Keller v. Orix Credit Alliance, Inc.

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

2-3-1997

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Precedential or Non-Precedential:

Docket 95-5289

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

___________

No. 95-5289
___________

FREDERICK F. KELLER

Appellant,

vs.

ORIX CREDIT ALLIANCE, INC.

Appellee.

___________

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

(D.C. Civil No. 93-cv-03466)

___________

ARGUED MARCH 6, 1996

BEFORE: MANSMANN, ALITO and LEWIS, Circuit Judges.

(Filed February 3, 1997)

___________

Debra L. Raskin (ARGUED)
Vladeck, Waldman, Elias & Engelhard
1501 Broadway
Suite 800
New York, NY 10036

Attorney for Appellant

Edwin M. Baum (ARGUED)
Solomon, Zauderer, Ellenhorn, Frischer & Sharp
45 Rockefeller Plaza
New York, NY 10111

1
Steven L. Lapidus
Robinson, Lapidus & Livelli
Two Penn Plaza East
Newark, NJ 07105

Attorneys for Appellee

___________

OPINION OF THE COURT
___________

LEWIS, Circuit Judge.

In this age discrimination case, Frederick F. Keller

appeals from the district court's grant of summary judgment in

favor of his former employer, ORIX Credit Alliance, Inc. Keller

alleges that Credit Alliance violated the Age Discrimination in

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

Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et

seq., by failing to promote him to the position of Chief

Operating Officer, and then terminating his employment. Keller

makes three principal arguments: first, that summary judgment

was inappropriate because there was sufficient direct evidence of

discrimination to create a material issue of fact as to the

legitimacy of his discharge; second, that the district court

required Keller to establish an impermissibly burdensome prima

facie case under the McDonnell Douglas-Burdine line of authority;
and finally, that the indirect evidence of discrimination,

combined with evidence of pretext in Credit Alliance's proffered

reason for his discharge, created a material issue of fact.

For the reasons set forth below, we will reverse the

district court's grant of summary judgment.

2
 I.

Credit Alliance is a commercial finance company that

lends money to its customers for the lease or purchase of capital

equipment. Credit Alliance profits by borrowing money at one

interest rate, and lending it to its customers at a higher rate.

As of September, 1989, Frederick Keller was an Executive Vice

President and Director of Credit Alliance. His primary

responsibility was to raise the funds that Credit Alliance

intended to lend to its customers. Keller became responsible for

raising capital when Credit Alliance was sold in September of

1989 by First Interstate Bancorp to the ORIX Group. When Credit

Alliance was owned by First Interstate, First Interstate provided

most of Credit Alliance's capital needs. When ORIX acquired

Credit Alliance, however, it established a goal for Credit

Alliance to develop as quickly as possible its own "credit

facilities" in order to become financially independent from ORIX.

In the interim, ORIX arranged to have First Interstate continue

to provide working capital until Credit Alliance achieved

financial independence.

Keller was responsible for spearheading the effort to

acquire sufficient funding to achieve Credit Alliance's goal of

financial independence. Before the ORIX acquisition, Keller

estimated that it would require $1.5 billion to achieve financial

independence from First Interstate, and that this was an

attainable goal. Credit Alliance apparently adopted this figure

and used it to critique Keller's performance based on his

relative progress toward this figure.

3
 For reasons contested by both parties, Keller never

reached this goal. The most credit Keller was ever able to

acquire for Credit Alliance was $785 million as of September,

1991. By September 1992, however, the credit available to Credit

Alliance was reduced to $695 million because four of the seven

lines of credit arranged by Keller were terminated. Credit

Alliance contends that the reason Keller never reached his credit

goal was because he was unreceptive to creative fundraising

tools, lacked the initiative to pursue financing routes around

the country, and lacked the diplomatic skills to negotiate with

Japanese bankers. Keller argues that the economic recession, as

well as many sources' unwillingness to lend to Japanese-owned

firms because of the downturn in the Japanese economy, were the

true reasons for his inability to reach the funding goal.

Additionally, he points out that his job was to obtain financing

on the most favorable terms, and that because of the recession,

the financing provided by First Interstate was the most

favorable.

In April of 1992, Daniel Ryan, Credit Alliance's Chief

Executive Officer, met with Keller to discuss the financing

effort. Ryan complained that he had not observed Keller

traveling to develop relationships with bankers, and then

allegedly stated, "If you are getting too old for the job, maybe

you should hire one or two young bankers." Ryan admits saying

"maybe you should hire one or two young bankers," but he denies

saying "if you are getting too old for the job." Keller

documented the contents of this meeting in his journal, including

4
the statement Ryan admits making, but the "if you are getting too

old" part is not recorded in the journal.

According to Credit Alliance, Ryan and many members of

the Board of Directors overseeing Credit Alliance became

increasingly concerned about the progress being made toward

financial independence. The parties dispute where these people

placed the blame for the failure: Credit Alliance contends that

on many occasions it warned Keller that his performance was

unacceptable; in contrast, Keller maintains that while some board

members expressed their concern as to the progress being made,

they ultimately accepted Keller's assessment that the state of

the economy made it impossible for him to secure financing on

favorable terms.

In May of 1992, Ryan promoted Philip Cooper, age 43, to

the position of Chief Operating Officer. In the 18 months before

his promotion, Cooper had taken responsibility for a transaction

resulting in a four million dollar loss to Credit Alliance, and

his region had higher "past due" statistics than comparable

regions. Despite the fact that Keller had expressed an interest

in the position, Ryan did not consider Keller for Chief Operating

Officer. According to Ryan, he was looking for someone with

"line experience," and Keller was simply not qualified for the

position.

In September of 1992, Ryan decided to terminate Keller.

Ryan hired an executive search firm to find candidates for

Keller's position. Among the criteria listed by the defendant in

a potential candidate were "experience in implementing asset-

5
backed securitization programs and other creative forms of fund

raising, strong skills in working with rating agencies and

bankers, particularly Japanese bankers, and be result-driven."

In April of 1993, Ryan officially terminated Keller. He offered

Keller's failure to raise adequate financing and the resulting

displeasure of the Board of Directors and other ORIX officers as

the reason for Keller's termination.

At or shortly after the termination meeting, Keller,

while negotiating the amount of his severance pay, asked Ryan if

the reason for his dismissal was his age, and reminded Ryan of

the alleged age comment. Ryan then replied that Keller should

"do what he had to," because he had checked with their lawyer and

been assured that they would have no problem with an age

discrimination claim, but that he (the lawyer) could be wrong

because he was just a lawyer.

Ryan hired Joseph McDevitt, age 46, to replace Keller.

Within a year, McDevitt exceeded the $1.5 billion goal. The

parties' briefs do not disclose whether or not the terms of the

financing obtained by McDevitt were significantly more favorable

than from First Interstate.

Keller subsequently brought suit against ORIX in

federal district court alleging age discrimination under the ADEA

and the NJLAD, for failing to promote him to the position of

Chief Operating Officer a year prior to his dismissal, and for

terminating him in 1993. In ruling on Credit Alliance's motion

for summary judgment, the district court found that Keller had

not established a prima facie case. According to the district

6
court, the age difference between Keller and his replacement was

not sufficient to establish that he was replaced by someone

significantly younger, and because the undisputed evidence

demonstrates that Keller did not reach the financing goal, he was

not qualified for the position. Keller v. Orix, No. 93-3466,

slip op. at 8-9 (D.N.J. April 6, 1995). In the alternative, the

court concluded that even if Keller had established a prima facie

case, he did not establish that the legitimate business reason

proffered by Credit Alliance was a mere pretext for

discrimination. The court stated that:
Keller's failure to make adequate progress towards the
$1.5 billion independent financing goal is a
legitimate business reason for his
termination. * * * Keller's claim that it
was impossible to raise sufficient funds is
not persuasive in his attempt to prove that
Credit Alliance's proffered reason for
termination was merely pretext for
discrimination.

Id. at 10. The district court, therefore, granted Credit

Alliance's motion for summary judgment as to Keller's federal

claims, and dismissed the pendant state law claim. This appeal

followed.

II.

The district court had jurisdiction pursuant to 29

U.S.C. § 626(c) and 28 U.S.C. § 1367. We have jurisdiction over

the appeal pursuant to 28 U.S.C. § 1291. Our review of a

district court's grant of summary judgment is plenary, and we are

required to apply the same test the district court should have

utilized initially. Chipollini v. Spencer Gifts, Inc., 814 F.2d
893, 896 (3d Cir. 1987) (in banc). In a discrimination case, we

7
must determine whether there is sufficient evidence to create a

genuine issue as to whether the employer intentionally

discriminated. Weldon v. Kraft, 896 F.2d 793, 797 (3d Cir.

1990). For a defendant-employer to succeed, it must show that

"the plaintiff will be unable to introduce either direct evidence

of a purpose to discriminate or indirect evidence by showing that

the proffered reason is subject to factual dispute." Id.

(quoting Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.

1987)). We, of course, must examine the record in the light most

favorable to the party opposing summary judgment, and resolve all

reasonable inferences in his or her favor. Matsushita Electric

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);

Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986) ("[a]ny

doubt as to the existence of a genuine issue for trial should be

resolved against the moving party."); 10A Wright & Miller,

Federal Practice & Procedure § 2727 at 124-24 ("Because the

burden is on the movant, the evidence presented to the court

always is construed in favor of the party opposing the motion and

he is given the benefit of all favorable inferences that can be

drawn from it."). "This standard is applied with added rigor in

employment discrimination cases, where intent and credibility are

crucial issues." Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1162
(7th Cir. 1994).

III.

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,

8
conditions, or privileges of employment, because of such

individual's age." 29 U.S.C. § 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 from

evidence which creates an inference of discrimination under the

framework of McDonnell Douglas-Burdine. Keller argues that there

is sufficient evidence in this case to withstand a motion for

summary judgment under either approach.1

A. Mixed Motive under Price Waterhouse.

When an employee shows "by direct evidence that an

illegitimate criterion was a substantial factor in the

[employment] decision," Price Waterhouse v. Hopkins, 490 U.S.

228, 276 (1989) (O'Connor, J. concurring), the burden of

persuasion shifts to the employer to show that even if

discrimination was a motivating factor in the discharge, it would

have made the same decision absent the discriminatory animus.

Id. at 244-46; Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d

Cir. 1994). As Justice O'Connor noted in her concurring opinion

in Price Waterhouse:
Stray remarks in the workplace, while perhaps probative
of sexual harassment, cannot justify
requiring the employer to prove that its
hiring or promotional decisions were based on

1. For the purposes of summary judgment, whether Price
Waterhouse or McDonnell Douglas-Burdine governs is not directly
relevant. In evaluating a motion for summary judgment, a court
must simply determine whether there is sufficient evidence to
create a material issue of fact as to whether the employer relied
upon an illegitimate criterion in making its employment decision.
For the sake of clarity, however, we will address the evidence
in this case under both analytical frameworks.

9
 legitimate criteria. Nor can statements by
nondecisionmakers, or statements by
decisionmakers unrelated to the decisional
process itself, suffice to satisfy the
plaintiff's burden in this regard . . . .
What is required is . . . direct evidence
that decisionmakers placed substantial
negative reliance on an illegitimate
criterion in reaching their decision.

Id. at 277 (O'Connor, J. concurring) (citation omitted). The

Civil Rights Act of 1992 modified Price Waterhouse, making it

unlawful for an illegitimate criterion to be a motivating factor

for any employment practice, even though other factors may also

have motivated the practice. 42 U.S.C. § 2000e-2(m).

Accordingly, when an employee presents evidence that a

decisionmaker relied upon an illegitimate criterion, summary

judgment for the employer is rarely, if ever, appropriate.

Weldon, 767 F.2d at 797; Hankins, 829 F.2d at 440.
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). As we

have recognized, "[w]hen direct evidence is available, problems

of proof are no different than in other civil cases."

Chipollini, 814 F.2d at 896. The issue becomes whether or not

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.

10
1990). As the Court of Appeals for the Seventh Circuit has

observed,
When confronted with an action where there are two
alleged motives for the dismissal, one
legitimate and the other illegitimate, and
there exists more than a modicum of evidence
in support of the illegitimate motive, we
conclude that the law is generally better
served by having such cases examined in the
crucible of a contested hearing. A trial
becomes appropriate to evaluate whether the
employer is attempting to avoid liability
based on an illegitimate motive by simply
supplying a legitimate one at the summary
judgment phase.

Visser v. Packer Engineering Associates, Inc., 909 F.2d 959, 961

(7th Cir. 1990).

Typically, what is commonly understood as direct

evidence is not available because the decisionmaker "is unlikely

to admit that he fired an employee because of age or sex." Hook

v. Ernst & Young, 28 F.3d 366, 374 (3d Cir. 1994). "Employers

are rarely so cooperative as to include a notation in the

personnel file, `fired due to age,' or to inform a dismissed

employee candidly that he is too old for the job." Thornbrough

v. Columbus & Greenville R.R., 760 F.2d 633, 638 (5th Cir. 1985).

Consequently, "circumstantial evidence `tied directly to the

alleged discriminatory animus' is sufficient to constitute direct

evidence justifying a burden-shifting instruction." Id. (quoting
Ostrowski v. Atlantic Mut. Ins. Companies, 968 F.2d 171, 182 (2d

Cir. 1992)).
If, however, the plaintiff's nonstatistical evidence is
directly tied to the forbidden animus, for
example policy documents or statements of
persons involved in the decisionmaking
process that reflect a discriminatory or
retaliatory animus of the type complained of

11
 in the suit, that plaintiff is entitled to a
burden shifting instruction.

Id. (quoting Ostrowski, 968 F.2d at 182) (emphasis added). The

term "direct evidence," therefore, is an unfortunate misnomer.

Id. In other words, to come within the Price Waterhouse

framework, the evidence presented by the plaintiff need only

reflect a discriminatory animus on the part of a person involved

in the decisionmaking process. Id.; Armbruster, 32 F.3d at 778.

Keller provided evidence that reflects a discriminatory

animus on the part of a person involved in the decisionmaking

process. Keller testified that during the first meeting in which

he was ever criticized about his job performance, Ryan

specifically stated that "[i]f you are getting to old for the

job, maybe you should hire one or two young bankers."2

Ryan's statement that Keller may be getting too old to

do his job is sufficient evidence of discriminatory animus under

Price Waterhouse.3 First, as CEO of the company, Ryan is clearly

2. Credit Alliance argues that because the "too old" comment
does not appear in Keller's contemporaneous notes, it should be
disregarded. While this is certainly a powerful argument for a
jury, Credit Alliance's argument goes to the weight of the
evidence, and is a question for the finder of fact. Shager, 913
F.2d at 402 ("[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.").

3. The district court did not address Keller's claim that this
comment is sufficient as direct evidence of discrimination or
that it supports an inference of discrimination. Instead, the
court does not appear to have focused upon the inferences and
presumption that the nonmoving party is entitled to, and simply
accepted Credit Alliance's interpretation of the statement as
authorizing Keller to hire additional staff. See Keller, slip
op. at 4.

12
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 properly perform his job and that he hire younger

bankers could reflect discriminatory animus toward Keller's 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. We

can only conclude, therefore, that it was related to the

decisionmaking process itself. Ryan himself admits (in fact

argues) that he was critical of Keller's performance at the time

this alleged comment was made. Finally, Ryan decided to fire

Keller only a few months later. The age related comment,

therefore, is probative of the factors considered in Ryan's

decision to terminate Keller. See Robinson, 23 F.3d at 1165

(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 402 (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).

Credit Alliance argues that this statement is simply a

stray remark, and is therefore not direct evidence of

13
discrimination. The thrust of its argument is that this was the

only age related remark Keller could recall. A single comment,

however, is not necessarily a stray remark merely because it was

only uttered on one occasion. 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. 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. Robinson, 23 F.3d at 1165 (holding that potentially age

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). Because

14
Keller presented circumstantial evidence which could allow a jury

to conclude that Ryan relied on an illegitimate criterion in

making his employment decision, 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.

B. Pretext under McDonnell Douglas-Burdine.

While Price Waterhouse involves evidence which directly

reflects discriminatory animus, cases under McDonnell Douglas-

Burdine involve circumstances which, if left unexplained or

without a credible explanation, allow a jury to infer

discriminatory animus. As the Supreme Court has noted,
we are willing to presume this largely because we know
from our experience that more often than not
people do not act in a totally arbitrary
manner, without any underlying reasons,
especially in a business setting. Thus, when
all legitimate reasons for rejecting an
applicant have been eliminated as possible
reasons for the employer's actions, it is
more likely than not the employer, who we
generally assume acts only with some reason,
based his decision on an impermissible
consideration such as race.

Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)
(emphasis in original); Chipollini, 814 F.2d at 897. The Supreme

Court, therefore, established the now familiar shifting burdens

of production.
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie
case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant to
articulate some legitimate, nondiscriminatory
reason for the employee's rejection. Third,

15
 should the defendant carry this burden, the
plaintiff must then have an opportunity to
prove by a preponderance of the evidence that
the legitimate reasons offered by the
defendant were not its true reasons, but were
a pretext for discrimination.

Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 253-53

(1981) (citations omitted). These shifting burdens "are designed

to assure that the `plaintiff [has] his day in court despite the

unavailability of direct evidence.'" Trans World Airlines, Inc.

v. Thurston, 469 U.S. 111, 121 (1985) (quoting Loeb v. Textron,

Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)). In this case, the

district court concluded that Keller failed to establish a prima

facie case, and in the alternative that he failed to present any

evidence that Credit Alliance's proffered reason was pretextual.

We disagree.

1. The Prima Facie Case under the ADEA.

To establish a prima facie case of age discrimination

under the ADEA, Keller must show: (1) that he belongs to the

protected class; (2) that he was qualified for the position;

(3) that he suffered an adverse employment decision; and (4) that

he was replaced by someone sufficiently younger to permit an

inference of age discrimination or his employer continued to seek

applicants from among those having his qualifications. Sempier
v. Johnson & Higgins, 45 F.3d 724, 728 (3d Cir. 1995);

Chipollini, 814 F.2d at 897. See O'Connor v. Consolidated Coin

Caterers Corp., 116 S. Ct. 1307 (1996). According to the

district court, Keller failed to demonstrate that he had been

replaced by someone sufficiently younger or that he was qualified

16
for the position. But as we have noted, "the prima facie case

under the McDonnell Douglas-Burdine pretext framework is not

intended to be onerous." Id. at 728. And as the Supreme Court

has noted, all that is required is "evidence adequate to create

an inference that an employment decision was based on a[n]

[illegal] discriminatory criterion . . . ." Teamsters v. United

States, 431 U.S. 324, 358 (1977). For the following reasons, we

conclude that the district court required Keller to establish an

impermissibly demanding prima facie case.

A)Keller's Qualifications.

At the prima facie stage of the litigation, a plaintiff

"only needs to demonstrate that [he] `possesses the basic skills

necessary for the performance of [the] job.'" Owens v. New York

City Housing Auth., 934 F.2d 405, 409 (2d Cir. 1991) (citations

omitted). As we have stated, a plaintiff's qualifications for

purposes of proving a prima facie case is determined by an

objective standard. Sempier, 45 F.3d at 729; Weldon v. Kraft,

Inc., 896 F.2d 793, 798 (3d Cir. 1990); Jalil v. Avdel Corp., 873

F.2d 701, 707 (3d Cir. 1989). Accordingly, the proper inquiry is

whether Keller had the "objective experience and educational

background necessary to qualify as a viable candidate for the

position[] he held." Sempier, 45 F.3d at 729. Any subjective

analysis of the employee's job performance is properly examined

at the pretext stage of the litigation. Id.; Weldon, 896 F.2d at

798. Even arguably quantifiable measures such as "productivity"

and "output" can constitute a "subjective determination by [the

defendant] of the performance level [plaintiff] had to achieve."

17
Weldon, 896 F.2d at 799. We rely upon objective factors alone

because subjective evaluations "are more susceptible of abuse and

more likely to mask pretext." Id. at 798 (citing Fowle v. C & C

Cola, 868 F.2d 59, 64-65 (3d Cir. 1989)). Denying a plaintiff

"the opportunity to move beyond the initial stage of establishing

a prima facie case because he has failed to introduce evidence

showing he possesses certain subjective qualities would

improperly prevent the court from examining the criteria to

determine whether their use was mere pretext." Id.

When viewed in the light most favorable to the

nonmoving party, Keller clearly established that he was

objectively qualified for his position. First, Keller's

qualifications were easily established by the mere fact that he

had held an executive position with Credit Alliance for over

sixteen years. Sempier, 45 F.3d at 729 ("Sempier had the

objective experience and education necessary to qualify as a

viable candidate for the positions he held. He had held

executive positions at J & H for over twenty years."). In

addition, Keller had served on the board of directors for over

six years, and had been considered for the position of President

of the company. While it is, of course, possible for a company

to employ an unqualified individual and promote him or her to the

highest levels of management, it would be imprudent for us to

presume such an unlikely scenario at the summary judgment phase.

We reached the same conclusion with similar facts in Sempier.
In that case, we noted that:
the record of [the plaintiff's] twenty years employment
as an executive, his record as Comptroller

18
 and then Treasurer of J & H, his election to
the Board on two occasions, and his
appointment as Chief Financial Officer and
then as Chief Administrative Officer leads to
the almost inevitable inference that he was
qualified for the position from which he was
discharged.

Id. at 729. In this case, Keller's objective qualifications lead

inevitably to the conclusion that he was qualified for the

position from which he was discharged.

The district court found that Keller was not qualified

for his job because he had failed to make adequate progress

toward his stated goal of raising $1.5 billion. But while the

amount of funds Keller actually raised is obviously measured by

an objective standard, the question whether Keller made adequate

progress toward his goal is an inherently subjective

determination. In other words, whether Keller's progress can be

considered adequate depends not only upon his results and the

context in which those results were achieved, but whether Credit

Alliance was satisfied with those results. A subjective analysis

of Keller's performance and the reasons for his failure is

misplaced at the prima facie stage. Weldon, 896 F.2d at 798-99

("[W]hile objective qualifications should be considered in

evaluating the plaintiff's prima facie case, the question of
whether an employee possesses a subjective quality . . . is

better left to the later stage of the McDonnell Douglas

analysis."); Fowler, 868 F.2d at 64-65.

A plaintiff need only demonstrate that he or she

possessed the objective experience and education necessary to

perform the job in question. Keller's education, promotions, and

19
more than sixteen years of service as an executive for Credit

Alliance are sufficient to demonstrate that he was qualified for

his position for purposes of establishing a prima facie case

under the ADEA. The question whether Keller's performance in

reaching Credit Alliance's funding goal was adequate is a

subjective determination best left to the pretext stage under

McDonnell Douglas-Burdine.4

B)Replaced by Someone Sufficiently Younger.

In order to establish a prima facie case, the plaintiff

must also demonstrate that he or she was replaced by someone

sufficiently younger to permit an inference of age

discrimination. Sempier, 45 F.3d at 728. The district court

found that Keller did not meet this requirement because he was

replaced by someone only five years younger. Keller, slip op. at

8.5 We disagree.

4. The cases relied upon by Credit Alliance for the
proposition that employees must demonstrate that they were
performing their jobs adequately as an element of the prima facie
case are readily distinguishable. In every case, the plaintiff
conceded that his or her performance was deficient and offered no
explanation for the poor performance. See Perry v. Prudential
Bache Securities, Inc., 738 F. Supp. 843, 848 n.1 (D.N.J. 1989),
aff'd without opinion, 904 F.2d 696 (3d Cir. 1990); Spangle v.
Valley Forge Sewer Auth., 839 F.2d 171, 173-74 (3d Cir. 1988);
Dale v. Chicago Tribune Co., 797 F.2d 458 (7th Cir. 1986).
Credit Alliance's argument that Keller admitted that he was not
qualified for the job is similarly misplaced. Although Keller
admits that he did not reach the financing goal, he never
admitted that he was unqualified, or that he was responsible for
the failure to reach the target. Appellee's Br. at 26.

5. Both the district court and Credit Alliance state the age
difference between Keller and his replacement as four years. The
evidence, however, clearly demonstrates that at the time Keller
was fired, he was 51 and his replacement, Joseph McDevitt was 46.

20
 Although the district court did not have the benefit of

guidance from the Supreme Court on this particular issue at the

time it rendered its decision, the Court has since held that

there is no particular age difference which must be shown to make

out a prima facie case. O'Connor, 116 S. Ct. at 1310 (holding

that a plaintiff need not be replaced by someone outside the

protected class to establish a prima facie case); Sempier, 45

F.3d at 729. 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, Douglas v.
Anderson, 656 F.2d 528, 533 (9th Cir. 1981),
but that a one year difference cannot. [Gray
v. York Newspapers, Inc., 957 F.2d 1070, 1087
(3d Cir. 1992)].

Sempier, 45 F.3d at 729. 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 establish a prima facie case,

the evidence need only create an inference of discrimination if

the employer's actions are left unexplained. O'Connor, 116 S.
Ct. at 1310. Accordingly, the "replacement by even an older

employee will not necessarily foreclose prima facie proof if

other direct or circumstantial evidence supports an inference of

discrimination." Douglas v. Anderson, 656 F.2d at 533. As the

Supreme Court has emphasized, "[t]he fact that one person in the

21
protected class has lost out to another person in the protected

class is thus irrelevant, so long as he has lost out because of

his age." O'Connor, 116 S. Ct. at 1310.

In Sempier, for example, we found that the plaintiff

had established a prima facie case despite being replaced by

someone only four years younger. 45 F.3d at 729-730. 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 establish

a prima facie case. Id.

We conclude that if left unexplained, the five year age

difference between Keller and his replacement, when combined with

the other elements of the McDonnell Douglas prima facie case

standard, is sufficient to establish an inference that Keller's

age was a motivating factor in Credit Alliance's decisions.

Accord Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir. 1981).

Given Keller's experience, and the fact that the age difference

spans a difference in chronological decades, so to speak (Keller

was in his "fifties" while his replacement was in his "forties"),

this age difference is sufficient to support such an inference.

See also 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.").

22
 Finally, as we discussed above in the context of Price

Waterhouse and will address below in the context of McDonnell

Douglas-Burdine, the record contains evidence beyond the prima

facie case that creates an inference of discrimination. Ryan's

alleged age-related comments support an inference that Credit

Alliance's employment decisions with respect to Keller were based

upon his age. This renders the age of Keller's replacement less

relevant for purposes of establishing a prima facie case.

O'Connor, 116 S. Ct. at 1310 ("[T]he proper solution to the

problem lies not in making an utterly irrelevant factor an

element of the prima facie case, but rather in recognizing that

the prima facie case requires `evidence adequate to create an

inference that an employment decision was based on a[n] [illegal]

discriminatory criterion . . . .'") (citation omitted).

In sum, because Keller has sufficiently demonstrated

that he was qualified for the position from which he was

discharged, that he was replaced by someone sufficiently younger,

and there is additional evidence beyond the McDonnell Douglas-

Burdine prima facie case standard from which a jury could

conclude that Credit Alliance's employment decisions were

motivated by Keller's age, the district court erred when it

concluded that Keller failed to establish a prima facie case.
2.Evidence Supporting An Inference of Discrimination.

The district court did not address Keller's claim that

Ryan's comment was direct evidence of discrimination, apparently

because it concluded that Keller had failed to provide sufficient

evidence to demonstrate pretext under McDonnell Douglas-Burdine.

23
 But even if we were to assume that Keller's evidence is

insufficient under the Price Waterhouse standard, it is more than

sufficient to withstand summary judgment under McDonnell Douglas-

Burdine standard. First, because Keller offered evidence beyond

the prima facie case from which an inference of discrimination

could be drawn, Credit Alliance's proffered legitimate reason

merely creates a material issue of fact as to whether the

decision to terminate Keller was motivated by discriminatory

animus. Waldron v. SL Indus., Inc., 56 F.3d 491, 495, 502-03 (3d

Cir. 1995); Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Second, Keller has offered sufficient evidence that could

support a finding that the proffered reason is pretext, which

creates a material issue of fact as to the credibility of Credit

Alliance's proffered reason.

A)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. We have also consistently held that 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, 50 F.3d at 1215. Evidence of age-

biased comments made by a supervisor, therefore, could support an

inference that the termination decision was made because of the

24
plaintiff's age. Id. at 1214; Torre v. Casio, Inc., 42 F.3d 825,

834 (3d Cir. 1994); Armbruster, 32 F.3d at 783.
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 Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 54
(3d Cir. 1989) (finding age-biased comment
relevant even when made subsequent to
plaintiff's termination); 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. When combined with Keller's prima facie

case, Ryan's suggestion that perhaps Keller was getting "too old"

for the job, and that maybe 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.3d at 733. In Lockhart,

we found that a reasonable jury could also consider the statement

"Westinghouse Credit was a seniority driven company with old

management and that's going to change, `I'm going to change

that,'" as evidence of age-bias. 879 F.2d at 54. Similarly, in

Waldron 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

25
more likely than not a determinative factor. 56 F.3d at 502.

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 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.

Because Keller produced evidence that 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 for a jury to

resolve. The district court's grant of summary judgment to

Credit Alliance, therefore, was inappropriate. Credit Alliance

failed to satisfy its burden of proving the absence of genuine

issues of material fact.
B)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., slip. op.

at 12-13 (3d Cir. 1996) (en banc)). Credit Alliance's proffered

reason for terminating Keller was his failure to make adequate

26
progress toward achieving their financing goal. Credit Alliance

argues, and the district court concluded, 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. Keller, slip op. at 10. This misinterprets both Keller's

evidence and 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 which 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. 1992), 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 Keller's argument and evidence 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.

To support his claim that his performance did not play

a role in Ryan's decision to fire him, Keller presented evidence

that Credit Alliance's difficulty in obtaining greater financing

was due to factors substantially beyond his control, and more

importantly, that Credit Alliance recognized this fact. Keller

27
argues that one of the reasons that Credit Alliance had

difficulty obtaining new funding was that it had a poor credit

rating which was influenced by its performance and the downturn

of the Japanese economy. (Credit Alliance's parent company,

ORIX, is a Japanese owned company.) To support his argument

Keller submitted documents from several ratings agencies. Keller

also submitted evidence which focused upon the banks' reluctance

to do business with Credit Alliance because of its poor credit

rating, the trouble with the Japanese economy, and Credit

Alliance's level of delinquent accounts. In fact, several

sources which decided to discontinue funding Credit Alliance

justified their decision with these various reasons.

Keller also submitted affidavits and depositions to

support his claim that he had informed the board of these

difficulties and that the board accepted his explanation. In

particular, one member of the board of directors specifically

corroborates Keller's claim through December of 1991. According

to the former director:
At the board of directors meetings, Keller described
the obstacles in securing credit facilities
including Credit Alliance's past due accounts
and the company's status as a subsidiary of a
Japanese corporation. No one challenged or
disagreed with Keller's presentations at
those 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.

A1126 (Affidavit of Neil Umhafer). In addition, Keller points to

file memos that he sent to Ryan which detailed the bankers'

statements that they would not lend to Credit Alliance because of

28
its Japanese parent company, the nature of Credit Alliance's

business, or because of the conservative approach toward lending

adopted by many in the credit market at the time.

Keller, therefore, relied upon evidence that 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 its poor showing

was not attributable to him. Seen in the light most favorable to

Keller, a reasonable jury could consider Credit Alliance's

explanation that Keller was fired for "poor performance"

pretextual. 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. . . . [T]he 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

(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,

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, 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, 1133 (S.D.N.Y. 1989)

(sufficient evidence that defendant's criticism of plaintiff's

29
performance was pretextual where problems of his department were

attributable, at least in part, to matters beyond his control).

In further support of his claim, Keller points to the

absence of any official criticism of his performance. In

Sempier, 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 721-32. 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 as "criticism" of Keller's performance. But

that would require us to draw 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.

30
 Finally, Keller argues that the district court

improperly relied upon events that occurred after he was

terminated (i.e., the success of his younger replacement), and

also failed to acknowledge the role he played in those subsequent

events. As an initial matter, we agree with Keller that the

district court improperly relied upon his successor's

performance. The fact that his successor reached Credit

Alliance's goal has no bearing on whether the decision to fire

Keller was motivated by discriminatory animus. "The employer

could not have been motivated by knowledge it did not have, and

it cannot claim that the employee was fired for the

nondiscriminatory reason." McKennon v. Nashville Banner

Publishing Co., 115 S. Ct. 879, 885 (1995).

We also agree 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. For example, Keller

briefed Ryan about the possibility of asset-backed securitization

as a method of raising funds, and it was only months after Ryan

31
decided to fire Keller that Ryan decided to pursue this method.

Keller also successfully secured a $100 million private placement

which 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 ability

to reach 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 or not Credit Alliance recognized the economic

problems associated with the fundraising and whether or not

Keller's performance, therefore, was the reason for his

discharge. If a jury 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. If a jury

were to reject Credit Alliance's proffered reason, it could then

reasonably conclude that Keller was terminated based upon his

age. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); see

also St. Mary's Honor Center v. Hicks, 509 U.S. 502, (1993). As

material issues of fact remain in dispute, summary judgment in

favor of Credit Alliance was inappropriate.

C. Failure to Promote.

The foregoing analysis of the evidence is applicable to

both the wrongful discharge and the failure to promote claims,

and will not be repeated here. We will, however, clarify several

32
additional points raised by Credit Alliance that relate

specifically to the failure to promote.

Credit Alliance argues that Keller has not demonstrated

that he was qualified for the position of Chief Operating

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. We believe

that there is sufficient evidence in the record for Keller's

failure to promote claim to survive summary judgment. First,

Keller clearly established a prima facie case that he was

qualified for the position of Chief Operating Officer. Once

again, the question is only whether he had the objective

education and experience necessary. See supra section III.B.1.A.

Second, Keller correctly argues that he was not required to

apply for the position. "[I]t is sufficient to make out a prima

facie case for a plaintiff to `establish[] that the company had

some reason or duty to consider him for the post.'" Fowle v. C &

C Cola, 868 F.2d at 68. 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. Finally, there is no support

for the argument that Keller is estopped from challenging his

failure to be promoted because he voted with the other board

members in ratifying Ryan's appointment. As Keller correctly

notes, the equal employment laws do not impose a requirement of

33
contemporaneous complaint or repeated protests. See Townsend v.

Indiana Univ., 995 F.2d 691, 693 (7th Cir. 1993).

Nor do we agree with Credit Alliance that its proffered

justification for not considering or promoting 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. 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. Similarly, 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 jury

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 jury could

conclude that Keller was not promoted because of his age.

IV.

Because the district court also dismissed Keller's

claims under the New Jersey Law Against Discrimination, we must

briefly address the NJLAD claims. As the NJLAD and the ADEA "are

governed by the same standards and burden of proof structures

applicable under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq.", Waldron, 56 F.3d at 503; Erickson v.
Marsh & McLennan Co., 117 N.J. 539, 569 (1990); Clowes v.

34
Terminix Int'l, Inc., 109 N.J. 575 (1988), our discussion of

Keller's claims under the ADEA applies here as well, and the

district court's grant of summary judgment as to the NJLAD claim

will be reversed.

V.

To summarize, we find that there was sufficient direct

and indirect evidence of discrimination for Keller's ADEA and

NJLAD claims to survive summary judgment. We will, therefore,

reverse the district court's judgment in its entirety and remand

for further proceedings consistent with this opinion.

ALITO, Circuit Judge, dissenting.

I respectfully dissent for three reasons.

First, I disagree with the majority's holding that

there is enough "direct" evidence of age discrimination to cause

the burden of persuasion to shift to the company. Justice

O'Connor's controlling opinion in Price Waterhouse v. Hopkins,

490 U.S. 228, 276 (1989) (O'Connor, J., concurring in the

judgment), concluded that, in order for the burden of persuasion

to shift, "a disparate treatment plaintiff must show by direct

evidence that an illegitimate criterion was a substantial factor

in the decision." She explained that "[a]s an evidentiary

matter, where a plaintiff has made this type of strong showing of

illicit motivation, the factfinder is entitled to presume that

the employer's discriminatory animus made a difference to the

outcome, absent proof to the contrary from the employer." Id.
She continued:

35
Thus, stray remarks in the workplace, while perhaps probative of
[discrimination], cannot justify requiring the employer
to prove that its hiring or promotion decisions were
based on legitimate criteria. Nor can statements by
nondecisionmakers, or statements by decisionmakers
unrelated to the decisional process itself, suffice to
satisfy the plaintiff's burden in this regard. . . .
What is required is what Ann Hopkins showed here:
direct evidence that decisionmakers placed substantial
negative reliance on an illegitimate criterion in
reaching their decision.

Id. at 277 (emphasis added; internal citation omitted); see also,

Armbruster v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994); Hook

v. Ernst & Young, 28 F.3d 366, 373-76 (3d Cir. 1994);6 Griffiths

6. The majority states: "`circumstantial evidence "tied
directly to the alleged discriminatory animus" is sufficient to
constitute direct evidence justifying a burden-shifting
instruction.'" Maj. Op. at 12 (quoting Hook, 28 F.3d at 374
(quoting Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 182
(2d Cir. 1992)). This statement is inconsistent with Justice
O'Connor's opinion in Price Waterhouse, with Hook, and with
Ostrowski. In order for the burden to shift, the plaintiff must
not only show discriminatory animus on the part of a
decisionmaker but must connect that animus to the challenged
employment decision. In Ostrowski, the court stated:

[I]f the plaintiff presents evidence of conduct or statements by
persons involved in the decisionmaking process that may
be viewed as directly reflecting the alleged
discriminatory attitude, and that evidence is
sufficient to permit the factfinder to infer that that
attitude was more likely than not a motivating factor
in the employer's decision, the jury should be
instructed that if it does draw that inference the
plaintiff is entitled to recover unless the employer
has established by a preponderance of the evidence that
the employer would have taken the same action without
consideration of the impermissible factor.

968 F.2d at 182 (emphasis added); see also Griffiths, 988 F.2d

at 470. The statement in Hook that the majority partially quotes

was as follows:

36
v. CIGNA Corp., 988 F.2d 457, 469-70 (3d Cir.), cert. denied, 510

U.S. 865 (1993).7

In holding that the burden of persuasion should shift

in this case, the majority relies solely on a remark allegedly

made by Orix's chief executive officer, Daniel Ryan, about four

or five months before Ryan decided that Keller should be

terminated. In 1989, Keller was given and accepted the task of

arranging for $1.5 billion in financing, but he never came close

to that target. In April 1992, according to Keller's deposition,

Ryan, who himself was more than 60 years of age, allegedly said

to him: "If you are getting too old for the job, maybe you should

hire one or two young bankers."8 If Keller's account is

believed, Ryan's remark is relevant to show age bias.

But "[n]ot all evidence that is probative of

discrimination will entitle the plaintiff to [shift the burden of

persuasion] to the defendant under Price Waterhouse." Griffiths,
(..continued)
Ostrowski . . . recognizes that circumstantial evidence "tied
directly to the alleged discriminatory animus" must be
produced to justify a burden-shifting instruction.

28 F.3d at 374 (quoting Ostrowski, 968 F.2d at 182). This
sentence stated that proof of discriminatory animus is necessary,
and later Hook made clear that such proof is not sufficient. See
28 F.3d at 375 (statements by decisionmaker that were not
"related to the decision process" not enough). But the majority
confuses what is necessary with what is sufficient.

7. This portion of Griffiths was unaffected by Miller v. CIGNA,
47 F.3d 586 (3d Cir. 1995) (in banc).

8. Ryan denied saying anything about Keller's being too old, and
Keller's contemporaneous notes of this conversation also omit
this portion of Ryan's alleged remark. Keller's notes say
simply: "He [Ryan] suggested I hire one or two young bankers."
At the summary judgment stage, however, we must accept the
version of the conversation set out in Keller's deposition.

37
988 F.2d at 470 (citation and internal quotation omitted); see

also Hook, 28 F.3d at 374. Ryan's alleged remark does not

constitute the type of "strong showing" that is needed to shift

the burden of persuasion. The remark does not refer to the

decision to fire Keller but rather to the hiring of "young

bankers" to help him. See Hook, 28 F.3d at 375 (remarks did not

shift the burden of persuasion because, "[a]lthough they were

made by a decisionmaker, there is no evidence they were related

to the decision process"). And according to Keller himself, the

remark was uttered approximately four months before the decision

to fire him was made. See id. (statements "temporally remote"

from the challenged employment decision constitute weak evidence

of bias in the decision making process). In order for the burden

of persuasion to shift, "[w]hat is required is . . . direct

evidence that decisionmakers placed substantial negative reliance

on an illegitimate criterion in reaching their decision." 490

U.S. at 277 (O'Connor, J., concurring in the judgment). Ryan's

alleged remark does not meet this standard. Rather, it is an

example of precisely the type of proof that Justice O'Connor

found to be insufficient: a "statement[] by [a] decisionmaker[]

unrelated to the decisional process itself. Id. The majority

has not cited a single case holding that a remark like that

attributed to Ryan is enough to shift the burden of persuasion.9

I submit that the majority's holding here is wrong.10

9. The majority cites Robinson v. PPG Industries, Inc., 23 F.3d
1159 (7th Cir. 1994). See Maj. Op. at 14. In Robinson, however,
the comments concerned discharge, see 23 F.3d at 1161-62, whereas
here Ryan's alleged remark concerned the hiring of assistants for
Keller. In addition, in Robinson, the remarks were allegedly

38
 Second, I disagree with the majority's conclusion that

the difference between Keller's age at the time of his firing

(51) and that of his replacement (46) was "`sufficiently wide to

give rise to an inference of discrimination.'" Maj. Op. at 24

(quoting Barber v. CSX Distribution Serv., 68 F.3d 694, 699 (3d

Cir. 1995). When the Supreme Court crafted the McDonnell Douglas

prima facie case, it apparently concluded that there were a

(..continued)
made on several occasions, both before and after the termination,
see id. at 1164, and the remarks were broad statements that
"could be construed as interpretations of a corporate goal to
boot employees out before they retired." Id. at 1165. In this
case, Ryan allegedly made one comment, several months before he
decided that Keller should be discharged, and the remark cannot
be construed as involving a broad company policy.

The majority also cites Shager v. Upjohn Co., 913 F.2d
398 (7th Cir. 1990). See Maj. Op. at 14. But Shager did not
hold that the remarks made by the supervisor in that case were
sufficient to shift the burden of persuasion. Instead, it held
only that the remarks, together with evidence of pretext, was
enough to defeat summary judgment under the McDonnell Douglas
scheme. See 913 F.2d at 402.

10. The distinction between cases in which the discriminatory
animus played a role in the employment decision and those in
which it did not is critical because it fits into the notion
that, in different sectors of the economy, market forces work
differently to eradicate discrimination. In sectors of the
economy where the competitive pressures of the market work to
ensure that even if an employer has a personal animus against a
particular group, he will not exercise it because of a fear that
such behavior will result in his producing lower quality products
and being driven out of the market, one should be reluctant to
impose the costs of legal regulation. In other words, in these
sectors, although employers might have irrational prejudices,
they are unlikely to exercise them because of a fear of market
discipline.

On the other hand, in those sectors of the economy where
competitive pressures do not work as well and employers with a
discriminatory animus feel that they can exercise it without the
fear of being driven out of the market, there is a need for legal
regulation. See, e.g., Richard A. Posner, Aging and Old Age,
334-35 (1995).

39
number of employers who harbored a sufficient degree of racial

prejudice that they would pass over better qualified African-

American applicants in favor of inferior white applicants, even

though it was contrary to the employers' economic interests to do

so. Thus, the rejection of a qualified African-American in favor

of a white gave rise to an inference of discrimination and

provided a reason for shifting the burden of production. But is

a similar inference reasonable when a 51-year old banker is

replaced by a 46-year old in a decision made by a 60 year old?

Are there a significant number of employers who harbor such

prejudice against 51-year old bankers, as opposed to 46-year old

bankers, that they are willing to favor the 46-year olds over the

51-year olds, even though that will work against the employer's

economic interests? Cf. Posner, Aging and Old Age at 320 ("[T]he

kind of `we-they' thinking that fosters racial, ethnic, and

sexual discrimination is unlikely to play a large role in the

treatment of the elderly worker") (footnote omitted); Thomas S.

Ulen, The Law and Economics of the Elderly, 4 Elder L.J. 99, 124-

25 (1996). Moreover, isn't the replacement of 51-year olds with

46-year olds a sisyphean task? After all, time's winged chariot

hurries on; McDevitt, the 46-year old who was hired to replace

Keller, recently turned 50 and by the time this case is over may

well have achieved the milestone that allegedly resulted in

Keller's demise. Unlike the majority, I would hold that the age

gap in this case is not wide enough to make out a prima facie

case.11
11. This case is distinguishable from Sempier v. Johnson &

40
 Third, under the test set out in Fuentes v. Perskie,

32 F.3d 759, 764-65 (3d Cir. 1994), which our in banc court

reaffirmed in Sheridan v. DuPont, No. 94-7509, 1996 WL 659353,

(Nov. 14, 1996), I do not think that the plaintiff adequately

refuted the employer's legitimate reasons for his termination.

Under this test, a plaintiff who has made out a prima facie case

may defeat a motion for summary judgment by either (i)

discrediting the proffered reasons, either circumstantially or

directly, or (ii) 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. Moreover, "[t]o discredit the

employer's proffered reason . . . the plaintiff cannot simply

show that the employer's decision was wrong or mistaken [but]

must demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could rationally find them 'unworthy of

credence' . . . and hence infer 'that the employer did not act

(..continued)
Higgins, 45 F.3d 724, 730 (3d Cir.), cert. denied, 115 S.Ct. 2611
(3d Cir. 1995). There, the court held that the plaintiff had
shown that his replacement was sufficiently younger by producing
evidence that some of the plaintiff's duties were assumed by a
person who was 10 years younger and some were assumed by a person
who was four years younger. 45 F.3d at 729-30. Thus, the gap in
Sempier is somewhat larger than the gap here, and I think that
Sempier is a good place to draw the line.

Id. at 765 (emphasis in original; citation omitted).

41
for [the asserted] non-discriminatory reasons.'" Id. at 765

(emphasis in original; citation omitted).

In this case, I do not think that the plaintiff

satisfied the first prong of the Fuentes test. The company says

that it fired him because his performance was deficient, and it

points to strong supporting evidence. As noted, Keller was

supposed to raise $1.5 billion in financing, but he fell far

short of this goal. Moreover, the company points to evidence

that the goal was attainable: Keller's replacement met it in less

than one year. In sum, there was a strong legitimate economic

rationale for the employer to have made the decision it did. In

our eagerness to ferret out and eradicate discriminatory abuse we

must be careful not to deter employers from making legitimate

business decisions.

The evidence adduced by Keller to show that this

explanation was pretextual might at most be sufficient to raise a

genuine question as to whether the company's evaluation of his

performance was correct, but Keller's evidence does not

"demonstrate such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder

could rationally find them `unworthy of credence.'" Id.

I also do not think that Keller satisfied the second

prong of the Fuentes test, which requires "evidence . . . that

discrimination was more likely than not a motivating or

determinative cause of the adverse employment action." Id. Viewed
together with the rest of the evidence, Ryan's alleged statement

42
is not sufficient to meet this requirement. Thus, I do not think

that Keller created a genuine question concerning the employer's

proffered legitimate reason. I would therefore affirm the

decision of the district court with respect to both Keller's

failure to promote and his discharge claims.

43