Keller v. Orix Credit Alliance

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit

11-24-1997

Keller v. Orix Credit Alliance
Precedential or Non-Precedential:

Docket
95-5289

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Recommended Citation
"Keller v. Orix Credit Alliance" (1997). 1997 Decisions. Paper 264.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/264

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Filed November 24, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 95-5289

FREDERICK F. KELLER,
Appellant

v.

ORIX CREDIT ALLIANCE, INC.

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

D.C. Civil No. 93-03466

Originally Argued: March 6, 1996

Before: MANSMANN, ALITO, and LEWIS, Circuit Judges

Reargued In Banc: April 16, 1997
Before: SLOVITER, Chief Judge, and
BECKER, STAPLETON, MANSMANN, GREENBERG,
SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and
MCKEE, Circuit Judges

(Opinion Filed: November 24, 1997)

Edwin M. Baum, Esq. (Argued)
James Robert Pigott, Jr., Esq.
SOLOMON, ZAUDERER,
ELLENHORN, FRISCHER & SHARP
45 Rockefeller Plaza
New York, New York 10111

Steven L. Lapidus
ROBINSON, LAPIDUS & LIVELI
Two Penn Plaza East
Newark, New Jersey 07105

Attorneys for Appellee

Debra L. Raskin (Argued)
Anne L. Clark
VLADECK, WALDMAN, ELIAS &
ENGELHARD, P.C.
 1501 Broadway
New York, New York 10036

Attorneys for Appellant

OPINION OF THE COURT

ALITO, Circuit Judge:

Frederick F. Keller sued his former employer, ORIX Credit
Alliance, Inc., in federal district court, asserting claims
under the federal Age Discrimination in Employment Act
("ADEA"), 29 U.S.C. S 621 et seq., and the New Jersey Law
Against Discrimination ("NJLAD"), N.J.S.A. S 10:5-1 et seq.
Keller, who had served as executive vice president and a
member of the board of directors, claimed that ORIX Credit
Alliance had discriminated against him based on his age
when it failed to promote him to the position of chief
operating officer and later terminated his employment. The
district court granted summary judgment for ORIX Credit
Alliance. A panel of this court issued a decision reversing
the district court, but ORIX Credit Alliance's petition for
rehearing en banc was granted, and we now affirm.

2

I.

A.

Background of the Parties and the Dispute. ORIX Credit
Alliance is a subsidiary of companies that are in turn
subsidiaries of ORIX Corporation, a Japanese company.
App. 385-86, 616. ORIX Credit Alliance is a commercial
finance company that is engaged primarily in the business
of financing the acquisition or leasing of equipment. Id. at
310. ORIX Credit Alliance generally must borrow the funds
needed to support the financing it provides for its
customers. Id. In simple terms, the company makes a profit
by borrowing funds at one rate and then lending to its
customers a higher rate. Id. at 80.

Frederick Keller was born on January 31, 1942. App.
610. After college, he was hired by Franklin National Bank
and eventually handled its relationship with Credit Alliance
Corporation, ORIX Credit Alliance's predecessor. Id. at 611.
In 1976, Credit Alliance Corporation hired Keller as a vice
president, and in that capacity he shared the primary
responsibility for raising funds for the company. Id. at 612,
1121. Keller obtained funding from banks, helped to
supervise "the commercial paper program," and worked on
"other sources of funding." Id. at 1120-21. The then-
chairman of the company has described Keller's work as
"excellent," and after several years, Keller was promoted to
senior vice president of finance. Id. at 614.

In December 1984, First Interstate Bancorp acquired
Credit Alliance Corporation's parent company, and Credit
Alliance Corporation continued to do business as First
Interstate Credit Alliance Corp. App. 613. After this
acquisition, First Interstate Bancorp provided most of the
funding used by First Interstate Credit Alliance Corp. for its
lending activities, and therefore it was no longer necessary
for Keller to raise money. Id. at 614. Keller acquired the
titles of executive vice president, chief financial officer, and
chief credit officer, and he served as a member of the
company's board of directors. Id. 70-71, 1121. In 1988, the
chairman of the board of First Interstate Credit Alliance
Corp. told Keller that he had been considered for the

3

presidency of the company but that Daniel Ryan had been
selected. Id. at 1121.

In September 1989, ORIX subsidiaries acquired First
Interstate Credit Alliance Corp., which continued to do
business under the name of ORIX Credit Alliance. App. at
616. Prior to the acquisition, Keller and six other key
executives were requested to sign employment contracts
with the new company, and Keller signed a three-year
contract for employment at a substantial annual salary. Id.
at 616, 644.

After this acquisition, Keller was given the responsibility
for raising funding for ORIX Credit Alliance. App. 78. At
that time, according to Keller's affidavit, "Credit Alliance
had approximately 1.6 billion in debt outstanding to First
Interstate Bancorp, 1.3 billion of which was to continue to
be provided on a temporary basis. Because it was the goal
of Credit Alliance to obtain funding independent of First
Interstate Bancorp and of ORIX Corp. or ORIX USA[an
ORIX subsidiary] [Keller] determined that it would ultimately
be necessary for Credit Alliance to have available credit
facilities totaling approximately 1.5 billion dollars." Id. at
616-17 (emphasis added). Keller stated that he
communicated this goal to the board of directors at "[m]ore
than one meeting." Id. at 15.

Keller's Failure to Meet the $1.5 Billion Goal and His
Explanations. This goal, however, was never met or even
approached. Keller himself stated in his deposition that
"Credit Alliance never achieved the goal for funding that
[he] had communicated to the board of directors." App. 16.
Indeed, he acknowledged that, at all times from September
1989 (the time of the ORIX acquisition) to April 1, 1993 (the
time of his termination), funding provided by First
Interstate Bancorp and ORIX affiliates constituted more
than 50% of ORIX Credit Alliance's funding. Id. at 81-82. In
December 1991, $785 million in credit facilities was
available to ORIX Credit Alliance. App. 13. By September
1992 -- approximately when the initial decision to
terminate Keller was made -- the total available bank lines
had dropped to $695 million. Id. at 48. After September
1992, Keller did not secure any increase in bank lines. Id.
at 24-25.

4

While Keller does not dispute that he failed to meet or
approach the financing goal, he claims that this was due to
factors beyond his control. See Appellant's Br. at 8-11, 35-
36; App. 617-32 (Keller Affidavit). For example, Keller
explained that ORIX Credit Alliance was unable to launch
a "commercial paper program," as he had projected,
because "there were many obstacles to obtaining a
sufficiently high credit rating to permit Credit Alliance to
issue and sell commercial paper on favorable terms." App.
618. Among these, he stated, "were the absence of any
guarantee by ORIX Corp., and the growing weakness of the
Japanese economy which would affect Credit Alliance's
parent." Id. Keller summarized these problems in memos
that he sent to Ryan. Id.

Keller likewise provides a plethora of reasons for his
failure to secure bank lines of credit. He cites the
company's credit rating, "the perceived `downturn in the
equipment financing industry' . . . [,] Credit Alliance's
statistics for `past dues' or untimely payments from its
customers and other aspects of its portfolio . . .[,] bank
`environment[s] . . . not conducive to risk of any sort' . . .[,]
and bank limitations on lending to financing companies . . .
or to companies outside a particular geographical area,"
"the negative impact of the recession in the United States
and Japan during the late 1980's and early 1990's and the
resulting reluctance of American banks to `book loans,' "
and "banks' reluctance to lend to a company having a
Japanese parent, given the negative economic situation in
Japan at the time." App. 620-21.

During this same period, when Keller was allegedly
unable to raise funds by means of a commercial paper
program or bank lines of credit, Keller repeatedly expressed
opposition to raising funds by "asset-backed securitization,"
a process that involves the sale of accounts receivable or
loan paper to a specially created trust that in turn sells
interests or securities in that trust. See App. 90, 626. Ryan
mentioned the possibility of raising funds in this way to
Keller before or shortly after the ORIX acquisition (id. at
90), but Keller repeatedly advised Ryan that in his opinion
asset-backed securitization was "not for us." Id. at 28-29,
627.

5

Finally, Keller states that he explored the possibility of
private placements of ORIX Credit Alliance debt with
insurance companies and other institutional investors. App.
628. But Keller states that it was not until July 1992 (one
or two months prior to the decision to terminate him) that
he proposed to Ryan that ORIX Credit Alliance Corp. take
"[t]he first step" in this direction, i.e., the selection of a
bank to act as the company's agent. Id. at 627-28.

ORIX Credit Alliance's Assessment of Keller's
Performance. ORIX Credit Alliance points to evidence that
paints a picture of growing dissatisfaction within the
company about Keller's failure to reach or approach the
funding goal. Keller and Ryan both testified that Ryan
repeatedly questioned Keller about the funding situation.
App. 40, 44, 98-99. Ryan also stated that he asked Keller
why ORIX Credit Alliance's competitors were able to obtain
forms of financing that his company either did not pursue
or allegedly could not obtain. Id. at 90, 92, 98. See also id.
at 627 (Keller Affidavit). One of ORIX Credit Alliance's
outside directors, David E. Mundell, who had served for
nearly 20 years as the president of another leading
commercial lending company, stated that at most, if not all,
of the board meetings from March 1991 until April 1993 he
questioned Keller and "expressed dissatisfaction with the
lack of progress in raising funding." Id. at 388. At one
meeting, Mundell added, he "expressed the view that, based
on [his] knowledge of the equipment finance industry and
[his] experience in managing the liability side of finance
companies' balance sheets, [he] believed that Credit
Alliance was not raising funds in the amounts and on the
terms that it should have been able to in light of the
relevant factors, such as its financial statements, the
sufficiency of its equity, and its status in the industry." Id.
Mundell continued that "Keller responded by offering a list
of excuses for his inability to raise more funds," but that he
"did not . . . make any concrete proposals for correcting the
problems that, he claimed, were preventing him from
producing the desired results." Id. at 389.

Another outside director, Yoshiaki Ishida, who was also
the president and chief executive officer of an ORIX parent
corporation, stated that at several board meetings he
 6

"questioned Mr. Keller about his presentation." App. 1164.
Ishida added that he "was not satisfied with the results that
Mr. Keller reported because the level of funds raised for
Credit Alliance was much too low and the goal of
independence in funding was not being achieved." Id. Ishida
added that he told Ryan at private meetings that "the ORIX
parent companies were not happy with the lack of progress
in raising funds for Credit Alliance, and with Credit
Alliance's continued reliance on another ORIX company
(ORIX Ireland) for a large portion of its funding." Id. Ishida
also stated that he "told Mr. Ryan, on several occasions,
that [he] felt that Mr. Keller's work in raising funds was not
satisfactory." Id. at 1165.

In August or September of 1991, still another outside
director, Sachio Hata, a senior officer of the parent
Japanese corporation, suggested to Ryan that "perhaps [he]
was remiss in giving Mr. Keller too much to do and that
that could have been the reason why [the company's]
financing situation was making such little progress." App.
103. Shortly after Hata made this remark, Ryan relieved
Keller of his responsibilities as chief credit officer, primarily
so that he "could focus on the financing function." Id.

Keller attempts to counter this evidence by pointing to
the absence of proof that Ryan ever expressly "criticized"
his performance or disputed his explanations for his
inability to obtain various types of funding. Keller points to
Ryan's inability during his deposition to recall more than
two discussions at board meetings regarding Keller's
performance. App. 484-90, 492-93. In addition, Keller
points out that, in describing those discussions, Ryan did
not mention that either involved a direct criticism of Keller.
See Appellant's Br. at 12. Keller also notes that one
member of the board of directors, Neil Umhafer, stated that
during the period from 1988 to March 1992, "[n]o one
challenged or disagreed with Keller's presentations at
[board] meetings or suggested in any way that the
difficulties he was encountering were in any way due to his
performance rather than factors beyond his control."1 App.
1126.
_________________________________________________________________

1. ORIX Credit Alliance asserts that Umhafer is now Keller's business
partner. Appellee's Br. at 10 n.7; App. 1128. Obviously, however, the
question of Umhafer's credibility is not a matter to be considered at the
summary judgment stage.

7
Selection of the New Chief Operating Officer . In about
December 1991 -- in the midst of the time when Keller was
experiencing difficulty in obtaining funding -- Ryan
announced that he planned to retire in approximately two
and one-half years from his positions as chairman of the
board and chief operating officer of ORIX Credit Alliance.
App. 84. Ryan stated that he:

felt the job required someone that had a deep
understanding and background of the company's
primary business, someone who had held a line
position with the company, preferably someone who
had personally performed as many of the tasks that are
required to operate the company's business as
possible.

Id. at 101. He said that he therefore considered only the
two most senior officers from the operational side of the
company, division managers Philip Cooper, age 43, and
Mark Lasher, age 50. Id. at 101, 268. Keller, then 50 years
of age, was not considered even though he had been
considered for the position of president in 1988 when Ryan
was chosen. Id. at 101. Keller had never held a line position
and had never worked in or managed any of the company's
branch offices or divisions. Id. at 65, 53.

Cooper was chosen as the new chief operating officer.
App. 101. Cooper had decades of experience in line
positions managing the company's operations and had been
with the company longer than Keller. Id. at 53, 101, 315. In
May 1992, Keller, as a member of the board of directors,
voted to ratify Cooper's promotion. Id. at 314-15, 345.

The April 13, 1992 Conversation. Keller relies most
heavily on a conversation he had with Ryan on April 13,
1992. Keller described this conversation as follows at his
deposition:

[Ryan] assured me that he felt comfortable that Orix
would be there for us as far as being able to loan us
money. But then [he] made a comment that . . . "We
really can't complain if we're not out developing
relationships."

8

He said to me that he didn't see me traveling around
the country visiting with banks. He said I was spending
a lot of time in New York City.
 * * *

And then he said . . . "If you are getting too old for the
job, maybe you should go hire one or two young
bankers."

App. 27 (emphasis added).

Keller said that, because of Ryan's reference to Keller's
age, Keller prepared a handwritten summary of the meeting
within an hour or two after it ended. App. 25. These
handwritten notes state in pertinent part:

DNR then suggested that we cannot complain about
not being able to fund our needs if we have not made
a good effort to develop lines etc. -- he said I don't see
you traveling across . . . country developing
relationships I see you spending a lot of time in NYC.
He suggested I hire one or two young bankers. Also
discussed possibility of securitization if necessary.

Id. at 168-69. The handwritten summary contains no
reference to Ryan's alleged words "If you are getting too
old," but Keller explained at the deposition:

The reason I made those notes in the first place was
because of that statement, I didn't need these notes to
remind me of what he said.

Id. at 26.

The Decision to Discharge Keller. By August or September
1992, Ryan had decided that Keller should be discharged.
App. 91, 1156. After Ryan made his initial decision, he
discussed it with at least four individuals who were
directors or senior officers of the company, and all
expressed agreement. Id. at 1156-57. Those informed
included Mundell, Ishida, Cooper, and Jacob Mehl, an
executive vice president and the general counsel of the
company. Id.

Ryan and Cooper then drew up a list of criteria to be
used in identifying a replacement. App. 316. Among their

9

primary criteria were "experience in implementing asset-
backed securitization programs and other creative forms of
[fundraising]," "strong skills in working with rating agencies
and bankers, particularly Japanese bankers," and a
"results driven" character. Id. at 316. According to Cooper,
"[t]hese were among the areas in which we felt that Mr.
Keller's skills were inadequate for his job at Credit
Alliance." Id.

Cooper communicated these criteria to an executive
search firm, which subsequently proposed several
candidates. App. 316. From among these, Ryan selected
Joseph McDevitt, who was born on December 12, 1946,
and is thus four years, ten months, and 19 days younger
than Keller. Id. at 317, 269, 610.

Keller's Final Months. In September 1992 (i.e., at roughly
the time when Ryan made his initial decision to terminate
Keller), Ryan began to explore on his own the possibility of
obtaining funding by means of asset-based securitization.
App. 91. Shortly thereafter, Goldman Sachs & Co. was
engaged by Cooper and Ryan for a securitization program,
and within two years the company had closed two asset-
backed securitization deals and raised nearly $500 million.
Id. at 389.

Keller was not informed of Ryan's initial decision to
discharge him, App. 590-92, and thus in late 1992 or early
1993 Keller presented to Cooper a one-page document
entitled "TIMETABLE FOR DIVERSIFICATION OF FUNDING
SOURCES." This plan listed such items as the following:

2/8-5/1/93 Meet bankers and gauge level of interest
in providing credit facilities.

2/9/93 Visit S&P; discuss 9-month results;
determine feasibility of "A-2" rating
before year-end numbers are available. If
feasible, set up rating meeting as soon
as possible. If not feasible, see below.

3/15/93 Decide if public securitization is a viable
funding source. If so, move to market (90
days).

10

App. 1107. In response to questioning by Keller's attorney,
Ryan acknowledged that most, if not all, of these steps were
eventually taken, id. at 542-45, but Keller has not pointed
to any evidence that any of the steps proposed were novel
or that he did much if anything to accomplish any of the
objectives.2

Keller was formally discharged by unanimous vote of the
executive committee of the board of directors on April 1,
1993, effective on that date. App. 1159, 1162. Ryan went to
Keller's office to inform him of the decision. Id. at 591.
Keller states that the following occurred:

I asked Dan if he was asking for my resignation
because of my age and reminded him of the
conversation that we had in April of `92 when he was
-- when he asked me if I was getting too old for the job
and suggested that I, if I were, that I hire one or two
young bankers to travel around the country. He gave
me -- there was no response to that, to my comments.

Id. at 593.

Keller subsequently asked to "get together [with Ryan] to
discuss [his] situation" (App. 595), and the two men met for
lunch at a Manhattan restaurant on approximately April 9.
Id. at 595-96. During the lunch, according to Keller, Ryan
stated that Keller's suggestion of a "$1 million plus"
severance package was out of the question, and Ryan
added:

"Look, you do what you have to do, you know. I have
discussed this with Jerry Mehl, and he doesn't see that
we will have a problem."

And then he said, "But, you know, Jerry is a lawyer
and lawyers aren't always right."

Id. at 597.

McDevitt's Performance. On April 5, 1993, McDevitt
_________________________________________________________________

2. As previously noted, Keller does point to evidence that in July 1992 he
took the "first step" to implement a program of private placement, i.e.,
he
identified the bank that he wanted to serve as the company's agent. App.
628-29.

11

replaced Keller, and within a year he raised well over $1.5
billion in new credit facilities, including almost $2 million
in bank lines, $250 million through a first offering of asset-
backed securities, $275 million through a private
placement of notes, $1 billion in syndicated credit facilities,
and $300 million through the sale of commercial paper.
App. 311-14.

B.

In August 1993, Keller commenced this action in federal
district court, claiming that ORIX Credit Alliance denied
him promotion to the position of chief operating officer and
ultimately terminated him because of his age, in violation of
the ADEA and the NJLAD. ORIX Credit Alliance moved for
summary judgment, and the district court granted that
motion.

With respect to Keller's discharge claims, the district
court first held that Keller had failed to make out a prima
facie case under the scheme of proof set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Specifically,
the court held that Keller had not identified evidence
showing that he was qualified for the position or that he
was " `replaced by someone significantly younger to permit
an inference of age discrimination.' " Dist. Ct. Op. at 8
(quoting Gray v. York Newspapers, Inc., 957 F.2d 1070,
1088 (3d Cir. 1992)). The court then concluded that, even
if Keller had established a prima facie case, ORIX Credit
Alliance had proffered a legitimate business reason for
Keller's dismissal, namely, "Keller's failure to make
adequate progress toward the $1.5 billion independent
financing goal," and that Keller had not pointed to evidence
that a reasonable jury could view as establishing pretext or
as proving that his discharge was due to age
discrimination. Id. at 10-11.

With respect to Keller's denial-of-promotion claim, the
court reasoned that the same evidence of Keller's failure to
meet or approach the financing goal was sufficient to
warrant summary judgment on that claim as well. Id. at 11.
Keller then took this appeal.

12

II.

We turn first to Keller's discharge claim. Keller contends
that this claim should have survived summary judgment
under either McDonnell Douglas or Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989).

A. McDonnell Douglas

In McDonnell Douglas, the Supreme Court created a
special scheme for structuring the presentation of evidence
in discriminatory treatment cases under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. S 2000e-1 et seq. Our
court has applied a slightly modified version of this scheme
in ADEA cases. See, e.g., Waldron v. SL Industries Inc., 56
F.3d 491, 494-95 (3d Cir. 1995); Sempier v. Johnson &
Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 115 S.Ct.
2611 (1995); Torre v. Casio, Inc., 42 F.3d 825, 829-30 (3d
Cir. 1994); Healy v. New York Life Ins. Co., 860 F.2d 1209,
1214 (3d Cir. 1988).3 Cf. O'Connor v. Consolidated Coin
Caterers Corp., 116 S.Ct. 1307, 1310 (1996) (assuming
arguendo that McDonnell Douglas applies under ADEA).

The McDonnell Douglas scheme has three steps. First, the
plaintiff must produce evidence that is sufficient to
convince a reasonable factfinder to find all of the elements
of a prima facie case. St. Mary's Honor Center v. Hicks, 509
U.S. 502, 506 (1993). When the plaintiff alleges unlawful
discharge based on age, the prima facie case requires proof
that (i) the plaintiff was a member of the protected class,
i.e., was 40 years of age or older (see 29 U.S.C. S631(a)), (ii)
that the plaintiff was discharged, (iii) that the plaintiff was
qualified for the job, and (iv) that the plaintiff was replaced
by a sufficiently younger person to create an inference of
age discrimination. Sempier, 45 F.3d at 728.

If the plaintiff offers sufficient proof of these elements,
step two is reached. The burden of production (but not the
burden of persuasion) shifts to the defendant, who must
_________________________________________________________________

3. Although Keller's complaint grounded his discharge claim on both the
federal ADEA and the NJLAD (see App. 4), Keller's brief relies solely on
the ADEA with respect to the discharge issue. See Appellant's Br. at 22-
39. We therefore confine this portion of our opinion to the ADEA.

13

then offer evidence that is sufficient, if believed, to support
a finding that it had a legitimate, nondiscriminatory reason
for the discharge. Hicks, 509 U.S. at 506-07. If the
defendant cannot satisfy this burden, judgment must be
entered for the plaintiff. Id. at 509. On the other hand, if
the defendant does satisfy this burden, step three is
reached. The plaintiff may then survive summary judgment
or judgment as a matter of law by submitting evidence

from which a factfinder could reasonably either (1)
disbelieve the employer's articulated legitimate reasons;
or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative
cause of the employer's action.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Accord
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d
1061, 1067 (3d Cir. 1996) (en banc), cert. denied, 117 S.Ct.
2532 (1997).

In this appeal, we find it unnecessary to consider steps
one and two of the McDonnell Douglas scheme. Step two is
not contested, and although the parties dispute whether
Keller met step one, we will assume for the sake of
argument that he did, because we agree with the district
court that Keller did not satisfy step three under either the
first or second prong of the Fuentes test.

1. Prong One. As noted, a plaintiff may satisfy this
prong by offering evidence "from which a factfinder could
reasonably . . . disbelieve the employer's articulated
legitimate reasons." Fuentes, 32 F.3d at 764. But as we
have explained:

To discredit the employer's proffered reason . . . the
plaintiff cannot simply show that the employer's
decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is
wise, shrewd, prudent, or competent. Rather, the non-
moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate
reasons for its actions that a reasonable factfinder
could rationally find them unworthy of credence.

14

Id. at 765. As another court of appeals has put it, "federal
courts are not arbitral boards ruling on the strength of
`cause' for discharge. The question is not whether the
employer made the best, or even a sound, business
decision; it is whether the real reason is [discrimination]."
Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir.
1996).

The defendant in this case provided evidence that it had
a particularly powerful reason for discharging Keller, i.e.,
his failure to meet or even approach the goal of raising $1.5
billion in financing. As previously noted, ORIX Credit
Alliance makes a profit by borrowing money and then
lending it at a higher rate. Consequently, borrowed money
is the company's life blood, and it thus seems clear (and we
do not understand Keller to disagree) that the company
would have had a strong reason for discharging a key
executive who unjustifiably failed to meet a reasonable
objective relating to the raising of funds. Moreover, Keller
cannot argue that the objective of raising $1.5 billion was
unreasonable when it was originally set: he himself set that
goal, and he assured the board of directors that he could
meet it.

Instead, Keller makes two chief arguments: first, that the
evidence in the summary judgment record shows that his
inability to meet or approach the $1.5 billion objective was
due to factors beyond his control and, second, that
evidence in the summary judgment record shows that Ryan
knew that this was so. We will discuss each of these
arguments in turn.

Evidence that Keller's failure to reach or approach the
$1.5 million goal was due to factors beyond his control. In
considering this argument, it is critical to keep in mind that
the question under the first prong of the Fuentes test is not
whether "the employer's decision was wrong or mistaken."
Fuentes, 32 F.3d at 765. Accordingly, Keller cannot survive
summary judgment under this prong simply by pointing to
evidence that could convince a reasonable factfinder that he
did as well as he could under the circumstances. Rather,
he "must demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a

15

reasonable factfinder could rationally find them`unworthy
of credence.' " Fuentes, 32 F.3d at 765. In simpler terms, he
must show, not merely that the employer's proffered reason
was wrong, but that it was so plainly wrong that it cannot
have been the employer's real reason.

When this point is kept in mind, it is apparent that Keller
failed to satisfy prong one of Fuentes. Whether Keller could
have met or come close to the $1.5 billion goal under the
business conditions that prevailed from 1989 to 1992 is a
complicated question that would be difficult to resolve
without expert testimony of a sort that is lacking in the
summary judgment record of this case. But the relevant
question is not whether Keller could have done better;
instead, the relevant question is whether the evidence
shows that it was so clear that Keller could not have done
better that ORIX Credit Alliance could not have believed
otherwise. The answer to this question is plainly negative.

The evidence relating to asset-backed securitization
illustrates the weakness of Keller's position. It is
undisputed that Ryan had an early interest in this method
of raising funds. Ryan discussed asset-backed
securitization with Keller before or shortly after the ORIX
acquisition, and it is also undisputed that Keller rejected
this idea. Ryan testified without contradiction that on many
subsequent occasions he raised the possibility of asset-
backed securitization with Keller. Ryan said that every time
he read an article in the Wall Street Journal about a
competitor's utilization of this technique, he mentioned the
subject to Keller, App. 90, and it is undisputed that Keller's
consistent response was that asset-backed securitization
should not be pursued by ORIX Credit Alliance, in part
because of the nature of its business. Id. at 28. Indeed,
Keller's own affidavit reiterates this position. Id. at 626-28.
Finally, in September 1992, Ryan decided to explore the
matter on his own without Keller's knowledge or
participation. Ryan met with leading investment banking
firms, engaged the services of one such firm, and within
two years the company raised nearly $500 million through
two offerings of asset-backed securities. In the face of this
evidence, a reasonable factfinder could not find that ORIX
Credit Alliance's dissatisfaction with Keller's failure to

16

pursue asset-backed securitization was so clearly wrong
that it cannot have been sincere.

Keller's evidence relating to bank lines of credit likewise
falls short of what would be necessary to show that ORIX
Credit Alliance's dissatisfaction with his performance was
so clearly unfounded that it cannot have been sincere.
Keller's brief states:

[B]anks told Keller that they were not interested in
companies outside their region; that their "credit
culture [had] bec[o]me very conservative;" that they
were troubled by the Japanese economy and the level
of delinquent accounts at Credit Alliance, and sought
business only with highly rated companies; that they
perceived a "downturn in the equipment financing
industry . . . which they expect will become even
worse."

Appellant's Br. at 10 (footnotes omitted).

This recital is based on four file memos written by Keller
during a period of more than three years. See Appellant's
Br. at 10 & nn.7-10. The first memo relates that an officer
of a regional bank with offices in Florida and Georgia told
Keller that his bank "only does business with local
companies or national companies with local (Florida/
Georgia) operations." App. 394. The second memo did not
report that the bank in question had refused to extend
credit; instead, it concluded by saying: "We decided to meet
again after [the bank officer] has received and reviewed our
1992 financial information." Id. at 401. The third memo,
dated several months after the decision to terminate Keller
was made, does recount that an officer at a major bank
"repeated his many stories as to why it [was] difficult for
him to get a credit facility approved for our company." Id.
at 402. The final memo stated that an officer at a major
bank told Keller (in 1990) that "the Bank would prefer to
delay providing . . . a line of credit." Id. at 666. Taken
together, these file memos and the additional memos cited
in Keller's affidavit (see id. at 620-21) constitute evidence
from which a reasonable factfinder could conclude that
Keller experienced difficulties in securing bank lines, but
they could not persuade a reasonable factfinder that it was

17

so plainly impossible for Keller to secure additional lines of
credit from other banks during the 1989-1992 period that
ORIX Credit Alliance's dissatisfaction with his performance
must not have been real.

We will not discuss the evidence relating to Keller's
failure to obtain more funding by other means. However,
after examining all of the evidence identified in Keller's brief
for the purpose of showing that his failure to meet or
approach the $1.5 billion financing goal was due to factors
beyond his control, we are convinced that Keller has not
shown that it was so plain that he could not have done
substantially better under the circumstances that ORIX
Credit Alliance could not have truly believed otherwise.

Evidence that Ryan knew Keller could not have done
better. Keller also argues in his brief that the summary
judgment record contains evidence that Ryan knew that
Keller could not have done appreciably better under the
business circumstances that prevailed from 1989 through
1992. See Appellant's Br. at 8-9. This argument, however,
is simply not supported by the record.

Keller's brief states that "Ryan repeatedly acknowledged"
that "Keller's inability to obtain more credit on favorable
terms was due to circumstances beyond his control."
Appellant's Br. at 35-36. But our review of the record
citations provided in Keller's brief has not disclosed a single
such acknowledgment. Instead, most of the record citations
are based on passages from Ryan's deposition during which
the following occurred. Keller's attorney showed Ryan
documents that had been written by Keller and that
memorialized statements that had allegedly been made by
third parties, such as officers of banks or rating agencies,
and that explained why these third parties were unwilling
to take various actions that would have been favorable to
ORIX Credit Alliance. Keller's attorney then asked Ryan
whether he had any basis for disputing the accuracy of the
documents, and Ryan (who generally had no recollection of
previously seeing the documents) said that he had no basis
for disputing their accuracy. See Appellant's Br. at 10 &
nn.7-10 (citing App. 554-55, 558-59, 561-6, 563-646).
These exchanges merely show that Ryan did not dispute
the accuracy of particular documents that recounted a

18

limited number of specific statements allegedly made over
the course of several years by individuals associated with
particular banks and rating agencies. A factfinder could not
reasonably draw from these exchanges the general
conclusion that Ryan "repeatedly acknowledged" that
"Keller's inability to obtain credit on favorable terms was
due to circumstances beyond his control." Appellant's Br.
at 35-36.

Keller also relies on the assertion that his performance
was never "criticized" prior to the April 13 meeting with
Ryan, and he argues that this absence of criticism shows
that ORIX Credit Alliance was not sincerely disturbed by
his failure to approach the $1.5 billion goal. Appellant's Br.
at 29, 36. The summary judgment record contains evidence
that Keller was criticized (director Mundell's comments are
perhaps the clearest example), but Keller claims that he
was never "criticized," except at the April 13, 1992 meeting,
and in the present procedural posture of the case, we
accept Keller's position.

Keller does not dispute, however, that he was repeatedly
"questioned" by Ryan and others about this matter, and
therefore the question is to what extent a reasonable
factfinder could infer from the absence of criticism (as
distinct from questioning) that ORIX Credit Alliance was
not really troubled by Keller's failure to approach the $1.5
billion goal. We conclude that a reasonable factfinder could
draw only a relatively weak inference. Employers who are
dissatisfied with the performance of their employees
sometimes voice express criticism to those employees, but
employers do not always do so. See Healy, 860 F.2d at
1216 ("The company is under no obligation to warn plaintiff
of complaints regarding his performance and, if anything,
the effect of such evidence is equivocal, perhaps indicating
that plaintiff was receiving the benefit of the doubt.")
(citation omitted). Evidence that a plaintiff was not
criticized may take on significance if the plaintiff can show
that other comparable employees regularly received express
evaluations of their work, but Keller does not point to any
such evidence. Moreover, in light of the patent importance
of the $1.5 billion goal, and in light of the steady
"questioning" of Keller about this matter, the absence of

19
explicit criticism cannot reasonably be viewed as having
great importance.

In sum, after considering all of the evidence that has
been called to our attention, we conclude that a reasonable
factfinder could not find that the words, actions, or
omissions of the relevant ORIX Credit Alliance officers
evidenced their belief that Keller was doing as well as could
be expected under the circumstances. For this reason and
the others explained above, we therefore hold that Keller
cannot defeat summary judgment based on the first prong
of the Fuentes test.

2. Prong Two. Accordingly, we proceed to the question
whether Keller can survive summary judgment under prong
two of the Fuentes test. Under this prong, Keller must
identify evidence in the summary judgment record that
"allows the fact finder to infer that discrimination was more
likely than not a motivating or determinative cause of the
adverse employment action." Fuentes, 32 F.3d at 762. In
other words, under this prong, Keller must point to
evidence that proves age discrimination in the same way
that critical facts are generally proved -- based solely on
the natural probative force of the evidence.

Keller's best evidence under prong two is his account of
his conversation with Ryan on April 13, 1992. As previously
noted, Keller testified that Ryan made the following
comments:

"We really can't complain if we're not out developing
relationships."

He said to me that he didn't see me traveling around
the country visiting with banks. He said I was spending
a lot of time in New York City. . . .

And then he said . . . "If you are getting too old for the
job, maybe you should hire one or two young bankers."

App. 27 (emphasis added). Although Ryan denied using the
words "If you are getting too old for the job," and although
Keller's contemporaneous notes of the conversation omit
any mention of this phrase, we are required, in reviewing
the district court's grant of summary judgment in favor of

20

ORIX Credit Alliance, to accept Keller's account of the
conversation.
Ryan's alleged words certainly constitute evidence from
which a reasonable factfinder could draw an inference of
age-based animus, but we do not think that these words
alone could reasonably be viewed as sufficient to prove by
a preponderance of the evidence that age was a
determinative cause of Keller's subsequent termination. For
one thing, the alleged comment occurred four or five
months prior to the time when Ryan decided that Keller
should be discharged. In addition, the alleged remark did
not refer to the question whether Keller should be retained
or fired but instead concerned the hiring of other employees
to assist him. Furthermore, the alleged statement pertained
to only one method of raising funds -- obtaining lines of
credit from banks outside New York City by traveling to
meet their officers. Even if Ryan's alleged statement is
interpreted to mean that he felt that Keller might be getting
too old to do the traveling necessary to raise funds in this
way, no evidence has been brought to our attention that
other methods of raising funds, such as beginning a
commercial paper program or utilizing asset-backed
securitization, would have required extensive travel.

Keller's remaining evidence under prong two is
insubstantial. Keller's statistical evidence is of little if any
value.4 Moreover, we reject Keller's suggestion that Ryan's
actions during his meeting with Keller on April 1, 1993,
when he asked for Keller's resignation, and his comments
during their subsequent restaurant meeting approximately
one week later constitute significant evidence of age-based
animus.

During the meeting on April 1, 1993, Ryan gave Keller a
draft letter of resignation to consider. See App. at 594.
Under the terms set out in this letter, Keller would have
_________________________________________________________________

4. Keller's brief states: "all six employees at or above the vice
president
level whom defendant has let go since September 1989 are over 40, even
though 22% of such positions are held by individuals under 40."
Appellant's Br. at 7. Without any demonstration of the statistical
significance of this data, a factfinder could not reasonably accord it
much if any weight.

21

received certain substantial benefits, including one-half his
annual salary plus $50,000. See App. 1114. In return,
Keller would have released ORIX Credit Alliance from all
claims. Id. at 1115. Noting that this blanket release would
have presumably included claims of age discrimination,
Keller seems to imply that the inclusion of this provision in
the letter evidences ORIX Credit Alliance's awareness that
Keller had grounds for an age-discrimination claim against
it. Appellant's Br. at 4. This implication is far-fetched.
Without evidence that a request for a blanket release is not
a common practice when an executive is asked to resign
under terms such as those set out in the letter, the
inclusion of this clause in the proposed letter of resignation
has little evidentiary worth.

Likewise, we reject Keller's argument that Ryan's
comments during the restaurant meeting evidenced
consciousness of guilt of age discrimination. See Appellant's
Br. at 4, 35. At the April 1, 1993 meeting, Keller had asked
Ryan:

"if he was asking for [Keller's] resignation because of
[his] age and [Keller] reminded him of the conversation
that [they] had in April of `92 when . . . he asked
[Keller] if [he] was getting too old for the job and
suggested that . . . if [he] were, that [he] hire one or two
young bankers.

Id. at 593. At his deposition, Ryan stated that he assumed,
based on Keller's comment, that Keller "was thinking of an
age discrimination suit." Id. at 512-13. At the subsequent
restaurant meeting, after rejecting Keller's request for a "$1
million plus" severance package, Ryan said:

Look, you do what you have to do . . . I have discussed
this with Jerry Mehl [the ORIX Credit Alliance general
counsel] and he doesn't see that we will have a problem
. . . [b]ut, you know, Jerry is a lawyer and lawyers
aren't always right.

Id. at 597.

Referring to these events, Keller's brief states:

Ryan's comments that Credit Alliance could be found
liable for age discrimination are evidence that, at a

22

minimum, he indeed had made the biased statement
Keller attributed to him.

Appellant's Br. at 4. Keller further argues that evidence of
age discrimination is provided by "Ryan's statements at the
time of Keller's discharge that he assumed that Keller
would sue for age discrimination." Appellant's Br. at 35
(footnote omitted). These arguments have no merit.
When Keller asked at the April 1, 1992 meeting whether
he was being fired because of his age, any reasonable
person would have realized that Keller might thereafter sue
for age discrimination. Thus, Ryan's assumption that Keller
might file such a suit hardly constitutes evidence of
consciousness of guilt.

Furthermore, Ryan's statement that his company's
general counsel might turn out to be wrong in predicting
that Keller's termination would not cause a "problem" has
little if any evidentiary value to show that Ryan believed
that Keller had a meritorious age-discrimination claim.
Needless to say, even an ultimately unsuccessful claim may
constitute a "problem," and due to the vagaries of the legal
process, unmeritorious suits are not always unsuccessful
(just as meritorious suits do not always succeed).

In assessing whether the proof in this case is sufficient to
establish by a preponderance of the evidence that age was
a determinative cause of Keller's termination, a reasonable
factfinder would have to consider, in addition to the
evidence noted above, the proof underlying the elements of
the prima facie case. Thus, a reasonable factfinder would
have to weigh the fact that Keller, who was 51 years old
when fired, was replaced by a man who was about four
years and ten and one-half months younger.

Finally, a reasonable factfinder would also have to
consider the evidence, which we discussed in part IIA1 of
this opinion, that ORIX Credit Alliance had a powerful,
legitimate reason for discharging Keller, namely, his failure
to meet or even approach the critical $1.5 billion goal that
he himself had set. A reasonable factfinder would have to
ask whether a company like ORIX Credit Alliance was more
likely to be concerned about Keller's failure to raise these

23

funds or about replacing him with a man who was some
four years and ten and one-half months younger.

Considering all of the evidence that is relevant with
respect to prong two, we conclude that a reasonable
factfinder could not find that the proof is sufficient to
establish by a preponderance of the evidence that age was
a determinative factor in Keller's termination.
Consequently, we hold that Keller cannot survive summary
judgment under prong two of the Fuentes test. Since we
have already held that he failed under prong one as well, it
follows that he cannot defeat summary judgment under the
scheme of proof set out in McDonnell Douglas.
B. Price Waterhouse

We therefore move on to Keller's argument that he was
entitled to survive summary judgment under Price
Waterhouse. Under Justice O'Connor's controlling opinion
in Price Waterhouse, if a plaintiff "show[s] by direct evidence
that an illegitimate criterion was a substantial factor in the
decision," the burden of persuasion shifts to the employer
"to show that the decision would have been the same
absent discrimination." 490 U.S. at 276 (O'Connor, J.
concurring) (emphasis added). See Armbruster v. Unisys
Corp., 32 F.3d 768, 778 (3d Cir. 1994). The precise
meaning of Justice O'Connor's term "direct evidence" has
divided the courts. See Linda Hamilton Krieger, The Content
of Our Categories: A Cognitive Bias Approach to
Discrimination and Equal Employment Opportunity, 47 Stan.
L. Rev. 1161, 1220-21 (1995) (describing the varying
approaches of the circuits); Note, Despite the Smoke, There
Is No Gun: Direct Evidence Requirements in Mixed-Motives
Employment Law After Price Waterhouse v. Hopkins, 46
Stan. L. Rev. 959, 970-79 (1994) (same). Similarly, when
the present case was before the panel, the majority and the
dissent disagreed on the question whether Ryan's alleged
statement on April 13, 1992, constituted "direct evidence"
within the meaning of Price Waterhouse.

On reconsidering this case en banc, we conclude that it
is not necessary for us to resolve this question. We have
held in part IIA2 of this opinion that a reasonable jury

24

could not find by a preponderance that age was a
determinative factor. If we held that Keller provided "direct
evidence" within the meaning of Price Waterhouse, Keller
could avoid summary judgment only if a reasonable jury
could fail to find by a preponderance that age was not a
determinative factor. Here, for the reasons explained above
in part IIA2 of this opinion, a reasonable factfinder could
not fail to find by a preponderance that age was not a
determinative factor in Keller's termination. We therefore
hold that Keller cannot survive summary judgment on his
discharge claim under Price Waterhouse.

III.

We proceed finally to Keller's claim that ORIX Credit
Alliance failed to promote him to the position of chief
operating officer in May 1992 because of his age. Assuming
for the sake of argument that Keller could make out the
elements of a prima facie case with respect to this
promotion decision, we hold that ORIX Credit Alliance
proffered a legitimate explanation for the decision and that
Keller did not satisfy either prong one or two of the Fuentes
test.5

Ryan explained that he felt that the job of chief operating
officer "required someone [who] had a deep understanding
and background of the company's primary business,
someone who held a line position with the company,
preferably someone who had personally performed as many
of the tasks that are required to operate the company's
business as possible." App. 101. Keller has not pointed to
any evidence showing that ORIX Credit Alliance did not in
fact rely on this criteria in choosing the new chief operating
officer. Nor has Keller pointed to any evidence that he
_________________________________________________________________

5. Although Keller relies on the NJLAD with respect to his failure-to-
promote claim, the relevant legal principles are the same as those
applicable under the ADEA. See McKenna v. Pacific Rail Serv., 32 F.3d
820 (3d Cir. 1994) (predicting New Jersey Supreme Court would follow
Hicks); Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 103 (N.J. 1990)
(McDonnell Douglas scheme applies under LAD); Burke v. Township of
Franklin, 619 A.2d 903 (N.J. Super. Ct. App. Div. 1993) (looking to ADEA
in interpreting LAD).

25

possessed such experience. Furthermore, the selection of
the new chief operating officer came at a time when Keller
was failing in the performance of the job he then held.
Months earlier, he had been relieved of his responsibilities
as chief credit officer so that he could focus on raising
funds, and by May 1992, it is undisputed that Keller was
being repeatedly questioned about his failure to meet or
approach the $1.5 billion target. Under these
circumstances, it is apparent that the company had
legitimate reasons for failing to promote Keller to the top
position of chief operating officer. Thus, Keller failed to
satisfy prong one of the Fuentes test.

We likewise hold that Keller failed to meet prong two of
that test. We have already discussed all of the evidence on
which Keller relies to show age discrimination, and we will
therefore not discuss that evidence again here. Considering
all of that evidence, and keeping in mind that Ryan's
alleged comment on April 13, 1992, came only a few weeks
before the promotion decision was made, we nevertheless
conclude that the evidence is insufficient to convince a
reasonable factfinder by a preponderance that age was a
determinative factor in the promotion decision.
IV.

For the reasons explained above, we therefore affirm the
decision of the district court granting summary judgment in
favor of ORIX Credit Alliance on all of Keller's claims.

26

ROTH, J. concurring and dissenting:

I join in all parts of the majority opinion except for Part
II.B. I do not believe that we can avoid resolving the
question of whether Ryan's alleged statement on April 13,
1992, constituted "direct evidence" within the meaning of
Price Waterhouse. In avoiding this question, the majority is
by necessity deciding something. First of all, it is deciding
that "direct" evidence may be of such little probative value
that it need not rise to the level of creating a material issue
of fact or of preventing a grant of summary judgment in
favor of the defendant. If such a decision were not implicit
in the majority's conclusion in Part II.B, the majority would
have not been able to affirm the district court's granting of
summary judgment in a case in which there is the
possibility that "direct evidence" has been proffered by the
non-moving plaintiff. I do not consider that "direct
evidence" could be of such little probative value that, if it
were present in any given case, it would be sufficient to be
classified as "direct" but not sufficient to prevent summary
judgment.

A second implied determination that can be read into
Part II.B is that "direct evidence" may be determined by
reviewing all the evidence that will be presented to the fact
finder. I am troubled by the breadth of such a holding.
Moreover, I am not sure that it can be read to follow from
Justice O'Connor's statement in Price Waterhouse . I would
conclude instead that, when Ryan's April 13 remark is
viewed in the context in which it was made and in light of
the possible ambiguities inherent in the language he used,
his statement is not "direct evidence."

A third assumption that I can draw from the reasoning of
Part II.B is that the majority arrived at the decision that it
did in Part II.A.2 only by, in essence, determining that
Ryan's April 13 remark was not "direct evidence" of
discrimination. If that is so, then why not say so.

27

LEWIS, Circuit Judge, dissenting.
The Age Discrimination in Employment Act makes it
unlawful to "discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of
employment, because of such individual's age." 29 U.S.C.
S 623(a)(1). Like other employment discrimination claims,
claims under the ADEA can be established either by the
presentation of direct evidence of discrimination under Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), or of evidence
which creates an inference of discrimination under the
framework of McDonnell Douglas-Burdine.

The sum of Keller's argument on appeal is that there is
sufficient evidence in this case to withstand a motion for
summary judgment under either approach. The majority
disagrees, finding that while that may be the sum, it carries
little substance. Instead, the majority concludes that the
evidence is insufficient to convince a reasonable factfinder
that Credit Alliance discriminated against Keller based on
his age. For the reasons which follow, I respectfully dissent.

I. MIXED MOTIVE UNDER PRICE WATERHOUSE

As we have said, when an employee presents evidence
supporting a reasonable inference that a decisionmaker
relied upon an illegitimate criterion, summary judgment for
the employer is not appropriate. Weldon v. Kraft , 896 F.2d
793, 797 (3d Cir. 1990); Hankins v. Temple University, 829
F.2d 437, 440 (3d Cir. 1987).

A plaintiff who makes such a case in resisting the
defendant's motion for summary judgment does not
need the help of McDonnell Douglas to resist the
motion. He walks as it were without crutches. For he
has presented enough evidence to defeat a motion for
summary judgment under the general test for the grant
of such a motion . . . .

Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir. 1990).
We have recognized that "[w]hen direct evidence is
available, problems of proof are no different than in other
civil cases." Goodman v. Lukens Steel Company, 777 F.2d

28

113, 130 (3d Cir. 1985) (citation omitted). The issue
becomes whether the employer did in fact rely upon the
illegitimate criterion, which "is precisely the sort of question
which must be left to the jury." Siegel v. Alpha Wire Corp.,
894 F.2d 50, 55 (3d Cir. 1990).
In my view, Keller provided evidence which reflects a
discriminatory animus on the part of a person involved in
the decisionmaking process. As the majority notes, Keller
testified that during the first meeting in which he was ever
criticized about his job performance, Ryan specifically
stated, "If you are getting too old for the job, maybe you
should hire one or two young bankers."6

I believe that Ryan's statement is sufficient evidence of a
discriminatory animus under Price Waterhouse. First, as
CEO of the company, Ryan is clearly a decisionmaker, and
in this case has admitted that he was the principal
decisionmaker in firing Keller. Second, it seems rather
obvious that Ryan's suggestion that Keller may be getting
too old to perform his job properly and that he hire younger
bankers could reflect a discriminatory animus on the basis
of age. Such a comment, if true, is by no means shrouded
in ambiguity, and there is no evidence to suggest that it
was stated facetiously. In addition, the comment was made
during a conversation about Keller's performance.
According to Keller, the comment was made at the meeting
in which he was first informed that his performance was
considered unsatisfactory. I believe, therefore, that a
reasonable factfinder could conclude that the comment was
related to the decisionmaking process itself. As the majority
notes, Ryan was critical of Keller's performance at the time
this alleged comment was made. Majority Opinion at 16-17.
_________________________________________________________________

6. The majority concludes that the "too old" comment is insufficient proof
of age-based animus because it occurred "four or five months" prior to
the discharge decision and only pertained to one aspect of Keller's
duties. Majority Opinion at 20-21. While this is certainly a powerful
argument, it is an interpretation which goes to the weight of the
evidence, and is a question for the finder of fact. Shager v. Upjohn Co.,
913 F.2d 398, 402 (7th Cir. 1990) ("[T]he task of disambiguating
ambiguous utterances is for trial, not for summary judgment. On a
motion for summary judgment the ambiguities in a witness's testimony
must be resolved against the moving party.").

29

Since Ryan decided to fire Keller only a few months later,
the age-related comment is probative of the factors
considered in Ryan's decision to terminate Keller. See
Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1165 (7th Cir.
1994) (holding that comments about the company not
keeping employees on until they reached sixty-five could
not be considered stray remarks for the purposes of
summary judgment); Shager, 913 F.2d at 400-02 (holding
that comments including "These older people don't much
like or much care for us baby boomers, but there isn't
much they can do about it," constituted direct evidence at
the summary judgment phase).

I do not consider this comment a stray remark,
insufficient as direct evidence of discrimination, simply
because it was the only age-related remark Keller could
recall. Just as there are "no talismanic expressions which
must be invoked as a condition-precedent to the application
of laws designed to protect against discrimination," there is
also no specific frequency with which discriminatory
remarks must be expressed before our protective laws are
triggered. Aman v. Cort Furniture Rental Corporation, 85
F.3d 1074, 1083 (3d Cir. 1996). The key inquiry is not the
number of times a comment is made but the context in
which it is made.

If the single comment is made by a decisionmaker and
reflects a discriminatory animus toward the plaintiff in the
decisionmaking process, it might well constitute direct
evidence of discrimination. See Price Waterhouse, 490 U.S.
at 241 ("The critical inquiry . . . is whether[the illegitimate
criterion] was a factor in the employment decision . . . .").
Unlike hostile environment claims, Price Waterhouse
considers only the nature and probative value of the alleged
discriminatory comment, and not the frequency with which
it was stated, because an employer's "[r]eliance on [illegal]
factors is exactly what the threat of Title VII liability was
meant to deter." Id. at 265 (O'Connor, J., concurring). As
discussed above, the alleged age-related remark in this case
was made by the principal decisionmaker during his
critique of Keller's work performance, and could be
interpreted as reflecting a negative attitude toward his age.
See Robinson, 23 F.3d at 1165 (holding that potentially age-

30

related comments made by the supervisor who decided to
terminate the plaintiff were sufficient direct evidence of
discrimination to survive summary judgment).

As we have stated, since "discriminatory comments by an
executive connected with the decisionmaking process will
often be the plaintiff's strongest circumstantial evidence of
discrimination, they are highly relevant . . . ." Abrams v.
Lightolier Inc., 50 F.3d 1204, 1215 (3d Cir. 1995). Since
Keller presented evidence which could allow a factfinder to
conclude that Ryan relied on an illegitimate criterion in
making his employment decision, I believe that summary
judgment was inappropriate. Given this evidence, Credit
Alliance's proffered legitimate reason for discharging Keller
simply creates a material issue of fact, rather than
demonstrating the absence of one.
II. PRETEXT UNDER MCDONNELL DOUGLAS-BURDINE

Since the majority assumes that Keller has presented a
prima facie case, I will next address whether the evidence
presented is sufficient to survive summary judgment under
Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994).

A. Evidence Supporting An Inference of Discrimination

Under the McDonnell Douglas-Burdine framework, I
believe Keller has offered sufficient evidence which could
support a finding that Credit Alliance's proffered
explanation is pretext and therefore creates a material issue
of fact as to the credibility of that explanation.

1. Evidence of Discrimination

We have consistently held that a plaintiff who has made
out a prima facie case can defeat a motion for summary
judgment by "adducing evidence, whether circumstantial or
direct, that discrimination was more likely than not a
motivating or determinative cause of the adverse
employment action." Fuentes, 32 F.3d at 764. Evidence of
age-based comments made by a supervisor, therefore, could
support an inference that the termination decision was
made because of the plaintiff's age. Abrams, 50 F.3d at
1214; Torre v. Casio, Inc., 42 F.3d 825, 834 (3d Cir. 1994);

31

Armbruster v. Unisys Corp., 32 F.3d 768, 783 (3d Cir.
1994).

Indeed, we have held that discriminatory comments by
nondecisionmakers, or statements temporally remote
from the decision at issue, may properly be used to
build a circumstantial case of discrimination. [See]
Roebuck v. Drexel University, 852 F.2d 715, 733 (3d
Cir. 1988) (upholding admissibility of discriminatory
comment by decisionmaker made five years before
denial of tenure).

Abrams, 50 F.3d at 1214 (citation omitted). When combined
with Keller's prima facie case, Ryan's suggestion that
perhaps Keller was getting "too old" for the job, and that he
should hire some "young bankers" could clearly support an
inference of discrimination.

This conclusion is supported by our prior decisions. In
Roebuck, we concluded that the comment that "in terms of
comparable white faculty members . . . blacks would cost
Drexel more money to hire those black faculty members,"
could give rise to an inference of discrimination even when
made five years before the decision in question. 852 F.2d at
733. Similarly, in Waldron v. SL Industries, Inc., we found
that when combined with the plaintiff 's prima facie case, a
comment that he should lose some weight because it would
make him healthier and look younger, made five months
before the termination, could support the conclusion that
age was more likely than not a determinative factor. 56
F.3d 491, 502 (3d Cir. 1995). Likewise, an inference of
discrimination was evident in Abrams, given comments like
"things would hum around here when we got rid of the old
fogies," and the fact that two older employees were referred
to as "a dinosaur" and "the old men." 50 F.3d at 1214.
Finally, in Torre, we found that the statement "did you
forget or are you getting too old, you senile bastard?" could
reasonably lead to an inference of age-based discrimination.
42 F.3d at 834. See also Robinson, 23 F.3d at 1165;
Shager, 913 F.2d at 402-03.

I must note that the fact Keller was replaced by an
individual roughly five years his junior should not and does
not impair Keller's ability to maintain a claim under the

32

ADEA. Whether the age gap is five years or twenty-five
years is irrelevant. See O'Connor v. Consolidated Coin
Caterers Corporation, 116 S. Ct. 1307, 1310 (1996) (holding
that a plaintiff need not be replaced by someone outside the
protected class to maintain a claim under the ADEA). The
district court thus erred in holding that Keller had to
present evidence that he was "replaced by someone
significantly younger to permit an inference of age
discrimination." Majority Opinion at 12 (quoting District
Court Opinion at 8). I recognize that the majority's opinion
does not affirm this particular holding of the district court,
but I am troubled that it also does not explicitly disavow
the holding. Because of the importance of this point, and
for purposes of clarity in future cases, the inclusion of such
a disclaimer in the majority's opinion would have been
appropriate, as I will explain below.

The Supreme Court has held that there is no particular
age difference that must be shown to maintain a claim of
age discrimination. See O'Connor, 116 S. Ct. at 1310; see
also Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d
Cir. 1995). In other words, "[t]here is no magical formula to
measure a particular age gap and determine if it is
sufficiently wide to give rise to an inference of
discrimination." Barber v. CSX Distribution Servs., 68 F.3d
694, 699 (3d Cir. 1995). As we have noted, "[d]ifferent
courts have held, for instance, that a five year difference
can be sufficient but that a one year difference cannot."
Sempier, 45 F.3d at 729 (citing Douglas v. Anderson, 656
F.2d 528, 533 (9th Cir. 1981) and Gray v. York
Newspapers, Inc., 957 F.2d 1070, 1087 (3d Cir. 1992)). See
also Corbin v. Southland Int'l Trucks, 25 F.3d 1545, 1550
(11th Cir. 1994) (finding evidence of pretext when a 53
year-old was treated more favorably than a 58 year-old
employee). In order to survive summary judgment, the
evidence need only provide a basis for a reasonable
factfinder to conclude that a discriminatory animus was at
play in the employer's decision. O'Connor, 116 S. Ct. at
1310. Accordingly, the "replacement by even an older
employee will not necessarily foreclose . . . proof if other
direct or circumstantial evidence supports an inference of
discrimination." Douglas v. Anderson, 656 F.2d 528, 533
(9th Cir. 1981) (emphasis added). In fact, the Tenth Circuit,

33

in Greene v. Safeway Stores, Inc., 98 F.3d 554, 557 (10th
Cir. 1996), reversed a grant of summary judgment as to an
ADEA claim even though the replacement was five years
older than the plaintiff.

Beyond the context of age discrimination, other courts of
appeal have been cognizant of the fact that an employer
can act with a discriminatory animus even when replacing
a discharged employee with a member of the same
protected class. In Carson v. Bethlehem Steel Corporation, 8
F.3d 157 (7th Cir. 1996), the district court had concluded
that the fact that Carson, who was white, was replaced by
a white employee prevented her from establishing a prima
facie case of discrimination. The court of appeals for the
Seventh Circuit rejected this conclusion, observing that,

[The Supreme Court's opinion in] O'Connor v.
Consolidated Coin Caterers Corp., ___ U.S. ___, 116 S.
Ct. 1307, 134 L.Ed.2d 433 (1966), shows that this
understanding of a prima facie case is erroneous. The
Court held in O'Connor that the plaintiff in an age
discrimination suit need not show that he was replaced
by a person outside the protected class. Laws against
discrimination protect persons, not classes, the Court
remarked, an observation with equal force in a case
under the Civil Rights Act of 1964.

Id. at 158.

The court then illustrated the point with the following
hypothetical:
 Suppose an employer evaluates its staff yearly and
retains black workers who are in the top quarter of its
labor force, but keeps any white in the top half. A
black employee ranked in the 60th percentile of the
staff according to supervisors' evaluations is let go,
while all white employees similarly situated are
retained. This is race discrimination, which the
employer cannot purge by hiring another person of the
same race later.

Id.

In the same vein, another court has noted that
replacement with a protected class member does not negate

34

a discriminatory animus if the employer is "less tolerant of
indiscretions committed by black employees than of those
committed by whites." Nix v. WLCY Radio/Rahall
Communications, 738 F.2d 1181, 1186 n.1 (11th Cir. 1984)
(citing McDonald v. Santa Fe Trail Transportation Company,
427 U.S. 273, 282-83 (1976)). Significantly, the Nix court
also noted that replacement with another member of the
same class may serve as "a pretextual device, specifically
designed by [the employer] to disguise its act of
discrimination toward [the discharged employee.]" 738 F.2d
at 1186 n.1 (quoting Jones v. Western Geophysical Co. Of
America, 669 F.2d 280, 284 (5th Cir. 1982)). In fact, in the
racial context, replacement with another member of the
protected class often enables an employer to mask
discriminatory motives while realizing racist ideals and
stereotypes. The replacement of darker-skinned black
employees with lighter-skinned black employees occurs
every day in this country in the hope of making white co-
workers and customers more "comfortable." Similarly, we
all know that the replacement of one woman with another
who more closely resembles a traditional conception of the
so-called "feminine ideal," in terms of physical appearance,
demeanor, (lack of) assertiveness, etc., is not some abstract
theory; it is reality, and it happens every day, in business,
in the media, and even in our esteemed profession.

In all of these cases, a discriminatory animus can be
present even though the replacement is of the same
protected class as the discharged employee. The majority
declines to acknowledge that a replacement's "race, sex, or
age may help to raise an inference of discrimination, but it
is neither a sufficient nor a necessary condition." Carson,
82 F.3d at 159 (citations omitted); see also Nieto v. L&H
Packing Company, 108 F.3d 621, 624 n.7 (5th Cir. 1997)
(fact that Hispanic employee's replacement was also
Hispanic does not preclude "possibility that the discharge
was motivated [by] discriminatory reasons"); Monette v.
Electronic Data Systems Corporation, 90 F.3d 1173, 1185
n.11 (6th Cir. 1996) (disabled employee need not show
replacement is non-disabled to present prima facie case of
discrimination). But as the Supreme Court has emphasized,
"[t]he fact that one person in the protected class has lost
out to another person in the protected class is . . .

35

irrelevant, so long as he has lost out because of[an illegal
criterion]." O'Connor, 116 S. Ct. at 1310. An employer does
not have "license to discriminate against some employees
on the basis of race or sex [or age] merely because he
favorably treats other members of the employees' group."
Connecticut v. Teal, 457 U.S. 440, 455 (1982).

We have already recognized instances of age
discrimination in the absence of a considerable age gap
between the discharged employee and the replacement. In
Sempier, for example, we found that the plaintiff had
presented evidence from which a factfinder could
"reasonably conclude that [an] employment decision was
made on the basis of age" even though the replacement was
only four years younger. 45 F.3d at 729. Without deciding
whether four years alone was enough, we concluded that
the four year difference, combined with the fact that the
plaintiff 's functions were also temporarily transferred to
someone well over ten years younger, were sufficient to
support an inference of age discrimination. Id. at 730.

I believe that the approximate five year age difference
between Keller and his replacement, particularly when
combined with Ryan's age-based comment, is sufficient to
establish an inference that Keller's age was a motivating
factor in Credit Alliance's decision. Given Keller's
experience, and the fact that the age difference spans
chronological decades, so to speak (Keller was in his "fifties"
while his replacement was in his "forties"), a factfinder
could reasonably conclude age was a determinative factor
in the decision to fire Keller. See Pace v. Southern Ry.
System, 701 F.2d 1383, 1387 (11th Cir. 1983) ("Seldom will
a sixty year-old be replaced by a person in the twenties.
Rather the sixty-year-old will be replaced by a fifty-five
year-old, who, in turn, is succeeded by someone in the
forties, who also will be replaced by a younger person.").
The precise gap in age between Keller and his replacement
is less relevant than the overall impression presented by
the evidence that Credit Alliance used age as a
determinative factor in making its decision. See O'Connor,
116 S. Ct. at 1310 (stating "irrelevant factor[s]" should not
take precedence over "evidence adequate to create an
inference that an employment decision was based on a[n]

36

[illegal] discriminatory criterion"). Since Keller produced
evidence which could support the conclusion that age was
more likely than not a motivating factor in Ryan's decision
to terminate him, Credit Alliance's proffered reason merely
creates a material issue of fact.

In sum, while I agree with the majority that the
narrowness of the age gap between Keller and his
replacement is a factor a reasonable factfinder would have
to consider, I do not agree that "the gap" does not permit a
reasonable inference of discrimination.

2. Evidence That the Employer's Proffered Reason Is Not
Worthy Of Credence

A plaintiff in an employment discrimination case may
also defeat a motion for summary judgment by presenting
evidence from which a reasonable factfinder could conclude
that the defendant's proffered justifications are not worthy
of credence. Torre, 42 F.3d at 832; Fuentes, 32 F.3d at 764
(legal principle reaffirmed in Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en
banc)). Credit Alliance's proffered reason for terminating
Keller was his failure to make adequate progress toward
achieving their financing goal. Credit Alliance argues, and
the majority concludes, that Keller's evidence is aimed at
simply demonstrating that this decision was wrong
because, according to Keller, it was impossible to reach the
goal. Majority Opinion at 15-17. This conclusion
misinterprets both the evidence and Keller's argument.

Keller is not arguing that the proffered reason is
pretextual because it is wrong. He is arguing that Credit
Alliance was aware of the outside factors that hindered his
ability to obtain funding, and that they did not fault him for
the results of his efforts.

While pretext is not demonstrated by showing that the
employer was mistaken, Ezold v. Wolf, Block, Schorr and
Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1993), it can be
established by "evidence of inconsistencies or anomalies
that could support an inference that the employer did not
act for its stated reason." Sempier, 45 F.3d at 731 (citing
Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d
Cir. 1993)) (emphasis added). The thrust of the evidence

37
and Keller's argument is that Credit Alliance was not
dissatisfied with his performance, because it knew that
efforts to obtain outside fundraising were impeded by
various market forces.

Keller relies upon evidence which could establish: (1) that
Credit Alliance's disappointing progress was due to forces
beyond his control; (2) that Credit Alliance recognized that
fact; and (3) that it knew that this poor showing was not
attributable to him. Seen in the light most favorable to
Keller, I think it is clear that a reasonable jury could
consider Credit Alliance's explanation that Keller was fired
for "poor performance" pretextual. See Sorba v.
Pennsylvania Drilling Co., 821 F.2d 200, 205 (3d Cir. 1987)
(reversing summary judgment when the plaintiff proffered
evidence "that his supervisors realized that the poor results
were not his fault [and that the] testimony of the movant's
witnesses was inconsistent regarding whether they believed
[plaintiff]'s performance caused the unsatisfactory job
results"). See also Rhodes v. Guiberson Oil Tools, 75 F.3d
989, 996 (5th Cir. 1996) (en banc) (holding that there was
sufficient evidence to support a finding of discrimination
when the plaintiff demonstrated that the employer's
proffered explanation of poor performance was pretextual
because his poor results were due to the company's prices
and a poor customer base); Johnson v. Group Health Plan,
Inc., 994 F.2d 543, 546 (8th Cir. 1993) (report stating that
morale problems caused by other factors created factual
issue regarding plaintiff 's performance); Mastrangelo v.
Kidder, Peabody & Co., 722 F. Supp. 1126, 1134 (S.D.N.Y.
1989) (finding sufficient evidence showing defendant's
criticism of plaintiff 's performance was pretextual where
problems of his department were attributable, at least in
part, to matters beyond his control).

Furthermore, unlike the majority, I believe the absence of
any criticism of Keller's performance would permit a
reasonable factfinder to disbelieve Credit Alliance's
proffered explanation. The majority unnecessarily
complicates the analysis by requiring Keller to show that
"other comparable employees" received evaluations of their
work. Majority Opinion at 19. Regardless of Credit
Alliance's general evaluative practices, I find it difficult to

38

conceive of an employee's work being so inadequate as to
warrant termination but not so poor as to warrant some
criticism before the point of termination. Indeed, we have
generally confined our analysis to an employer's evaluation
of the discharged employee, not an employer's general
practice of assessing employee performance. In Sempier, for
example, we concluded that a genuine issue existed as to
pretext because of the plaintiff 's own testimony of
satisfactory performance combined with evidence that he
was not criticized while still employed. 45 F.3d at 731-32.

To justify firing Keller, the only evidence offered by Credit
Alliance is the post-hoc deposition testimony of some of the
members of the board of directors who ratified the decision
to fire Keller. With the exception of Ryan's testimony and a
purported comment made after Ryan decided to fire Keller,
much of the evidence is ambiguous as to whether the
statement represented criticism. For the most part, Credit
Alliance asks us to infer that questions about the progress
of the fundraising were criticisms of Keller's performance.
For example, Credit Alliance points to the fact that one of
its outside directors suggested that Keller be relieved of his
duties as Chief Credit Officer so he could concentrate on
raising funds, and asks that we consider this suggestion a
"criticism" of Keller's performance. However, we cannot
draw such an unwarranted inference at the summary
judgment phase, particularly in view of the fact that Keller
offered evidence that when questioned about the progress,
the board accepted his explanation that difficulties in the
U.S. and Japanese economies made it difficult to secure
funding on terms more favorable than the terms provided
by their current source.

Finally, the majority improperly relies on events which
occurred after Keller was fired. The majority suggests that
Credit Alliance's ability to raise nearly $500 million using
asset-backed securitization, the technique eschewed by
Keller, indicates that its dissatisfaction with Keller's work
was sincere. Majority Opinion at 16-17. However, this tactic
did not prove successful until after Keller's discharge so it
should not have any bearing on the determination of
whether Credit Alliance acted with a discriminatory
animus. "The employer could not have been motivated by

39

knowledge it did not have, and [therefore] it cannot . . .
claim that the employee was fired for the nondiscriminatory
reason." McKennon v. Nashville Banner Publishing Co., 513
U.S. 352, 360 (1995).

It is also true that Keller's performance subsequent to
Ryan's decision to terminate him is relevant for establishing
pretext. Ryan testified that if Keller had come up with a
plan and demonstrated some success in achieving it, he
(Ryan) might have changed his mind. Keller provided
evidence to demonstrate that he had done the preliminary
work on some, if not all, of the means of financing that
later proved to be successful. In particular, Keller points to
evidence that he formulated a plan to achieve Credit
Alliance's financing goal. In deposition testimony, Ryan
admitted that the steps outlined in the plan provided by
Keller were the ones followed by Credit Alliance in
successfully raising funds in 1993 and 1994. Also, Keller
successfully secured the $100 million private placement
that was the first step in improving Credit Alliance's credit
rating. Despite Keller's plan and demonstration of success,
however, Ryan terminated him. A jury could conclude that
Keller played a significant role in Credit Alliance's
subsequent attainment of its funding goal, and that Credit
Alliance's claim of poor performance, therefore, was
pretextual.

Given this evidence, there is a material issue of fact as to
whether Credit Alliance recognized the economic problems
associated with the fundraising and therefore whether
Keller's performance was the reason for his discharge.
If a factfinder were to accept Keller's evidence and
interpretation of that evidence, it could reasonably conclude
that Credit Alliance did not in fact fire him based upon any
dissatisfaction with his ability to raise financing. The
factfinder could then further conclude that Keller was
terminated because of his age. Fuentes, 32 F.3d 759, 764.
As material issues of fact remain in dispute, summary
judgment in favor of Credit Alliance is inappropriate.

III. FAILURE TO PROMOTE

Credit Alliance argues that Keller has not demonstrated
that he was qualified for the position of Chief Operating

40

Officer, did not apply for the position, and that he is
estopped from asserting a discrimination claim because as
a member of the board of directors he voted for Copper's
appointment. I believe that there is sufficient evidence in
the record for Keller's failure to promote claim to survive
summary judgment. First, Keller clearly established that he
was qualified for the position of Chief Operating Officer. In
reviewing qualifications, we must only look to objective
criteria, such as Keller's education and experience. See
Weldon, 896 F.2d at 798. Second, Keller correctly argues
that he was not required to apply for the position. See
Carmichael v. Birmingham Saw Works, 738 F.2d 1126,
1133 (11th Cir. 1984) (holding plaintiff can maintain claim
of discrimination, without having applied for job, if
employer "had some reason or duty to consider him for the
post"). Keller's senior management position, his prior
consideration for the position of President of Credit
Alliance, and Ryan's knowledge that Keller was interested
in the Chief Operating Officer position are sufficient to
establish a prima facie case as to this claim.

I do not believe that Credit Alliance's proffered
justification for refusing to consider or promote Keller
entitles it to summary judgment. According to Ryan, the
position of Chief Operating Officer required line experience
and a thorough understanding of the company's business,
which he claims Keller lacked. Yet, as discussed above,
Ryan's alleged statement that Keller may be too old to do
his job, made only weeks before the promotion decision, is
evidence from which a jury could infer discrimination.
Furthermore, Keller points to evidence from the Chair of
Credit Alliance's predecessor company that he did, in fact,
have a thorough understanding of the business and was
considered a candidate for president of the company at the
time Ryan was ultimately selected. In light of this evidence,
a factfinder could conclude that Credit Alliance's claim that
Keller was not qualified is pretextual. Consequently, there
is sufficient direct, as well as indirect, evidence from which
a factfinder could also conclude that Keller was not
promoted because of his age.

CONCLUSION

To summarize, I believe that there is sufficient direct and
indirect evidence of discrimination for Keller's ADEA and

41

NJLAD claims to survive summary judgment. I would,
accordingly, reverse the district court's judgment in its
entirety and remand for further proceedings.

Joined by Judges Mansmann and McKee.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

42