture automation cation of However, the panel Id. at 85-86. Cyanam- claim. to contact Ethicon which led ing, court had erred film. that the district and the also held both regarding id Cyanamid to stating compel it refused to when wrote it iden- interrogatory asking Ethicon would be incon- answer employment his agreement employee over non-competition tify management-level each with sistent offer to employment and that his of 40 whose with signed he had infringed Cyanam- the film been terminated since 1983. show Ethicon mention- Without rights. accordingly The remand- proprietary panel id’s Id. at 85. non-competition agreement case, ing the discov- deeming ed the additional film, informed Ethicon dispute over Hollander the ery necessary op- to allow him offering not be that it would gather statistical evidence portunity position. “might pattern uncover a of older which Cyan- ... employees leaving management suit in Hollander filed August circumstances, unexplained under amid Court for States District the United ... might help prove his claim Connecticut, claiming that District of discharge for his Cyanamid’s explanation him in violation discharged panel Id. at 84. The pretextual.” Cyanam- that- He also claimed the ADEA. completion following noted that “if at Ethi- employment to his opposition id’s discovery, the court finds that initial com- for the was retaliation con issue genuine not established a lander has before the CCHRO brought he had plaints Cyan- ... suggesting fact of material and, such, was a second and the EEOC pretex- discharge amid’s of Hollander ADEA. Hollander further of the violation tual, summary judgment enter Cyanamid’s alleged retalia- contended Id. at 85. Cyanamid.” ... tortious interference amounted to tion under Connecticut expectancy a business remand, his expanded Hollander After Cyanamid’s that Finally, alleged law. addi- discovery to include several efforts and state anti- violated federal practiсes requests pro- interrogatories and tional on prohibitions law laws and state trust interrogatory the single other than duction Hollander later practices. unfair trade Cyan- When prior appeal. at issue on the trade antitrust and unfair dropped the not to additional respond amid did claims. practices a Motion to Com- filed requests, Hollander Recommending de- and for Sanctions. grant- pel court the district In March 1994, Mag- the motion in November summary judg- nial of motion for ed Judge Thomas P. Smith istrate ADEA claims. The noted ment on Hollander’s discovery of an “received to Hollander had had failed held that Hollander court magistrate’s in this unprecedented extent his and his a nexus between show years,” and “well of over 15 Cyanam- experience hаd failed to link discharge, and the Second contemplation of beyond the to Holland- regarding Ethicon conduct id’s decision, magistrate Circuit’s charges with filing er’s of discrimination toward fairness interpreted great Because Hol- has and the EEOC. the CCHRO rec- adopted The district court disposed claims been [him].” federal lander’s the district ommendation. summary judgment, by remaining Hollander’s court also dismissed for sum- moved April interference claim for law tortious state claims and judgment on Hollander’s mary jurisdiction. lack strike, Fed. inconsistent with to as ‍‌​​‌​‌​​​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‍moved 56(e), the affi- portions of court, certain of R.Civ.P. judgment to this appeal On support in had submitted af- part, in davit court was vacated the district to sum- opposition memorandum of his remanded. part firmed Cyanamid’s motion mary judgment. court’s panel The affirmed the (2) record, granted part strike was and denied in knowl- first-hand court part; the district struck numerous edge work, of his own Cyanamid’s records portions of Hollander’s ac- affidavit practices, alleged personal and the court, cording contained “inadmissi- Cyanamid’s witnesses, knowledge hearsay, generalized conclusory ble Hollander’s description of statistical argumentative statements, informa- evidence. and/or tion which could not be to plain- attributed We will not disturb a district personal knowledge.” tiffs grant court’s of a motion to strike unless 256. The court not everything did strike manifestly erroneous. Cf. Luciano v. Ol argued was inappropriate (2d Cir.1997). sten Corp., 110 F.3d and, insofar as some of the por- stricken correctly notes that some of the quoted tions or paraphrased other evi- provisions stricken were mere summaries court, properly dence before the properly evidence included elsewhere in the court separately considered evi- That, however, the record. does lead dence. Id. The granted Cyanamid’s conclusion Hollander desires be for summary judgment motion on the cause, noted, already that evidence was claim, holding ADEA that Hollander’s evi- separately considered the district court. dence did not create an inference that Hollander, 999 F.Supp. at 256. Holland him be- er’s remaining contentions are without of his age. cause Id. at 260-61. Having merit. The district court was correct in again claim, dismissed Hollander’s federal holding that the affidavit “flagrantly disre the court again also his state dismissed garded] the requirements 56(e),” of Rule claim for tortious interference for lack of was “riddled with inadmissible hearsay, jurisdiction. Id. at 261. appeal This fol- conclusory statements and arguments, and lowed. clearly information not made on affi- personal

II. ant’s knowledge,” Discussion and “more re- semblefd] adversarial memorandum A. Motion to Strike Portions Holland- than a bona affidavit.” Id. The court fide er’s Affidavit acted well within its discretion striking 56(e) Rule states that: the inappropriate portions of the affidavit. [supporting and opposing affidavits shall be personal made on knowledge, B. Hollander’s ADEA Claim shall set forth such facts as would be evidence, in admissible and shall show The ADEA employers forbids affirmativеly that the compe- affiant is from discriminating hiring, discharge, or to testify tent to the matters stated setting “compensation, terms, of condi therein. tions, privileges of employment” based A therefore portions strike of upon the age employee. of an 29 U.S.C. an affidavit that are not upon 623(a)(1); § based see also Hazen Paper Co. v. personal affiant’s knowledge, 604, 609, contain inad- Biggins, 507 1701, U.S. 113 S.Ct. hearsay missible or make generalized (1993). and 123 L.Ed.2d 338 The ADEA cov conclusory See, statements. e.g., United ers the of class individuals like Hol who? States v. Private lander, Industry Sanitation 40, are age over the of 29 U.S.C. Ass’n Nassau/Suffolk, Inc., 631(a), § 44 F.3d evidentiary and the framework of 1082, (2d Cir.1995). 1084 ar- for proving age discrimination under the gues that the district court erred in strik- statute is the same as that proving ing portions оf his affidavit because the discrimination under Title VII. See Ras provisions (1) stricken were Wyatt Co., 55, (2d sum- kin v. harmless 125 F.3d maries or Cir.1997). conclusions Thus, incorporating discov- disparate a treatment ery materials contained in the case elsewhere like this one we follow the three-step, 1988). first forth in This court held Hollander’s burden-shifting analysis set Green, that he a appeal prima had established v. Douglas Corp. McDonnell summary judg facie case for of 1817, purposes 36 L.Ed.2d 668 93 S.Ct. U.S. ment: he was 58 old when (1973) dis Community Dep’t and Texas Af charged, qualified perform was to his Burdine, 248, 101 S.Ct. 450 U.S. v. fairs Devices, (1981). Manager of Medical and his Briefly, the 67 L.Ed.2d were re allegedly assigned duties to two First, plaintiff is as follows. analysis (Richard placements, the first of whom a facie case dis prima must establish Augsbach) apрroximately eight The burden then shifts to the crimination. (Felix younger months and the second Es- case prima to rebut the facie employer Hollander, posito) years younger.3 See non-discriminatory legitimate, a providing 895 F.2d at 83. plaintiff The then reason for its actions. that the rea opportunity

has the show Legiti- Articulation of a by the was not its employer son offered mate, Non-Discriminatory Reason reason, ques true was. The prima Since Hollander established a fa- tion that must be asked is whether case, cie the burden shifted to shown, by a plaintiff preponderance has legitimate, to articulate a non-discriminato- evidence, that he has been the victim ry discharge. Cyanamid reason ‍‌​​‌​‌​​​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‍for his Thus, discrimination. the “ultimate to the points interpersonаl problems that persuading burden of the trier of fact consistently were documented in Holland- intentionally the defendant personnel er’s reviews. also plaintiff remains at all times claims that Hollander had to be removed Burdine, 450 U.S. at plaintiff.” project poor from a because of his inter- (citations omitted) (em 253, 101 S.Ct. 1089 skills, personal and that his strained rela- phasis supplied). employees supervised tions with certain he representation. caused them to seek union Prima Facie Case 1. Hollander’s prima To facie case attempts establish brief discrimination, put Hollander had show show that failed to forth a (1) within the protected age legitimaté, non-discriminatory reason for (2) (3) group, qualified job, discharge. argues he was for the his that the disсharged, discharge failing he was district court erred in to strike as hearsay violative of the best evidence giving occurred under circumstances rise deposition testimony to an inference of See rule the of various age discrimination. including Davis & Cyanamid employees, 895 F.2d at 83. The burden of Seal, Director of Gill Per proof Operations that must be met to establish Geek prima O’Shaughnessy facie case is minimal. See Director John Cham sonnel Department employee Personnel Robert Copy Corp., bers v. TRM Ctrs. (2d D’Andrea, Cir.1994); supported Cyanamid’s which 37 Dister v. Continental (2d 1108, contention, however, Inc. 859 F.2d 1114 Cir. stated reason. This Group, discrimination, give complaints filed his not rise to an inference of 3. Hollander 1984, July EEOC at CCHRO Caterers see O'Connor v. Consolidated Coin being by 1307, performed 312-13, his former was 308, time Corp., U.S. S.Ct. 116 57-year Augsbach. argues old Hollander ("In age-discrimi- 134 L.Ed.2d Augsbach "floating'' temporary that was a context, nation such an inference [that replacement, replacement and that his true age] based on can- employment decision was however, Esposito. Esposito, was did not replacement of one not be drawn from the apply position Cyanamid a until even for at insignificantly with another worker worker working began November for the summary judg- younger.”), for on motion company Although the in March 1985. re- ment, light facts we must construe the in the "insignifi- placement of Hollander with an plaintiff. most favorable cantly younger” Augsbach person would like First, evidence, much not merit discussion. does Hollander was a victim of age opinion court’s after the district remand discrimination. For the reasons stated be- not the challenged did refer to statements low, agree. we at all appear and did not to consider rely on concluding Cyanamid them in that a. Hollander’s non-statistical evidence sufficiently a legitimate, articulated non- Various items up catego- made first discriminatory reason for Hollander’s dis- ry of evidence on which Hollander relies. Further, charge. this court in Hol- held Hollander offered affidavits from former appeal Cyanamid lander’s first stating co-workers that he was not diffi- satisfied its burden of producing a non- cult to work with and not have been diseriminatory motive for Hollander’s ter- responsible for the alleged unionization in- mination. See at by cident Cyanamid. cited Hollander also Finally, even if the district court did err in stressed the fact depositions at his statements, failing to strike these there 1986 and Duckett not could remem- evidence, ample other documented in single ber a event that led to the scathing reviews, year year after progress from 1983 review of Hollander in which Duckett

which to Cyanamid conclude that had fur- wrote that Hollander left a “trail of legitimate nished a reason with adequate wreckage” regard to interpersonal rela- specificity. Accordingly, addition, tionships. In Hollander offered error, any, court’s if in refusing to strike letters from employees Cyanamid challenged statements —in- was harmless. cluding complimenting his ef- Duckett — 3. Hollander’s Attempt to Show that he forts as Manager of Medical Devices. Age is a Victim Discrimination We need not decide whether Cyanamid’s articulation legitimate, of a enough offered evidence to es non-diseriminatory brings reason us to tablish that allegedly used his what the district court called “the heart of poor interpersonal pretext skills as a this case”—whether Hollander presented its true reason for terminating him. As sufficient evidence for a jury reasonable did, suming arguendo that he this is far conclude matter, from the end for to survive against him because of his summary judgment Hollander had to show F.Supp. at 257. put forth two only pretext, but also either use aof categories of evidence in support of his pretext implies a discriminato itself position. First, he offered evidence to re- ry stereotype, prеtext or use to hide but non-discriminatory reason age This, discrimination. he did not do. by raising a question of fact as to whether This court was presented with a similar actually he had interpersonal problems; in situation in Fisher v. words, College, other Vassar Hollander attempted to show (2d Cir.1997) (en banc) (Fisher F.3d 1332 Cyanamid’s stated reason for his dis- — III), denied, U.S. -, charge cert. 118 S.Ct. pretextual and itself constitut- (1998). ed proof of 139 L.Ed.2d 752 Second, Fisher discrimination. he III, offered plaintiff Cynthia Fisher which, statistical asserted evidence from argued, a claims of sex and discrimination reasonable after jury could infer that being denied tenure her former em discriminated against him be- cause of his age. ployer, College. argued Vassar While the Vassar district court found that the tenure evidence thаt Fisher was denied because of a submitted lander “may in scholarship, fact her teaching raise some review that found doubt as to whether [Cyanamid’s] leadership and service to the ability, col articulated reason for discharging believable”, him deficient. an lege attempt is to be 999 F.Supp. it reason was pretextual, held that that Vassar’s no reasonable show jury could conclude evidence that based that Fisher offered upon contradicted proffered certain conclusions the review. The reason was false does not nec- court, trial, district after a bench conclud essarily mean that the true motive was in v. College, F.Supp. ed Fisher Vassar illegal the one argued by the plaintiff. (S.D.N.Y.1994)(Fisher I) that Vassar 114 F.3d at 1337-38. unlawfully Fish against had The district court in this case reached er on the of her A panel basis sex. of this conclusion, the ‍‌​​‌​‌​​​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‍same and we court, however, agree with reversed the district court. (2d that the court did not commit College, Fisher v. Vassar 70 F.3d 1420 Cir.1995) (Fisher II). Thereafter, First, reversible doing error in the en so. assum- ing arguendo banc Fisher III reached the same alleged Hollander’s in- panel result as the did in Fisher II be terpersonal problems were by Cyan- used cause Fisher’s evidence did not show that amid as a pretext for the company’s true Vassar’s stated reason for denial of tenure termination, reason for pretext his a pretext discrimination 071 and of itself does not suggest age discrimi- for basis her sex or a dis nation. Had itself reflected claimed that it III, criminatory stereotype. Fisher 114 tеrminated Hollander because of a charac- majority F.3d at 1333. The en banc opin teristic stereotypically associated with ion that a “plaintiff may prevail only stated example, because he was “unable —for if an employer’s proffered reasons are keep up with the times”—and had Hol- discrimination, shown to be a pretext for lander shown that pretextual, reason to be either pretext because the finding itself our might conclusion be different.4 The points to discrimination or because other perception that Hollander interperson- evidence in the points record in that di problems al almost from the outset —noted 1339; rection —or both.” Id. at see also of his re-employment by Cyanamid —does Quaratino Co., Tiffany v. & 64 not reflect such stereotypical thinking. (2d Cir.1995) (“An employer’s reason for Second, nothing else in the record points termination cannot proven pre be to be a to age discrimination as the real reason for text for discrimination unless is shown to Hollander’s termination. As we noted in be false and that discrimination was the III, Fisher an employer may give a false reason.”). real While produced Fisher had explanation terminating employee some evidence of pretext, neither the pre which, order to mask the true reason text nor the record pointed the conclu though petty, spiteful or ignoble, otherwise sion that Vassar had discriminated is not unlawful. Hollander overlooks this her on the basis of her sex. Elaborating, by statеment of the law contending that if majority of the en banc court stated in Cyanamid’s preferred reason Fisher III that is not to be believed, then the true reason for his ter- discrimination does not lurk behind ev- mination must have been his Howev- ery inaccurate statement. Individual er, put proof any forth no decision-makers intentionally dis- age-related remarks or actions toward him semble in order to hide a reason that is by Cyanamid personnel, admitted that non-discriminatory unbecoming but or small-minded, his explicitly never raised as a back-scratching, such as log-rolling, factor in horse-trading, institutional his termination. If reliance on politics, envy, person- Hollander’s nepotism, spite, alleged interpersonal problems hostility short, al ... In the fact that the pretext repeat was indeed a we —and court, 4. As noted permit offered insufficient evidence to lander at 253 n. despite "copious” amount of supervisors poorly an inference who case, discovery in this non-statis- interpersonal actually rated his skills believed tical attacking evidence truthfulness of they adequate; were Hollander’s affidavit termination is reason for his only opinions evidence shows of his co- weaker than offered pretext the evidence of workers, supervisors. his not those of Fisher, Fisher. Id. at 3. Unlike n. 202 holding

we are not so before of The sec- category employees. record mated” —the evidence, may body us shows that the stated reason have ond of statistical which Hol- evidence,” pretext “title-switching been a lander calls the for various won-discrimina- study was Hollander’s own of tory is not a in which reasons.5 This case which, claims, jus- personnel directories reasonably a finder of fact could conclude was, age tifies an of discrimination. inference that Hollander’s termination more not, probably age than due discrimina- argues that the Hollander dis other, non-discriminatory tion because no trict usurped jury by court the role of the explanation possible. The district of, weighing strength ultimately many possible concluded “of the both rejecting, bodies evidence. Our inconsistencies, reasons for Cyanamid’s il- reading opinion, of the district court’s how legal discrimination likely is no more ever, is that the court determined that the reason than any other.” 999 probative evidence was not at all Therefore, F.Supp. at 259. agree. We against discrimination Hollander. A dis was not error for the district court to hold trict court’s discretion in choosing whether that this evidence not permit did the infer- or not to admit evidence is broad. See ence that 1804-1, Long United States v. Local Int’l because of his (2d Assoc., 1091, 44 shoremen’s F.3d 1095 Cir.1995). evidence, any Like other b. Hollander’s statistical evidence opinion expert of an is immune from are thus left with question We the relevance requirement of Rule 401 of whether Hollander’s statistical evidence the Federal Rules of Evidence. See Unit prevent was sufficient to the grant of sum Khan, (2d ed States v. mary judgment. As this court has held in Cir.1986). Indeed, a district court must cases, several disparate treatment рlain act as a gatekeeper to exclude invalid and tiffs introduce statistics as circum expert unreliable testimony. See General See, stantial evidence of discrimination. Joiner, Elec. Co. v. 522 U.S. 118 S.Ct. e.g., Dep’t Stratton v. Aging, 132 512, 517, (1997); Raskin, 139 L.Ed.2d 508 (2d Cir.1997); Hollander, F.3d. 125 F.3d at (rejecting, 65-66 in ADEA at F.2d 84. Hollander offered two case, plaintiffs argument that district bodies of such evidence to the district court “usurped jury” the role of the when court. The first was a analysis statistical it held expert’s inadmissible statistical re report prepared Dr. Marie port Gau- of employer’s promotion and termi (the dard, Ph.D. Gaudard Report), practices). a statis nation We therefore review professor tics at University the district ruling New court’s for abuse of dis Hampshire. Joiner, analyzed Gaudard the termi сretion. See 118 S.Ct. at 517. nations of managerial employ (i). The Report Gaudard is, ees jobs whose were eliminated —that employees who were terminated because begin We with the Gaudard Re positions Cyanamid their at ceased to exist First, port. Gaudard plotted, in 10-year and were theoretically replaced. never groupings, age distribution Cyanam- Gaudard claimed to a high degree id managers compensated salary level (level statistical certainty, 4-) was a determining higher “9” and during peri factor in “job the terminations of this elim- od 1984-19896. The Report suggests that action, example 5. One possible of a non-discrimina- which he considered tory "insubordination,” apparent reason is the friction between "out of line” and to meet incident, Hоllander and Duckett. In one with Hollander and memorialize it in an in- (unknown Duckett) lander sent Duckett’s ternal memorandum. superior a copy of a memorandum Hollander wrote to Duckett's disagreeing Duckett 6. We are provided informed that the data particular by Cyanamid decision to permitted remove him from analysis for 1984, 1985, project. sufficiently displeased Duckett was 1987 and only. manag- 9+/age managers, in 40+ Gaudard was left decrease level 9 + percent a five involuntarily with 245 who had been termi- during that time is evidence age ers 50-59 terminations did not oc- nated because had eliminated that (the However, jobs “job group). in an manner. their eliminated” age-neutral cur “job of Gaudard made this Report’s group the inference discrimination eliminated” of the is the solely company-wide sample on the basis raw numbers statistical any analysis. in the absence of at- her She claimed that the impermissible statisti- observing many “job for other causes of the cal likelihood of as tempt account age anomaly. managers ages 50-59 See Wards Cove eliminated” terminations of Atonio, 642, 657, Packing v. 490 U.S. 55-69 as was observed over the three rele- Co. (1989) 2115, 104 L.Ed.2d 733 vant time periods 109 S.Ct. referred to above “is zero,” showing virtually of causation between (requiring and with a “conclude[d] ‍‌​​‌​‌​​​​​‌​​‌‌​​​‌‌‌‌‌​​​​‌‌​‌​‌​​​‌‌‌​​‌‌​​‌‌‍practice alleged high degree certainty the and the of statistical that challenged Raskin, ‘job age-neutral 125 F.3d at 67-68. eliminated’ was not an ter- disparities); mination reason.” in attempt part Gaudard made no this of many to examine how + Report the level 9 However, Report the conclusion of the 50-59 left volun- managers age that argument underlies Hollander’s here tarily many from 1984 to or how depends on a misleading age grouping that people age grouping applied in that to impermissibly skews the data in Holland- that Cyanamid during period. Highlight- II, er’s favor. See Fisher at 1443 F.3d ing expla- Gaudard’s failure to account for (a plaintiff may gerrymander data than the nations other discrimination is result). order to achieve a desired In age fact that both the 60-69 70-79 10-year age contrast to the groupings moderately level 9+ workforce increased the of Report, “job rest the Gaudard’s short, years7. over the course of those analysis 15-year eliminated” uses the by the presented part data Gаudard this grouping ages Cyanam- of 55-69 to show any of the does not make it more Report allegedly discriminatory id’s termination likely or less is liable for course, pattern. grouping, That encom- age discrimination. passes age at the time he was fired —58. A close of the examination part Report The second of the is also data, however, managers shows that it was although sophisti- flawed somewhat more jobs age 60-69 who had their eliminated at analyzed the cated. Gaudard terminations higher manag- a much rate than all other Cyanamid managers age over ers, including those In other age 55-59. salary level “9” compensated words, job it is the eliminations in the 60- (level higher 9+/age managers) 40+ dur- segment age grouping of the 55-69 1981-1991, ing periods 1981-1984 and for the disparity аccounts between numerical termination Using 1984-1989. managers age eliminations for 40-55 and corresponded codes that to the reason for Thus, those 55-69. we believe termination, each Gaudard excluded from concluding district court did not err in analysis her employees who were volun- Report was not suffi- Gaudard tarily terminated for such “res- reasons ciently probative discrimination “other ignation,” employment” and “relo- summary judg- Hollander to defeat involuntary cation.” She also excluded ment. terminations for such reasons as “unsatis-

factory performance” and “insubordina- Title-Switching ii. The Evidence retirements, Finally, tion.” she excluded body The second of statistical evi group deaths and terminations. From the group approximately Hollander was his own original 1300 level offered dence noting age group employees during It is also worth 40-49 within — period, greatest 1984-1989 increase in persons covered the ADEA. class of Cynamid's level 9+ workforce occurred in personnel directories, study Cyanamid’s fy reversal. We conclude that the dis- “title-switching” evidence. According trict striking court did not err in portions the directories show that 26 of they Hollander’s affidavit because were positions Cyanamid out of the 245 that not on plaintiffs personal based knowl- “job coded as eliminated” still exist. He edge, hearsay contained inadmissible approximately claims that half of those 26 statements; conclusory made positions were employees signifi- filled lander’s evidence was insufficient to create cantly younger than those who pur- were an inference that defendant discriminated portedly “job eliminated.” He thus con- against him because of his The judg- that a cludes number of managers whose is, ment therefore, of the district court “job terminations were coded as eliminat- affirmed. actually ed” were terminated because of their age replaced by younger employ- CALABRESI, Judge, Circuit

ees. concurring: agree We with the district court that unreliability problems are also present in join I the panel’s opinion in full. I write the title-switching evidence. The district separately only to note in appropriate court correctly pointed out that Hollander circumstances, evidence of discrimination offered no showing evidence that thе so- against one group people can support an younger replacements called actually per- inference of against discrimination another form the same duties as the terminated group. For example, if statistical or other managers whom allegedly mis- evidence indicated that an employer dis- “job characterized as eliminated.” against Asian-Americans, criminated By at 260. failing place Asians, Chícanos, African-Americans, directories, text of the which continue to it might be reasonable to deem that evi- list titles similar or identical to some of dence relevant to a claim that eliminated, those same claims were within any context, employer sort of had against factual discriminated Holland- а Na- er is unable to show that younger tive American or a Nigerian. This would employees in positions those truly are re- especially be so if the available data were placements. The district point- court also insufficient to pattern establish a of behav- ed out “plaintiffs study fails to ac- ior toward the plaintiffs class specifically, count for the fact that of those 26 [so- might as be the case if plaintiff replacements], called roughly half ... only been the Native American or Niger- were aged 40 or older.” Id. Finally, the ian in the employ. defendant’s Because district court noted that the evidence does nothing in panel’s opinion precludes not consider the possibility that even if the use of the statistical evidence such a Cyanamid mischaracterized the posi- case, I concur. eliminated,” tions “job it terminated the employees performed who jobs those

non-discriminatory reasons. Id.

Accordingly, we hold that the district

court acted within its discretion holding

the statistical evidence inadmissible be- jury

cause no reasonable could infer from

Hollander because of his age.

Conclusion

We have all of Hollander’s considered justi- they do

arguments, and find

Case Details

Case Name: Arthur Hollander v. American Cyanamid Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 29, 1999

Citation: 172 F.3d 192

Docket Number: Docket 98-7502

Court Abbreviation: 2d Cir.