Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-14-2004
Glanzman v. Metro Mgmt Corp
Precedential or Non-Precedential: Precedential
Docket No. 03-4546
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4546
JULIA ANN GLANZMAN
v.
METROPOLITAN MANAGEMENT CORPORATION
Julia A. Glanzman,
Appellant
_________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-07195)
District Judge: Hon. J. Curtis Joyner
_________
No. 03-4547
_________
JOSEPH W. FRIES,
Appellant
v.
METROPOLITAN MANAGEMENT CORPORATION
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-07196)
District Judge: Hon. J. Curtis Joyner
Argued: October 25, 2004
Before: SCIRICA, Chief Judge, FISHER and ALDISERT,
Circuit Judges,
(Filed: December 14, 2004)
Steven A. Cotlar (Argued)
Law Office of Steven A. Cotlar
23 West Court Street
Doylestown, PA 18901
Attorney for Appellants
2
Timothy A. Gallogly (Argued)
Sirlin, Gallogly & Lesser
1529 Walnut Street 6 th Floor
Philadelphia, PA 19102
Attorney for Appellee
OPINION OF THE COURT
ALDISERT, Circuit Judge.
Here we decide two separate, but related appeals from
orders of the district court granting summary judgment in
favor of Metropolitan Management (“Metropolitan”) in a
complaint by Julia Glanzman in Appeal No. 03-4546 under
the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621-634 (2000) and the Pennsylvania Human
Relations Act (“PHRA”), 43 P.S. §§ 951-963 (1991) and also
3
in a similar complaint brought by Joseph Fries in Appeal No.
03-4547.
Glanzman’s primary argument is that the district court
erred in determining that she had failed to present sufficient
direct evidence of age discrimination.
In reviewing the district court’s grant of summary
judgment we consider whether Glanzman: (1) presented direct
evidence of age discrimination against Metropolitan, thereby
triggering the test presented in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), (“Price Waterhouse test”), shifting to it
the burden of showing that they would have terminated her
employment even if they had not considered her age; (2)
presented sufficient evidence to negate Metropolitan’s
evidence in support of its contention that it would have fired
her, because of legitimate stated reasons, even if it had not
been for her age; and (3) was harmed by the allegedly
4
retaliatory conduct of Metropolitan.1
Fries argues that the district court erred in determining
that he failed to produce sufficient evidence that Metropolitan
retaliated against him because his name appeared on a witness
list in a proceeding initiated by Glanzman against
Metropolitan before the Equal Employment Opportunity
Commission (“EEOC”). He alleges that agreeing to testify
was a protected activity under the ADEA.
To establish a claim for retaliation, a plaintiff must
1
The standard of review applicable to an order granting
summary judgment is plenary. Carrasca v. Pomeroy, 313 F.3d
828, 832-833 (3d Cir. 2002). We must apply the same test
employed by the district court under Rule 56(c), Federal Rules
of Civil Procedure. Id. Accordingly, the district court’s grant of
summary judgment was proper only if it appears “that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Rule 56(c), Federal
Rules of Civil Procedure. The non-moving party is entitled to
every favorable inference that can be drawn from the record. Id.
5
show that: (1) he was engaged in protected activities; (2) the
employer took an adverse employment action after or
contemporaneous with the employee’s protected activity; and
(3) a causal link exists between the employee’s protected
activity and the employer’s adverse action. Farrell v. Planters
Lifesavers Company, 206 F.3d 271, 279 (3d Cir. 2000).
In appeal No. 03-4546, we conclude that the district
court erred in determining that Glanzman had failed to
produce direct evidence of age discrimination. We decide,
however, that Metropolitan met its burden of showing that it
would have terminated her employment even if it had not
considered her age and that Glanzman presented insufficient
evidence to negate Metropolitan’s evidence. We, therefore,
affirm the judgment.
In appeal No. 03-4547, we conclude that Fries has not
6
produced any evidence to overcome his own admission that
he was fired because he refused to write a letter of apology
for his wrong doing, one of Metropolitan’s proffered non-
discriminatory reasons, and not because of any protected
activity. We affirm this judgment as well.2
I.
Glanzman alleges that she was discharged because of
her age from her job as the manager of Doylestown M eadows,
a 150-unit apartment complex in Bucks County,
2
Subject matter jurisdiction over the two appeals under the
ADEA, 29 U.S.C. §§ 621-634, arises pursuant to 28 U.S.C. §
1331. We exercise pendent jurisdiction over Appellants’ claims
arising under the PHRA, 43 P.S. §§ 951-963, pursuant to 28
U.S.C. § 1367. As the district court points out “the same legal
standards and analysis are applicable to claims under both the
ADEA and the PHRA and hence it is not uncommon to address
such claims collectively. See, e.g., Bailey v. Storlazzi, 729 A.2d
1206 (Pa. Super. 1999).” (Op. of the dist. ct. at 7; App. at 8.) We
also will address these claims collectively. We have jurisdiction
over both appeals pursuant to 28 U.S.C. § 1291.
7
Pennsylvania. The complex is owned by Appellee
Metropolitan. She had managed the complex for the previous
owner and was then hired, at the age of sixty, to stay on as the
manager when Metropolitan acquired the complex in 1997.
She had a history of accepting, but not reporting,
personal collect telephone calls with charges totaling in
excess of $900.00. She said that the calls were from a sick
aunt, but in reality they were from her boyfriend who was
serving time in prison. She made arrangements to reimburse
Metropolitan for the expense of these calls and was allowed
to keep her job. She had also allowed her granddaughter to
access the internet from her office computer which resulted in
charges to Metropolitan. When confronted with this
wrongdoing, she apologized. She was again asked to
reimburse Metropolitan for the cost and allowed to keep her
job.
8
Testimony was presented that Glanzman was not
always where she was supposed to be during working hours
and that she often failed to respond in a timely manner when
paged. Metropolitan had reason to believe that Glanzman,
who owned rental property herself, used Metropolitan
employees, Joseph W. Fries and Phil Rittenhouse, to perform
work at her property during hours when they were being paid
by Metropolitan to work at Doylestown Meadows.
Metropolitan had reason to believe Glanzman was
attempting to steal a dishwasher to place in one of her
properties. She said that a tenant in Doylestown Meadows had
requested the dishwasher but the tenant stated that she did not
request it and did not want it because she only used her
existing dishwasher to store bread and cereal. When
confronted with this information, Glanzman changed her story
and said that the tenant’s daughter had requested the
9
dishwasher. This proved to be untrue as well.
On her part, Glanzman relies on three statements made
by her supervisors at Metropolitan. First, some ten months
before her termination, Glenn Fagan, vice president of
property management for Metropolitan, asked her if she had
told the son of one of the residents that she was 63 years old.
Second, soon after the conversation with Glenn Fagan, Trish
Kotsay, her immediate supervisor, asked if she was thinking
of retiring. Third, Glenn Fagan allegedly told two of
Glanzman’s co-workers, Joseph Fries and Phil Rittenhouse,
that he wanted to fire her and “replace her with a young
chippie with big tits.”
Glanzman ceased her employment during a
conversation between Glenn Fagan and her. Glenn Fagan
confronted her with the fact that the tenant in apartment 115
had not requested the dishwasher that had been ordered for
that apartment and that the tenant had specifically said she
10
had no need for the dishwasher. Glanzman said that the
woman’s daughter had ordered the dishwasher. Glenn Fagan
then suggested that they call the daughter. At this point,
Glanzman either voluntarily resigned or was fired. For
purposes of the present case, Metropolitan has agreed that she
was fired. Metropolitan contends that if Glanzman was fired
the decision could only have been made by Judy Goldstein,
president of Metropolitan, or Scott Fagan, vice president of
Metropolitan.
II.
Fries’ case arose on December 14, 2001 when he was
terminated from his employment as Maintenance
Superintendent at the same Doylestown Meadows apartment
complex where Glanzman served as the manager. He has
since been re-employed by Metropolitan. His claim is limited
to damages sustained between the time he was terminated and
when he was re-employed.
11
Metropolitan asserts that Fries was fired because he
performed work on another rental property, owned by
Glanzman, during company time using parts and materials
owned by Doylestown Meadows and then refused to submit a
written statement admitting to the act and apologizing.
Fries does not dispute that he and a co-worker, Phil
Rittenhouse, worked on Glanzman’s own rental property on
company time, that he used company materials and that he
refused to write a letter of apology. He instead contends that
his actions were not wrongful because he was using comp
time to work on Glanzman’s property.
His version was at variance with that of Rittenhouse,
who signed a letter to Metropolitan admitting that he had
worked on Glanzman’s property with Fries on company time
and apologized for his conduct. Rittenhouse was not
terminated.
Fries contends that his refusal to write the apology
12
letter was not wrongful because Metropolitan was asking him
to write things that were not true; specifically, it was not true
that he worked for Glanzman on company time or that
Glanzman had asked him to install one of Metropolitan’s
dishwashers on her own property.
Fries says also that the real reason he was fired on
December 14 is that on December 10 Metropolitan received a
copy of Glanzman’s EEOC charge identifying him as a
potential witness in that proceeding. Fries had earlier heard
Glenn Fagan, M etropolitan’s vice president of property
management, say to him and Rittenhouse that he wanted to
replace Glanzman with “a young chippie with big tits.” He
had then reported that statement to Glanzman, who was
subsequently fired and claimed discrimination.
Metropolitan responds that it started advertising Fries’
position soon after his refusal to write the letter of apology
and they kept him on because they initially had trouble
13
finding someone else to fill the position. According to
Metropolitan the timing of Fries’ termination had nothing to
do with learning that he was listed as a possible witness in the
EEOC proceeding, it was only because they had finally found
someone to replace him.
III.
We will first address Fries’ appeal in which he
contends that the real reason he was fired was because he was
listed as a potential witness in an EEOC procedure instituted
by Glanzman against his employer.
Unfortunately, the words of Fries under oath at a
deposition cut the props out from under his argument. Fries
admitted that the reason he was fired was that he refused to
write the letter of apology requested by Metropolitan.
Fries testified:
A. I know why I got fired.
Q. You know why?
14
A. He [Phil Rittenhouse] signed an apology letter and
I didn’t.
Q. Then you understood that the reason he [Phil
Rittenhouse] stayed on was because he signed a letter
saying that he did it [worked on the Glanzman
property] and he apologized, correct?
A. Yes.
Q. And you said I’m not going to write any letter
saying anything?
A. Correct.
Q. And you were told by Ms. Kotsay [one of the
supervisors] I believe that if you weren’t going to fess
up, acknowledge that what you did was wrong, that
you would be fired?
A. Correct.
Q. And notwithstanding her telling you that you didn’t
provide any letter or statement or anything like
Rittenhouse acknowledging that you were working on
Ms. Glanzman’s property right?
A. Right.
Q. And as a result you were fired, correct?
A. Correct.
15
(App. at 59.)
Although Fries has presented a number of other
arguments in support of his appeal, in the view we take it is
not necessary that we meet them. His own words under oath
completely preclude him from establishing the third of the
three prongs necessary to prevail in a retaliation case. To
establish a claim for retaliation, Fries must show that being
engaged in protected activities caused him to be fired. He has
not shown this.
The Age Discrimination statute provides:
It shall be unlawful for an employer to discriminate against his employees .
. . because such individual . . . has made a charge, testified, assisted or
participated in any manner in an investigation, proceeding, or litigation
under this chapter.
29 U.S.C. § 623(d) (2000).
Fries was not fired for being a possible witness in
Glanzman’s EEOC case. He admits that he was fired for
refusing to apologize for the work he did on Glanzman’s
16
private property while he was being paid by Metropolitan.
Although Fries raised other arguments, because we
hold that his being engaged in a protected activity did not
cause his termination, it is unnecessary to discuss whether he
was engaged in protected activity and whether the
Metropolitan took an adverse employment action after or
contemporaneous with the this protected activity. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000).
Accordingly, we will affirm the district court’s judgment in
Fries’ Appeal No. 03-4547. We now turn to Glanzman’s
appeal.
IV.
“To prevail on an age-based termination claim, a
plaintiff must show that his or her age ‘actually motivated’
and ‘had a determinative influence on’ the employer’s
decision to fire him or her.” (Op. of the dist. ct. at 7; App. at 8
(citing Reeves v. Sanderson Plumbing Products, 530 U.S.
17
133, 141 (2000).) This showing that age motivated or had a
determinative influence on the decision of the employer can
be made either through the use of direct evidence or
circumstantial evidence. If direct evidence is used, the
proponent of the evidence must satisfy the test laid out in
Price Waterhouse, in order to prove a violation of the ADEA.3
See Fakete v. Aetna, 308 F.3d 335 (3d. Cir. 2002) (applying
the Price Waterhouse test to an ADEA case where direct
evidence of discrimination was presented). If circumstantial
evidence of age discrimination is used, then the proponent of
the evidence must satisfy the three-step test of McDonnell
3
Congress overruled this test as applied in the Civil Rights Act
of 1991, 42 U.S.C. §§ 2000e-2, 2000e-5 (f). In that law
Congress specified that unless otherwise provided “an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin
was a motivating factor for any employment practice, even
though other factors also motivated the practice.” Id. § 2000e-2.
Because the Civil Rights Act of 1991 does not apply to ADEA
cases and because recently in Fakete, we used the Price
Waterhouse test to decide an ADEA case we continue to apply
the Price Waterhouse test in order to resolve ADEA cases.
18
Douglas Corp. v. Green, 411 U.S. 792 (1973).
In this case, Glanzman relies solely on direct evidence
of age discrimination, and urges this court to use the Price
Waterhouse framework.4 We will do so. Under Price
Waterhouse, once direct evidence of age discrimination is
presented the “burden of persuasion on the issue of causation
shifts, and the employer must prove that it would have fired
the plaintiff even if it had not considered . . . [her] age.”
Fakete, 308 F.3d at 338 (citing Price Waterhouse, 490 U.S. at
265-266, 276-277)
A.
To be “direct” for purposes of the Price Waterhouse
test, evidence must be sufficient to allow the jury to find that
4
If it were necessary to engage in a McDonnell Douglas analysis
we would agree with the district court that Metropolitan has
provided legitimate non-discriminatory reasons for the
termination of Ms. Glanzman’s employment and that Glanzman
has not succeeded in providing evidence that the proffered
reasons are a mere pretext. (Op. of the dist. ct. at 14-15; App. at
15-16.)
19
the decision makers placed a substantial negative reliance on
the plaintiff’s age in reaching their decision. Fakete, 308 F.3d
at 338. This means that Glanzman must produce evidence of
discriminatory attitudes about age that were causally related to
the decision to fire her.
Metropolitan points out that “[n]ot all evidence that is
probative of illegitimate motives . . . is sufficient to constitute
direct evidence of discrimination.” (Appellee br. at 10.)
Specifically, Metropolitan mentions “stray remarks in the
workplace” and “statements by non-decision makers” as the
type of evidence that would not rise to the level of “direct” for
purposes of the Price Waterhouse test. (Id.)
Glanzman points to three pieces of “direct” evidence
of discrimination on the part of her superiors at Metropolitan.
First, ten months before her termination, Glenn Fagan asked
her if she had told the son of one of the residents that she was
sixty-three years old. The district court correctly concluded
20
that there was nothing discriminatory in this inquiry and it
certainly does not provide direct evidence of age
discrimination. (Op. of the dist. ct. at 11; App. at 12.) Second,
shortly after this question from Glenn Fagan, Ms. Kotsay,
Glanzman’s immediate supervisor, asked Glanzman about her
retirement plans. Again the district court correctly determined
that this was not direct evidence of age discrimination and
could just as easily be explained by a desire on Metropolitan’s
part to do some long-term planning. (Id.)
The third piece of evidence proffered by Glanzman
merits a more in depth consideration. Glanzman alleges that
Glenn Fagan told two of her co-workers, Joseph Fries and
Phil Rittenhouse, that he wanted to fire her and replace her
with an exceptionally endowed younger woman. The district
court determined that this remark was not direct evidence of
discrimination because, though it was offensive, it does not
show that “the reason for Ms. Glanzman’s termination was to
21
replace her with a ‘young chippie with big tits.’” (Op. of the
dist. ct. at 11, App. at 12.) Metropolitan adds to this
explanation by contending that this statement cannot be direct
evidence because “the comment was not made by Judy
Goldstein or Scott Fagan, the individuals who made the
decision to discharge her.” (Appellee br. at 12.)
Price Waterhouse explicitly states that statements made
by non-decision makers or by a decision maker unrelated to
the decisional process itself are not direct evidence. 490 U.S.
at 277. The statement of Glenn Fagan that he wanted to
replace Ms. Glanzman with a younger woman does not fit
easily into either of these non-direct evidence categories.
Glenn Fagan is the vice president of property management for
Metropolitan and was, in that capacity, Ms. Glanzman’s boss.
It is undisputed that Glenn Fagan frequently paged Ms.
Glanzman and checked in on the property about once a
month. Ms. Glanzman’s employment was terminated during a
22
conversation with Glenn Fagan. In its brief, Metropolitan
alleges that Judy Goldstein and Scott Fagan, who are
president and vice president of the company, respectively,
made the decision to fire her. (Appellee br. at 11-12.) The
Appellee does not support this claim with evidence in the
record, and even if the claim is true, Judy Goldstein and Scott
Fagan must have relied heavily on Glenn Fagan in making the
decision because he was the company officer in direct contact
with Ms. Glanzman.
Further, Price Waterhouse itself and Fakete, our
decision applying the Price Waterhouse test in the context of
an ADEA claim, speak alternatively of the decision maker
and person involved in the decision-making process. See
Fakete, 335 F.3d at 339. If Glenn Fagan was not the decision
maker in the decision to terminate Glanzman’s employment
he was almost certainly involved in the decision-making
process. Metropolitan admitted for purposes of its motion for
23
summary judgment that Glenn Fagan recommended
Glanzman’s termination.5 Also, in his statement, Glenn Fagan
explains that his usual practice is to make hiring and firing
recommendations to Scott Fagan and Ms. Goldstein, who then
make the final decisions. (App. at 221.) On the basis of the
evidence in the record, therefore, a rational jury could easily
find that Glenn Fagan was a decision maker, or at least a
participant in the employment decision in this case.
B.
We are troubled by the district court’s determination
that Glenn Fagan’s remark “does not in and of itself reflect
that the reason for Ms. Glanzman’s termination was to replace
her with a” younger woman. (Op. of the dist. ct. at 11; App. at
5
This is based on Glanzman’s contention that “Glenn Fagan
recommended Glanzman’s termination” for which they cite page
26 of Metropolitan’s brief in support of the motion for summary
judgment which was not included in the appendix. We have
examined the brief. Metropolitan did in fact admit that Glenn
Fagan recommended Glanzman’s termination to Scott Fagan.
24
12.) To be sure, Glenn Fagan’s statement does not support a
compellable inference that ageism was the cause of the
decision to terminate Ms. Glanzman’s employment. Such a
statement, however, is fraught with permissible inferences
that he desired to fire Ms. Glanzman at least in part because
of her age. One could reasonably determine that Glenn
Fagan’s statement that he would replace Ms. Glanzman with a
younger woman is, in effect, an admission that at least part of
the actual reason for the employment decision was a desire to
hire someone younger and more endowed. See Oglesby v.
Coca-Cola Bottling Co., 620 F. Supp. 1336, 1346 (D.C. Ill.,
1985) (“[d]irect evidence, such as an employers statement
about wanting to get rid of older employees and replace them
with younger ones, will of course suffice.”) A rational jury
could find that Metropolitan placed a substantial negative
reliance on Glanzman’s age in making the decision to
terminate her employment. Accordingly, we conclude that
25
Glanzman met her burden and presented direct evidence.
VI.
Because Glanzman has succeeded in presenting the
necessary quantum of direct evidence of discrimination, the
burden of going forward with the evidence shifts to
Metropolitan to “prove that it would have fired . . .
[Glanzman] even if it had not considered . . . [her] age.”
Fakete, 335 F.3d at 338 (citing Price Waterhouse, 490 U.S. at
265-266, 276-277). This is a high burden on a motion for
summary judgment because Metropolitan must leave no doubt
that a rational jury would find that Metropolitan would have
fired Ms. Glanzman even if it had not been for the
discriminatory statement.
The district court concluded that Metropolitan met
even this high evidentiary standard. The opinion of the district
court states that “evidence of record clearly demonstrates that
the defendant-employer has shown that it would have fired
26
the plaintiff even if it had not considered her age.” (Op. of the
dist. ct. at 12; App. at 13.) The district court then went on to
lay out myriad non-age-related reasons for which any rational
employer would have fired Ms. Glanzman.
[I]t is clear from the unrebutted deposition testimony and the
declarations of all the witnesses, including the plaintiff
herself, that she was not always where she was supposed to be
during working hours, she frequently did not respond timely
when paged, she had two of the maintenance workers from
Doylestown Meadows perform work on apartments which she
herself owned and which were not part of the Doylestown
Meadows complex, she ordered a dishwasher for a
Doylestown Meadows apartment which the tenant neither
requested, needed or wanted. When Ms. Kotsay inquired into
whether the dishwasher was to replace an existing one or
whether it was part of an apartment renovation so she could
determine how to record it, Ms. Glanzman lied by admittedly
stating first that it was to replace a broken one and that the
tenant herself had requested it but then later claiming that the
tenant’s daughter had requested it. When the company
investigated the matter, it learned that the existing dishwasher
in the apartment at issue was not broken, neither the tenant
nor her daughter had requested a new one and in fact the
tenant did not want one since she only used her dishwasher to
store bread. The evidence of record further strongly suggests
that the plaintiff intended to have that dishwasher installed in
one of her own apartment units. In addition, the plaintiff had
in the past accepted almost $1000 worth of collect calls from
a friend on her office telephone and permitted her
27
granddaughter to use the internet on her office computer.
Although Glenn Fagan recommended that Ms. Glanzman be
terminated for these infractions, which occurred
approximately one to one and-a-half years before this cause of
action arose, the defendant company gave her a second
chance but required her to make restitution in exchange for
keeping her job. Therefore, again giving the plaintiff the
benefit of all possible doubt that her age was a determinative
factor in her termination, the defendant has adduced more
than sufficient evidence that it would have terminated her
regardless of age on the basis of her past infractions, her
misconduct in directing maintenance men, leaving the
premises without authorization during work hours, failing to
timely respond to pages and on the company’s suspicion that
she was trying to steal a new dishwasher.
(Op. of the dist. ct. at 12-14; App. at 13-15.)
We conclude that the district court’s assessment of the
facts is accurate. Glanzman had already been warned about
serious violations of Metropolitan’s policies, she was then
caught committing even more serious violations, and lying to
cover up what Metropolitan reasonably determined to be a
plan to steal a dishwasher for use on a property she owned.
Glanzman does not even try to rebut most of the district
court’s analysis in her brief. Where she does attempt a
28
rebuttal, she simply ignores the overwhelming weight of
evidence against her. (See Appellant’s br. at 12-14.)
Metropolitan does not have to prove that Glanzman
committed these infractions, but only that it was reasonable in
its belief that she had committed them. Even if she committed
only a few of them, Metropolitan would have had a surfeit of
legitimate reasons to fire her. We thus conclude that no
rational jury could doubt that Metropolitan would have fired
Glanzman even if it had not considered her age. We affirm on
the ADEA claim because we conclude that Metropolitan has
succeeded in meeting its burden under the Price Waterhouse
test.
VII.
Glanzman makes a separate, but related argument. She
contends that Metropolitan retaliated against her because she
had filed a claim for unemployment compensation benefits in
which she cited discrimination as the cause of her termination.
29
To establish a claim for retaliation, a plaintiff must show that:
(1) she was engaged in protected activities; (2) the employer
took an adverse employment action after or contemporaneous
with the employee’s protected activity; and (3) a causal link
exists between the employee’s protected activity and the
employer’s adverse action. Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 279 (3d Cir. 2000).
The alleged retaliation came in the form of
Metropolitan’s notification that Glanzman would have to
vacate her rent-free-apartment, which she had the use of as a
benefit of her employment, as of November 30, 2001 and
Metropolitan’s contesting her right to unemployment
compensation benefits. Assuming that Glanzman’s filing of
her claim for unemployment based on discrimination was a
protected activity, her retaliation claims fail for two reasons.
First, Glanzman could not suffer adverse employment
action after or contemporaneous with the protected activity.
30
Quite obviously, given the nature of unemployment benefits,
her employment was terminated before, not after or
contemporaneous with, her filing for unemployment
compensation. Once her employment was terminated it was
not possible for her to suffer adverse employment action.
Second, she suffered no harm from these allegedly
retaliatory actions of Metropolitan. She continued,
notwithstanding the notice to quit, to live in her apartment,
rent free, until January 4, 2002. She was also successful in her
claim for unemployment benefits in face of M etropolitan’s
opposition. Because Glanzman did not suffer economic harm
as a result of Metropolitan’s actions her claim would be
denied even if the actions had been retaliatory.
*****
In sum, evidence that Glenn Fagan told two of
Glanzman’s co-workers that he would like to replace her with
a younger woman was direct evidence, and triggers the Price
31
Waterhouse test. The statement can reasonably be read as, in
effect, an admission that part of the reason Glenn Fagan
wanted to fire Glanzman was to replace her with a younger
person. If Glenn Fagan was not the one who made the
decision to terminate Glanzman’s employment, he was, at
least, very involved in the decision making process. We
therefore conclude that the remark is direct evidence of age
discrimination which triggers the Price Waterhouse test.
Metropolitan, however has succeeded in presenting
overwhelming evidence of Glanzman’s misconduct, and
based on this uncontradicted evidence, a reasonable jury could
only conclude that Metropolitan would have fired Glanzman
even if they had not considered her age.
Glanzman’s retaliation argument fails because she was
not employed by Metropolitan at the time of the alleged
retaliation and she suffered no legal injury because of the
alleged retaliation.
32
Because Metropolitan has very substantially carried its
burden under the Price Waterhouse test and Glanzman has not
succeeded in establishing a factual basis for her retaliation
claim, we will also affirm the judgment of the district court in
Appeal No. 03-4546.
Accordingly, the judgments of the district court at No.
03-4546 and 03-4547 will be affirmed.
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