Fasold v. Justice

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

6-1-2005

Fasold v. Justice
Precedential or Non-Precedential: Precedential

Docket No. 04-2363

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 04-2363

ROBERT FASOLD,
Appellant

v.

EDMUND JUSTICE, County Chief of Detectives;
OSCAR VANCE, County Chief of Detectives;
OFFICE OF DISTRICT ATTORNEY
OF MONTGOMERY COUNTY;
FRANK BASON, Lieutenant County Detectives;
COUNTY OF MONTGOMERY

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 02-cv-09187)
District Judge: Hon. Thomas N. O’Neill, Jr.

Argued February 15, 2005

Before: SLOVITER, AMBRO, and ALDISERT, Circuit Judges

(Filed June 1, 2005)

Walter M. Phillips, Jr. (Argued)
Kevin J. Kotch
Hoyle, Fickler, Herschel & Mathes LLP
Philadelphia, PA 19107

Attorneys for Appellant
Charles W. Craven (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
Philadelphia, PA 19103-4717

Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Robert Fasold, a former detective in the office of the
District Attorney in Montgomery County, Pennsylvania, appeals
the order of the District Court entering summary judgment
against him and dismissing his complaint alleging that his
termination violated the state and federal age discrimination acts.
He sued his former supervisors and employer: Deputy Chief
Detective Edmund Justice, Chief Detective Oscar Vance,
Lieutenant Detective Frank Bason, District Attorney Bruce
Castor, the Office of the District Attorney for Montgomery
County, and Montgomery County, Pennsylvania (hereinafter
collectively “Defendants”).

The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1367; this court has jurisdiction under 28 U.S.C. §
1291. For the reasons set forth below, we will reverse.

I.

In reviewing the grant of summary judgment, we must
view “the underlying facts and all reasonable inferences
therefrom in the light most favorable to the party opposing the
motion,” here Fasold. Pa. Coal Ass’n v. Babbitt, 63 F.3d 231,
236 (3d Cir. 1995); see also In re Flat Glass Antitrust Litig., 385
F.3d 350, 357 (3d Cir. 2004).

Fasold was thirty-three 1 years old in 1986 when he began

1
In its memorandum opinion, the District Court erroneously
stated that Fasold was born September 24, 1962, when he was in

2
his work as a detective at the Montgomery County District
Attorney’s Office.2 During his first two years with the District
Attorney’s Office he worked in the Major Crimes Unit; in 1988
he went to the Narcotics Unit where his primary duty was the
care, performance, and handling of a drug-sniffing canine. In
1992, he was transferred back to the Major Crimes Unit where
he spent the next eight years. His primary responsibility was the
investigation of white collar crime.

In November 2000, Fasold was told that effective January
2, 2001, he was being transferred back to the Narcotics Unit.
Fasold was uncomfortable with the proposed move because of
his lack of experience in Narcotics (the drug dog aside) and his
positive work experiences and evaluations in Major Crimes.
Also, Fasold remembered that the detectives in Narcotics were
expected to work with informants and to make undercover buys–
tasks for which Fasold felt ill-suited. Fasold, who had spoken
with Vance in October 2000 about coming to work early and
leaving early so that he could care for his children, was also
concerned about the transfer because of the irregular working
hours and overtime for detectives in the Narcotics Unit.

After Fasold learned of the impending reassignment, he
raised his concerns with both Justice and Vance. He also voiced
his concerns to Bason, a supervisor in the Narcotics Unit.
According to Fasold, during the latter conversation Bason stated:
“[C]an’t you see the handwriting on the wall? . . . [T]hey don’t
want you here anymore.” App. at 85. Bason does not deny that
he used the expression the “handwriting on the wall,” but recalls
that he used it at a later time, indicating that it was in reference
to Fasold’s poor performance at work. App. at 589-90. In any
event, despite his protestations, Fasold’s reassignment to the
Narcotics Unit occurred as planned. Fasold avers that, although
he obviously was not pleased with the transfer, he tried to

fact born September 24, 1952.
2
Prior to taking the job with the Montgomery County
District Attorney’s Office, Fasold held various law-enforcement
positions with Springfield Township, Pennsylvania.

3
“mak[e] the best of it.” App. at 85.

In May 2001, Bason approached Fasold complaining that
Fasold’s record since he rejoined the Narcotics Unit contained
an insufficient number of investigations and arrests. Fasold
responded that he believed his job was primarily that of a
supervisor and that he was unaware that generating
investigations and arrests were major parts of his responsibility.
He further questioned Bason about why he had waited until May
to approach him about this issue. Fasold maintains that Bason
did not have a specific response to this query, but told him that
he wanted him to work more overtime hours and noted several
instances when Fasold was unavailable for overtime.3

During his deposition, Fasold recounted that Detective
Anthony Spagnoletti, who occupied an office near to Fasold’s,
overheard the May 2001 conversation between Bason and
Fasold. Spagnoletti then told Fasold: “[I]sn’t it obvious to you
that the people at the top do not want you here[?] . . . Bason is
their hatchet man, and, you know, they gave you to him, and they
just want you out of here.” App. at 106-07.

Nonetheless, after his May 2001 meeting with Bason,
Fasold worked with several prosecutors and police officers in an
effort to generate investigations, cases, and arrests. Indeed, at
his later deposition, Bason admitted that he noticed a “marked
improvement” in Fasold’s work performance after their May
2001 meeting. App. at 606. Bason also testified that he could
not recall any instances where Fasold had refused any request to
work overtime after the May 2001 meeting.

On December 14, 2001, Fasold was assigned to assist
state and local authorities with the controlled delivery of a large
box of marijuana that was being transported by law-enforcement

3
During his deposition, Bason admitted that, although he
had documented the instances when Fasold had been unwilling to
work overtime, he had never previously documented any other
detective’s refusal to work extra hours.

4
authorities to a warehouse in Cheltenham Township,
Pennsylvania where it was to be picked-up by a suspected
narcotics dealer. Fasold testified at his deposition that while he
was en route to the warehouse in Cheltenham he informed Bason
by telephone that he might need to leave the scene early in order
to tend to a family situation.

That afternoon, the delivery, pick-up, and arrest occurred
as planned. Fasold maintains that sometime after the suspect
had been arrested he called Bason to inform him of the events
and to tell him that he was leaving. Fasold testified that Bason
did not ask him for any details of the arrest, question him in
regard to his leaving early, or otherwise complain about Fasold’s
decision to leave.4 Bason, on the other hand, remembers
Fasold’s phone call but testified that he did in fact question
Fasold about the arrest and took issue with his decision to leave
the scene. Specifically, because Fasold was unable to tell him
what type of firearm the suspect had possessed and what was
contained in the packages found in the suspect’s car, Bason
concluded that Fasold had left the site while the investigation
was still in its incipient stages. Moreover, Bason explained that
the arrest was supposed to be a “learning experience” for the
Cheltenham police as they had not previously participated in
controlled package deliveries, and Fasold was supposed to lead
them through the process. App. at 618. Bason testified that he
doubted Fasold’s thoroughness because after the suspect was
arraigned and released, he was able to empty three safe deposit
boxes that might have been located and seized by the officers if
an extensive inventory had been conducted at the time of the
arrest.

4
Fasold also testified to his belief that the situation was
under control because also present at the arrest scene were
detectives from the Philadelphia Police Department, several
officers from the Pennsylvania State Police, as well several local
officers from Cheltenham. Furthermore, Fasold made himself
available to these officers by cell phone; indeed, he did receive
several phone calls from these officials regarding procedure.

5
 On December 28, 2001, Bason summoned Fasold to his
office and provided him with his annual performance review.
According to Fasold, this was the first negative annual
performance evaluation he had received in his fifteen-plus years
with the District Attorney’s Office. Fasold also contends that
during the meeting Bason informed him for the first time of his
belief that he had left the December 14, 2001 Cheltenham arrest
too early and without his knowledge or consent.

On January 3, 2002, Fasold was called to a meeting with
Vance, Justice, and Bason. At that meeting, he was asked to
resign voluntarily. The supervisors cited Fasold’s unsatisfactory
arrest record in the Narcotics Unit, his refusal to work overtime,
and his early departure from the December 14, 2001 Cheltenham
arrest as grounds for the proposed resignation. Fasold refused to
resign; consequently, his supervisors suspended him with pay
until further notice.

Several days later, on January 7, 2002, District Attorney
Castor terminated Fasold’s employment. Less than a week
thereafter, the District Attorney filled the vacancy with Detective
Christopher Kuklentz, who was then thirty-three years old.

Following his termination, Fasold followed the
Montgomery County Grievance Procedure and submitted a
Grievance Form. This led to a Level I hearing on April 17,
2002; at the end of this hearing Fasold’s grievance was denied.
Thereafter, Fasold filed age-discrimination claims with the
Federal Equal Employment Opportunity Commission (“EEOC”)
and the Pennsylvania Human Relations Commission (“PHRC”).

On August 20, 2002, Castor, pursuant to the Grievance
Procedure, held a Level II hearing and met with, inter alia,
Fasold, Vance, and Justice for the purpose of reconsidering the
issue of Fasold’s termination. By way of a letter dated
September 11, 2002, Castor denied Fasold’s grievance and
upheld the termination. Notably, Castor’s September 11 letter
specifically mentioned the pending administrative proceedings
charging age discrimination and called those allegations

6
“preposterous.” App. at 530.5

After receiving a right-to-sue letter from the EEOC,
Fasold instituted this lawsuit. His complaint contains allegations
under both the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., and the Pennsylvania
Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 951 et seq.
The complaint asserts that Defendants discriminated against him
on account of his age. It further avers that, in denying his
grievance after his filing of an administrative action, Castor had
engaged in unlawful retaliation.

After discovery was completed, the District Court granted
Defendants’ motion for summary judgment. The District Court
applied the framework established by the United States Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and found that Fasold had raised a prima facie case of
age discrimination. The Court held, however, that Fasold had
failed to present sufficient evidence to show that the Defendants’
proffered legitimate, nondiscriminatory reasons for the firing
were pretextual. As to the retaliation claims, the District Court
ruled that Fasold had failed to establish a prima facie case of
retaliation; specifically, the District Court found that Fasold had
failed to establish a “causal link” between his institution of
agency proceedings and the denial of his grievance. App. at 8.
This timely appeal followed.

II.

We review the District Court’s grant of summary
judgment de novo, applying the same standard as did the District
Court. Union Pac. R.R. Co. v. Greentree Transp. Trucking Co.,

5
Castor later testified respecting Fasold’s age-
discrimination claim: “I was irritated that such an allegation would
be made when I knew as a fact that it was totally ridiculous, and I
think that anyone who would make such an allegation, especially
one under oath, is a person whose credibility is dramatically
compromised.” App. at 578.

7
293 F.3d 120, 125 (3d Cir. 2002). Summary judgment is
appropriate where there are no genuine issues as to any material
fact and the moving party is entitled to judgment as a matter of
law. See Fed. R. Civ. P. 56. Summary judgment, however, must
not be granted where there is a genuine dispute about a material
fact, “that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III.

To prevail on an intentional age discrimination claim
under either the ADEA 6 or the “analogous provision” of the
PHRA,7 Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142
F.3d 639, 644 n.5 (3d Cir. 1998), a plaintiff must show that his
or her age “‘actually motivated’” or “‘had a determinative
influence on’” the employer’s adverse employment decision.

6
The ADEA states, inter alia, that it is unlawful for an
employer “to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s age. . . .” 29 U.S.C. § 623(a)(1).
7
In pertinent part, the PHRA states:

It shall be an unlawful discriminatory practice . . .
[f]or any employer because of the . . . age . . . of any
individual . . . to refuse to hire or employ or contract
with, or to bar or to discharge from employment such
individual . . . or to otherwise discriminate against
such individual . . . with respect to compensation,
hire, tenure, terms, conditions or privileges of
employment or contract, if the individual . . . is the
best able and most competent to perform the services
required.

43 Pa. Cons. Stat. § 955(a).

8
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141
(2000) (quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 610
(1993)).8 A plaintiff can meet this burden (1) by presenting
direct evidence of discrimination, see Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989), or (2) by presenting indirect
evidence of discrimination that satisfies the familiar three-step
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See generally Fakete v. Aetna, Inc., 308 F.3d 335, 337-
38 (3d Cir. 2002); Keller v. Orix Credit Alliance, Inc., 130 F.3d
1101 (3d Cir. 1997) (en banc). As mentioned above, Fasold’s
age discrimination claims proceeded under the McDonnell
Douglas framework.9

Under the McDonnell Douglas paradigm, an employee
must first establish a prima facie case of discrimination, after
which the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its adverse employment decision.
See Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 n.11 (3d
Cir. 2004); Shellenberger v. Summit Bancorp, Inc., 318 F.3d
183, 187 (3d Cir. 2003). If the employer articulates one or more
such reasons, the aggrieved employee must then proffer evidence
that is sufficient to allow a reasonable finder of fact to find by a
preponderance of the evidence that the employer’s proffered

8
This court has stated “that the PHRA is to be interpreted
as identical to federal anti-discrimination laws except where there
is something specifically different in its language requiring that it
be treated differently.” Fogleman v. Mercy Hosp., Inc., 283 F.3d
561, 567 (3d Cir. 2002) (citing Dici v. Pennsylvania, 91 F.3d 542,
552 (3d Cir. 1996)). The PHRA provisions here at issue contain no
such language; therefore, we will interpret the implicated
provisions of the ADEA and PHRA as applying identically in this
case and as being governed by the same set of decisional law.
Fogleman, 283 F.3d at 567.
9
Recently, the Supreme Court held that disparate impact
liability is cognizable under the ADEA. Smith v. City of Jackson,
__ U.S. __, 125 S. Ct. 1536 (2005). Such a theory, however, is not
at issue in this case; rather, Fasold alleges that Defendants engaged
in intentional discrimination.

9
reasons are false or pretextual. Sarullo v. United States Postal
Serv., 352 F.3d 789, 797 (3d Cir. 2003) (per curiam). It is
important to note that although “the burden of production may
shift” during the McDonnell Douglas inquiry, the “‘ultimate
burden of persuading the trier of fact that the [employer]
intentionally discriminated against the [employee] remains at all
times with the [employee].’” Williams v. Phila. Hous. Auth.
Police Dep’t, 380 F.3d 751, 759 n.3 (3d Cir. 2004) (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

The District Court held, and Defendants do not dispute,
that Fasold established a prima facie case of age discrimination.
He presented evidence that he (1) was over forty years old at the
time of the adverse employment decision; (2) is qualified for the
position in question; (3) suffered from an adverse employment
decision; and (4) that his employer replaced him with someone
sufficiently younger to permit a reasonable inference of age
discrimination. See generally Potence v. Hazleton Area Sch.
Dist., 357 F.3d 366, 370 (3d Cir. 2004); Anderson v. Consol.
Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002).10

In turn, Defendants proffered evidence to support several
facially legitimate, nondiscriminatory reasons for the firing.
Specifically, Defendants maintained that Fasold had generated
insufficient cases and arrests; was unwilling to work necessary
overtime hours; had abandoned the December 14, 2001
Cheltenham arrest and had otherwise abdicated and shirked his
duties with respect to that event; and, on at least two occasions,
had failed to submit proper leave forms.

10
There is no hard-and-fast rule covering what a plaintiff
must show in order to establish the McDonnell Douglas prima facie
showing. Rather, “the precise elements of a plaintiff’s prima facie
case may vary with the particular circumstances.” Waldron v. SL
Indus., Inc., 56 F.3d 491, 494 n.3 (3d Cir.1995); see also Geraci v.
Moody-Tottrup Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996) (“The
elements of th[e] prima facie case . . . must not be applied
woodenly, but must rather be tailored flexibly to fit the
circumstances of each type of illegal discrimination.”).

10
 Therefore, this case, like many ADEA actions, turns on
the final step of the McDonnell Douglas framework: whether
Fasold presented evidence sufficient to allow a reasonable finder
of fact to find by a preponderance of the evidence that
Defendants’ proffered reasons are pretextual.

In Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), this
court, in addressing the McDonnell Douglas requirements,
stated:

[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.

32 F.3d at 764.11 In other words, if the aggrieved employee can
raise evidence sufficient “to discredit the [employer’s] proffered
reasons . . . the [employee] need not also come forward with
additional evidence of discrimination beyond his . . . prima facie
case” in order to survive summary judgment. Id.; see also
Reeves, 530 U.S. at 148 (“[A] plaintiff’s prima facie case,
combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to
conclude that the employer unlawfully discriminated.”);
Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061,
1067 (3d Cir. 1996) (en banc) (“[A] plaintiff may survive
summary judgment . . . if the plaintiff produced sufficient
evidence to raise a genuine issue of fact as to whether the

11
However, the Fuentes court further noted that in order
“[t]o discredit the employer’s proffered reason . . . the plaintiff
cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent.” 32 F.3d at 765.

11
employer’s proffered reasons were not its true reasons for the
challenged employment action.”). After reviewing the record,
we conclude that Fasold has presented evidence from which a
reasonable factfinder could choose to disbelieve Defendants’
proffered legitimate, nondiscriminatory reasons.

First, although Defendants contend that they fired Fasold
at least in part because he had generated insufficient numbers of
arrests and investigations since rejoining the Narcotics Unit,
Bason–Fasold’s supervisor in the Narcotics Unit–testified that
Fasold’s performance after their May 2001 meeting was
“making [him] happy.” App. at 628. He further testified that
although Fasold’s performance after the May 2001 meeting was
“still lagging” somewhat behind other detectives, he was more-
or-less satisfied with Fasold’s ability to generate cases and
arrests. App. at 629. In fact, he noted a “marked improvement”
in Fasold’s performance after the May meeting. App. at 606.
The evidence that Fasold’s direct supervisor was basically
satisfied with the number of arrests and investigations generated
by Fasold tends to undermine the validity of Defendants’
contention that they fired Fasold because he generated
insufficient arrests and investigations. A reasonable factfinder
could conclude that Defendants’ assertion that they fired Fasold
because of his insufficient levels of arrests and investigations is
an averment “unworthy of credence.” Fuentes, 32 F.3d at 765.

A similar outcome obtains with respect to their assertion
that they fired Fasold because he was unwilling to work
overtime. During his deposition, Bason conceded that detectives
in his Unit routinely declined overtime shifts; he further
conceded that, apart from Fasold, his office had never
documented such refusals let alone reprimanded detectives for
refusing overtime. More important, Bason testified that he could
not recall any occasion after his May 2001 meeting with Fasold
where Fasold had refused to work overtime. The fact that Bason
(or for that matter any other of the Defendants) could not recall
any instances wherein Fasold refused overtime after May 2001 is
particularly telling considering that Fasold was not fired until
January 2002. Thus, a reasonable factfinder could choose to
discredit the Defendants’ assertion that they fired Fasold, at least

12
in part, due to his refusal to work overtime.

Although Defendants argue that they terminated Fasold
due in large part to his behavior during the December 14, 2001,
Cheltenham controlled narcotics delivery and arrest, the
circumstances surrounding that occurrence are rife with disputed
issues of material fact. Specifically, material disputes of fact
exist respecting whether Fasold had received Bason’s pre-event
approval to leave the scene early, the content of the later
conversation wherein Fasold informed Bason that he was leaving
the scene early, and whether Bason objected when Fasold told
him that he was leaving the scene early. If these disputes of fact
are resolved in Fasold’s favor (a permissible outcome on the
state of the record), a reasonable factfinder could conclude that
Defendants’ assertion that they fired Fasold because of his
December 14, 2001 actions at Cheltenham is merely a post hoc
fabrication created to provide cover for an unlawful firing.

Finally, we conclude that Fasold raised sufficient
evidence to refute Defendants’ assertion that his firing was based
in part on his failure to submit proper leave forms. Specifically,
Fasold has presented evidence tending to show that, in the past,
when detectives with the District Attorney’s Office neglected to
submit the proper leave forms, their superiors did not
reprimand–let alone fire–them, but simply reminded the errant
detectives to fill out and submit the requisite forms.

We disagree with our dissenting colleague’s view of the
applicable law and the facts on record. Judge Aldisert states
that, under the majority’s view, a plaintiff may go to trial
“without any affirmative or direct evidence of discrimination
whatsoever.” Dissent op. at 2-3. That is not only the majority’s
view; it is also the view of the Supreme Court of the United
States. In Reeves, the Court rejected the view of those circuits
that had granted summary judgment for the employer on the
ground that the terminated employee had failed to prove more
than employer pretext (the “pretext plus” cases). Citing its prior
decision in St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993), the Court reaffirmed its holding that the factfinder’s
disbelief of the employer’s explanation plus proof of the

13
elements of the prima facie case may be enough for the
factfinder to infer the ultimate fact of discrimination. Reeves,
530 U.S. at 146-47. No affirmative or direct evidence of
discrimination is required, a principle the dissent purportedly
accepts.

Defendants proffered four reasons for Fasold’s
termination. We have set forth above Fasold’s evidence from
which the jury could find pretextual the Defendants’ proffered
explanations that Fasold was terminated because he generated
insufficient numbers of arrests and investigations, was unwilling
to work overtime, and failed to submit proper leave forms.
Although the dissent essentially skips over these proffered
reasons, we note that the jury’s disbelief of these reasons would
be enough for the jury to discredit the Defendants’ explanation.
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 332-34 (3d
Cir. 1995).

Instead, the dissent focuses on what it views as the central
reason for Fasold’s termination, his early departure from the
Cheltenham investigation, which was only one of the four
reasons given by Defendants for Fasold’s termination. It is
indisputable that summary judgment cannot be granted to the
employer if there is a genuine issue of material fact. Brewer, 72
F.3d at 329-31. The dissent argues that Fasold has not shown a
disputed issue of material fact, merely a disputed interpretation.
With respect, that is not what the record shows.

As we noted earlier, Fasold testified that he had advised
Defendant Bason, his supervisor, that he might need to leave
early, notified Bason when he was about to leave, and received
Bason’s approval. Specifically, he testified that Bason replied at
his first notification “ok,” and asked no questions. App. at 131.
After the arrest occurred and he believed that the matter was
under control, he phoned Bason again, this time from the scene,
and apprised him of the situation and told him he was going to
leave. Bason did not object. Bason’s testimony is to the
contrary. He denied that he had initially given Fasold
permission; instead, he testified that he told Fasold during the
second phone call that he believed Fasold had left the scene too

14
early and before the work was completed. App. at 616-18.

It is evident that this dispute, whether Fasold had
permission to leave the scene, is a material issue of fact. A jury
could conclude from the conflicting testimony that Defendants’
reference to Fasold’s actions vis-a-vis the Cheltenham
investigation as the basis for his termination was pretextual.

Moreover, the suggestion that Fasold’s early departure
gave the suspect the opportunity to retrieve the funds from a
hidden safe deposit box to the prejudice of the prosecution is
rebutted by contrary testimony in the record. The dissent fails to
acknowledge Fasold’s assertion that his presence could not have
changed the situation. In the first place, when he left the scene
there were experienced law enforcement officials still present,
including, inter alia, a state trooper with more than six years
experience investigating narcotics crimes, at least two postal
inspectors, a Philadelphia detective who had been specifically
assigned to a joint federal-state narcotics task force, and a
detective and two officers from the Cheltenham police force.
Moreover, it was Friday evening by the time the suspect was
arrested and processed. The safe deposit keys were hidden in a
pocket in a computer bag and were not discovered during the
search of the car. They were found only on the following
Monday during an inventory of the seized items. Fasold claims
there was no way the investigators could have identified the
bank or the branch at which the safe deposit boxes were located
on Friday. It took several days to locate and gain access to the
boxes which were under a corporate name. App. at 502-17.

We do not suggest that a trier of fact would necessarily
accept Fasold’s explanation, but we cannot conclude as a matter
of law that if the jury does credit Fasold it would not also find
that Defendants’ explanation for his termination was
implausible. There is certainly enough on the record to
constitute a material issue of fact between Fasold and
Defendants on this issue.

In summary, Fasold’s prima facie case, combined with the
evidence that is capable of refuting Defendants’ asserted

15
nondiscriminatory reasons, would allow (but certainly not
require)12 a factfinder to determine that Defendants fired Fasold
because of his age. Reeves, 530 U.S. at 148; Sheridan, 100 F.3d
at 1067. Thus, the District Court erred in granting summary
judgment for Defendants on Fasold’s age discrimination claims.

IV.

The District Court also entered summary judgment in
favor of Defendants on Fasold’s retaliation claims. In the
absence of direct evidence of retaliation, retaliation claims under
both the ADEA 13 and the PHRA 14 typically proceed under the
McDonnell Douglas framework. See generally Fogleman v.
Mercy Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002); cf.
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278-79 (3d Cir.
2000) (analyzing retaliation claim brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and

12
Fasold, of course, bears the ultimate burden of persuasion
at trial that he was terminated because of age. See Reeves, 530
U.S. at 143; Williams, 380 F.3d at 759 n.3
13
The anti-retaliation provision of the ADEA provides:

It shall be unlawful for an employer to discriminate
against any of his employees . . . because such
individual . . . has opposed any practice made
unlawful by this section, or 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).
14
The PHRA states in pertinent part that: “It shall be an
unlawful discriminatory practice . . . [f]or any . . . employer to
discriminate in any manner against any individual because . . . such
individual has made a charge, testified or assisted, in any manner,
in any investigation, proceeding or hearing under this act.” 43 Pa.
Cons. Stat. § 955(d).

16
applying McDonnell Douglas framework); Mroczek v.
Bethlehem Steel Corp., 126 F. Supp. 2d 379, 387 (E.D. Pa.
2001) (same).

To establish a prima facie case of proscribed retaliation
under either the ADEA or the PHRA, a plaintiff must show: (1)
that s/he engaged in a protected employee activity; (2) that s/he
was subject to adverse action by the employer either subsequent
to or contemporaneous with the protected activity; and (3) that
there is a causal connection between the protected activity and
the adverse action. Fogleman, 283 F.3d at 567-68. Here, there
is no dispute that Fasold engaged in a protected employee
activity in that he filed a complaint with the EEOC and the
PHRC. Cf. Schmidt v. Montgomery Kone, Inc., 69 F. Supp. 2d
706, 713 (E.D. Pa. 1999) (“Defendant does not contest that filing
an age discrimination charge with the EEOC and PHRC is
protected employee conduct.”). Moreover, Fasold was subject to
an adverse employment decision–the September 11, 2002 denial
of his Level II grievance. The District Court, however, held that
Fasold failed to present any evidence of a “causal link” between
Fasold’s filing of an administrative complaint and the denial of
his grievance and thus had not established a prima facie case of
retaliation.

The record and the applicable law are to the contrary. At
the time Fasold initiated proceedings with the EEOC and the
PHRC, Defendants had already terminated him and refused to
grant him any relief under the Level I grievance procedure.
Thus, the only adverse employment decision to occur after
Fasold’s initiation of administrative action was Castor’s denial
of relief on the Level II grievance proceeding. Referencing this
sequence of events, the District Court stated: “Defendants’
decision not to rehire [Fasold] after his second grievance
proceeding was merely an affirmation of [their] prior decisions
which,” due to their predating of Fasold’s EEOC and PHRC
filing, were obviously not based on his “age discrimination
complaint.” App. at 8. The District Court thus held that the
denial of Fasold’s Level II grievance was merely a reassertion of
the prior decision to terminate him. The Court continued by
stating that even if the Defendants considered Fasold’s pending

17
claims in denying the grievance, the denial of Fasold’s Level II
grievance was not causally connected to Fasold’s filing of the
administrative claim.

We are not persuaded by the District Court’s analysis.
Even when an employer’s underlying employment decision was
not based on an impermissible ground, the employer may not
deny the employee’s resultant grievance because the employee
had sought administrative relief under the federal or state
procedure. Cf. Equal Employment Opportunity Comm’n v. Bd.
of Governors of State Colls. & Univs., 957 F.2d 424, 430 (7th
Cir. 1992) (“The Board may not deny grievance proceedings on
the basis that employees have filed protected ADEA claims.”).
Thus, even if Defendants were justified in firing Fasold and
denying his Level I grievance,15 they would not be free from
liability if they denied Fasold’s Level II grievance because he
had filed an administrative complaint.16

Moreover, stripped of its erroneous underlying premise,
the District Court’s holding that Fasold failed to present
evidence of a causal connection must fall. See generally
Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir.
1997) (“The element of causation, which necessarily involves an
inquiry into the motives of an employer, is highly context-

15
As we discussed above in Section III, the legitimacy of
Defendants’ underlying decisions are far from established.
16
We further reject Defendants’ assertion that the denial of
Fasold’s Level II grievance cannot support a retaliation claim
because the Level II proceeding “was a matter of grace and not a
matter of right.” Br. of Appellees at 28. The Supreme Court has
held that the mere fact that an employer has no obligation to
provide a certain benefit does not mean that the employer is free to
administer such a benefit in a discriminatory fashion. Hishon v.
King & Spalding, 467 U.S. 69, 75 (1984). Thus, even if the Level
II grievance proceeding was a matter of grace rather than right,
Defendants are nonetheless not permitted to reject Level II
grievances because of retaliatory animus. See Bd. of Governors of
State Colls. & Univs., 957 F.2d at 430.

18
specific.”). First, there is a “temporal proximity” between
Fasold’s protected act and the challenged employment decision.
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000). Fasold filed his administrative claim on June 21, 2002.
Castor denied Fasold’s grievance on September 11, 2002, less
than three months later. We have held that when only a short
period of time separates an aggrieved employee’s protected
conduct and an adverse employment decision, such temporal
proximity may provide an evidentiary basis from which an
inference of retaliation can be drawn. Kachmar, 109 F.3d at
178.

Second, Castor specifically questioned Fasold regarding
his pending age discrimination claims during the August 20,
2002 Level II grievance procedure and specifically mentioned
Fasold’s pending claims in his September 11, 2002 letter
denying the grievance. Moreover, during his deposition, Castor
conceded that Fasold’s administrative complaint had “irritated”
him and caused him to view Fasold as suspect. App. at 578.
Therefore, we cannot discount the possibility that Castor’s
irritation with Fasold’s pending administrative claims influenced
the calculus Castor made in his decision to deny the Level II
grievance.

We conclude that Fasold has shown evidence sufficient to
support an inference by the trier of fact of a causal link between
his filing of an administrative complaint (which is protected
action) and Castor’s denial of Fasold’s Level II grievance.
Consequently, we hold that the District Court erred in ruling that
Fasold failed to establish a prima facie showing of retaliation for
purposes of the ADEA and the PHRA. We will thus reverse the
District Court’s order granting summary judgment on Fasold’s
retaliation claims.

V.

For the reasons set forth, we will reverse the decision of
the District Court and remand for additional proceedings
consistent with this opinion.

19
ALDISERT, Circuit Judge, Dissenting.

With respect, I am unable to agree with my colleagues
and am compelled to dissent.

It is my view that the Majority Opinion fails to respect the
cumulative experience of this Court’s judiciary that defines
requirements of proving pretext. In so doing, it misapplies the
burden-shifting paradigm under which ADEA cases are
analyzed.

Detective Fasold does not dispute the facts proffered by
his employer, the district attorney, as its nondiscriminatory
reasons for the decision to fire him. Fasold merely offers a
different interpretation of these facts. This is not enough to
establish pretext.

Under ruling case law of this Court—by panels and en
banc—merely offering a different explanation for an undisputed
fact is not sufficient to show that the fact was a pretext for
discrimination; a denial of the fact itself is required. See
Stanziale v. Jargowsky, 200 F.3d 101, 106 (3d Cir. 2000)
(upholding summary judgment where the plaintiff attempted to
show pretext by disputing the importance of the difference in
educational qualifications between himself and the person hired
rather than challenging the disparity itself or proving that the
qualifications considered bore no actual relationship to the
employment at issue); Keller v. Orix Credit Alliance, Inc., 130
F.3d 1101, 1110 (3d Cir. 1997) (en banc) (determining that
summary judgment was appropriate notwithstanding the
plaintiff’s contention that his failure to meet or approach his goal
of raising $1.5 billion in financing was due to factors beyond his
control stating that “the relevant question is not whether Keller
could have done better; instead, the relevant question is whether
the evidence shows that it was so clear that Keller could not have
done better that ORIX Credit Alliance could not have believed
otherwise.”); Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994)
(“To discredit the employer’s proffered reason, however, the
plaintiff cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether

20
discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, prudent, or competent. Rather, the
non-moving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherences, or contradictions
in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of
credence.”) (citations and internal quotations omitted).

The Majority’s analysis of Fasold’s retaliation claim is
also inadequate. In addition to failing because of a lack of proof
of pretext, the retaliation claim should fail because Fasold
suffered no adverse employment action subsequent to his
engaging in protected activity and causation is lacking.
Accordingly, I would affirm.

I.

This Court has a tradition of dismissing discrimination
claims where the facts of an employer’s asserted
nondiscriminatory reasons for an employment decision are
undisputed. Under the Majority’s view, without any affirmative
or direct evidence of discrimination whatsoever, a plaintiff may
get to trial by offering alternative, less damaging, explanations
for his or her actions without in any way disputing the historical
or narrative facts offered by the employer. This approach will
result in an unfortunate waste of judicial resources by
diminishing the ability of district courts to use the tool of
summary judgment in these types of cases. The Supreme Court
shares my concern and also does not wish to “insulate an entire
category of employment discrimination cases from review under
Rule 50 [and, I would argue, the same concern applies to Rule
56]” or “treat discrimination differently from other ultimate
questions of fact.” Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 148 (2000) (quoting St Mary’s Honor Center v.
Hicks, 509 U.S. 502, 524 (1993); United States Postal Serv. Bd.
of Governors v. Aikens, 460 U.S. 711 (1983)).

II.

The district attorney asserts that Fasold was fired because

21
of problems with his performance in the job of Narcotics
Detective. He proffered evidence of Fasold’s: (1) failure to
generate his own case load; (2) failure to accept overtime when
called upon; (3) failure to submit required leave forms; (4)
leaving early from an important narcotics investigation before it
was complete; and (5) a general reputation among co-workers
for laziness.

Fasold countered these reasons by arguing that “his
supervisor did not object to his leaving early” from the
Cheltenham investigation, that he “never had a negative
performance review before his transfer to the narcotics unit” and
“that he ultimately rectified his failure to develop narcotics cases
on his own after [the] meeting with [Frank] Bason [Fasold’s
immediate supervisor in the narcotics unit] clarified his job
responsibilities.” Fasold v. County of Montgomery, No. Civ. A.
02-9187, 2004 WL 834699, at *2 (E.D. Pa. Apr. 16, 2004). He
argues also that he did not refuse any overtime requests after his
meeting with Bason and that Bason’s deposition shows that
failure to submit required leave forms is not a large or
uncommon mistake. The majority accepts Fasold’s explanations
as “evidence that is capable of refuting Defendants’ asserted
nondiscriminatory reasons.” Maj. Op. at 16. I disagree.

Instead, I accept the conclusion of the District Court that
Fasold’s evidence “‘falls short of what would be necessary to
show that [the district attorney’s] dissatisfaction with his
performance was so clearly unfounded that it cannot have been
sincere.’” Fasold, 2004 WL 834699, at *2 (citing Keller, 130
F.3d at 1110).

Evidence that Fasold improved his arrest record and his
responsiveness to overtime requests after being reprimanded by
Bason does not contradict Bason’s testimony that, although
Fasold had shown improvement, “the overall quality of work
was not on par” with the other detectives.

Evidence that failure to submit required leave forms was
common and not normally dealt with severely does not prevent
Appellees from considering such failures in light of what they

22
perceive as a lazy, slipshod attitude.

Evidence of previous positive performance reviews does
not prevent Appellees from considering the opinions of those
who have expressed a negative view of Fasold’s work. See
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,
528 (3d Cir. 1992) (“Pretext is not established by virtue of the
fact that an employee has received some favorable comments in
some categories or has, in the past, received some good
evaluations.”).

It is conceded that the most important reason for the
decision to terminate Fasold was his work on the Cheltenham
investigation. And like Fasold’s attempts to rebut the other
proffered nondiscriminatory reasons, his attempt here fails to
dispute the basic facts. The majority suggests three “disputed
issues of material fact:”

[M]aterial disputes of fact exist respecting whether
Fasold had received Bason’s pre-event approval to
leave the scene early, the content of the later
conversation wherein Fasold informed Bason that
he was leaving the scene early, and whether Bason
objected when Fasold told him that he was leaving
the scene early.

Maj. Op. at 15-16. Simply stated these disputes are not “material
facts.” What is material is that Fasold left the investigation
before performing his duties and that he did not have specific
permission to leave before his work of inspecting and
inventorying items seized during the arrest was done. This
dereliction of duty standing alone is a sufficient
nondiscriminatory reason for terminating Fasold’s employment.

The fault was not leaving early, as the Majority
characterized the employer’s nondiscriminatory reason; it was
failure to do a proper job before he left. And to this there was no
rebuttal, nor can there be.

23
 III.

The Majority explains what Fuentes, Sheridan v. E.I.
DuPont de Nemours & Co., 100 F.3d 1061 (3d Cir. 1996) (en
banc), and Reeves make clear: that a plaintiff can survive
summary judgment merely by showing that the employer’s
proffered nondiscriminatory reasons are pretextual and does not
need additional affirmative evidence of discrimination. I do not
dispute that this is the law.

My problem is with the Majority’s subsequent conclusion
that “Fasold has presented evidence from which a reasonable
factfinder could choose to disbelieve Defendants’ proffered
legitimate, nondiscriminatory reasons.” Maj. Op. at 14. It is the
analysis that supports this conclusion that is unsupported by our
cases because it allows the plaintiff to show pretext by merely
offering a different explanation of the employer’s proffered
nondiscriminatory reasons without actually disputing the central
facts put forward by the employer. See Stanziale, 200 F.3d at
106; Keller, 130 F.3d at 1110; Fuentes, 32 F.3d at 765.

Our opinion in Sheridan is not to the contrary. There, the
plaintiff succeeded in disputing the facts proffered by her
employer. She presented evidence, contrary to her employer’s
assertions, that she did not give out free drinks on the day in
question and that witness testimony about her alleged violations
of company policy were not credible. Sheridan, 100 F.3d at
1074-1075. She also presented affirmative evidence of sex
discrimination by testifying that, after she had complained about
sex discrimination in the decision not to consider her for the
position of manager of the hotel restaurants, Amblard (her
supervisor) told her that he “planned to watch her ‘like a dog’
and ‘like a hawk.’” Id. at 1074. She also testified that Amblard
would completely ignore her in the presence of other male
supervisors and speak only to them. Id.

Neither is Reeves to the contrary. There again the dispute
was over the facts themselves. The employer claimed to have
fired Reeves “due to his failure to maintain accurate attendance

24
records,” whereas Reeves “introduc[ed] evidence that he had
accurately recorded the attendance and hours of the employees he
supervised.” Reeves, 530 U.S. at 133. In Reeves there also was
abundant and uncontroverted evidence of age discrimination. In
addition to rebutting the employer’s stated reasons for
discharging plaintiff: “Petitioner testified that [a superior] had
told him that he ‘was so old [he] must have come over on the
Mayflower’ and, on one occasion when petitioner was having
difficulty starting a machine, that he ‘was too damn old to do
[his] job.’” Id. at 151. There is absolutely no comparable direct
evidence here.

In these cases we should not be concerned with whether
the impression Fasold’s superiors formed of him was warranted
by the evidence, but whether that evidence was merely a sham.
See Keller, 130 F.3d at 1109 (“[H]e must show, not merely that
the employer’s proffered reason was wrong, but that it was so
plainly wrong that it cannot have been the employer’s real
reason.”). In Fuentes, we explained this tension as the difference
between where an employer is shown to be “wrong or mistaken”
and where the employer’s story is “weak[], implausible[],
inconsistent[], incoherent[], or contradictory[].” 32 F.3d at 765.

Where, as here, the basic facts of the employer’s proffered
legitimate reasons for the employment decision are undisputed,
but the interpretation of those facts are disputed, the employer is
likely to be, at most, wrong or mistaken. See Keller, 130 F.3d at
1110.

Here, there is no dispute, for example, that Fasold had
refused to work overtime, or that he had failed to file required
leave forms, or that his superior, Bason, had assessed his work as
not up to par. With respect to the most important factor, the
performance on the Cheltenham investigation, there is also no
dispute. Fasold left the investigation without completing his
work and without permission to leave before completing his
work. Whether or not Fasold had permission to leave early is
irrelevant. No factfinder could reasonably conclude that Fasold’s
performance in the investigation was so beyond reproach that his
employer’s attempt to use it as a basis for termination was

25
implausible, inconsistent, incoherent or contradictory. See
Fuentes, 32 F.3d at 765.

It is the prerogative of the employer, not this Court, to
determine what constitutes a breach of protocol and the
consequences that follow. See Simpson v. Kay Jewelers, Div. of
Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) (“Whether sales
quotas or evaluation scores are a more appropriate measure of a
manager’s performance is not for the court (or factfinder) to
decide.”); Keller, 130 F.3d at 1109 (“The question is not whether
the employer made the best or even a sound business decision; it
is whether the real reason is discrimination.”); Fuentes, 32 F.3d
at 765 (“[T]he plaintiff cannot simply show that the employer’s
decision was wrong or mistaken, since the factual dispute at issue
is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or competent.”);
Healy v. New York Life Ins. Co., 860 F.2d 1209, 1216 (3d Cir.
1988) (refusing to second guess an employer’s determination that
the plaintiff had done a poor job in completing a specific task
even where the employee/plaintiff was never warned that he was
failing to meet company expectations regarding the task and
stating that “our inquiry must concern pretext, and is not an
independent assessment of how we might evaluate and treat a
loyal employee”); Logue v. Int’l Rehab. Assocs., Inc., 837 F.2d
150, 155 n. 5 (3d Cir. 1988) (“[O]ur task is not to assess the
overall fairness of [the] . . . employer’s actions.”).

In an appropriate discrimination case, the trier of fact may
determine that what the employer claims was a breach was not
actually a breach or did not actually take place and on that basis
conclude that the employer’s proffered reason for an employment
decision was pretextual. See Sheridan, 100 F.3d at 1074-1075.
But here, it is undisputed that Fasold left the scene before the job
was complete and there is no allegation that early departure from
an arrest scene without completing standard police procedures is
an accepted practice. Regardless of any generic approval of early
departure, the DA’s office could reasonably conclude that
leaving the investigation before seized evidence was inspected
and inventoried without specific approval was irresponsible. We
should not be in the business of second guessing these types of

26
decisions. See Keller, 130 F.3d at 1109; Fuentes, 32 F.3d at 765;
Healy, 860 F.2d at 1216.

I would affirm the district court’s grant of summary
judgment because Fasold has not produced the type of evidence
of pretext we require to meet his burden of going forward under
McDonnell Douglas.

IV.

I disagree with the Majority’s analysis of Fasold’s
retaliation claims for the same reasons explained above. A
retaliation claim follows the same McDonnell Douglas
methodology as a basic age discrimination claim; after the
plaintiff makes out a prima facie case, the employer must assert
nondiscriminatory reasons for the action which the plaintiff must
then show to be pretextual. Here, the nondiscriminatory reasons
put forward for refusal to reinstate Fasold at a second grievance
hearing are identical to the reasons for firing Fasold in the first
place. As I have already explained, I view the Fasold’s evidence
of pretext as insufficient.

As to the retaliation claims, however, I dissent for the
additional reason that, like the District Court, I would hold that
Fasold failed to make out a prima facie case of retaliation. The
Majority has stated the test:

To establish a prima facie case of proscribed
retaliation under either the ADEA or the PHRA, a
plaintiff must show: (1) that s/he engaged in a
protected employee activity; (2) that s/he was
subject to adverse action by the employer either
subsequent to or contemporaneous with the
protected activity; and (3) that there is a causal
connection between the protected activity and the
adverse action.

Maj. Op. at 17-18 (citing Fogleman v. Mercy Hosp., Inc., 283
F.3d 561, 567-568 (3d Cir. 2002)). More recently, we have
clarified part two of the test as follows: “[T]he employer took an

27
adverse employment action after or contemporaneous with the
employee’s protected activity.” Glanzman v. Metropolitan
Management Corp., 391 F.3d 506, 515-516 (2004) (citing Farrell
v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000)
(emphasis added)). The sine qua non of retaliation is that adverse
employment action take place. In order for adverse employment
action to take place it must take place after or contemporaneous
with protected activity engaged in by an employee. Glanzman,
391 F.3d at 516. The essence of protected activity is that it take
place prior to the adverse employment action.

The DA’s Office argues that denial of a second request
for reconsideration of his firing was not an adverse employment
action because Fasold was no longer an employee when he
engaged in the protected activity of filing a complaint with the
EEOC and the PHRC. I am inclined to agree. The decision to
terminate Fasold’s employment had already been made and was
clearly approved by District Attorney Bruce Castor. The second
grievance proceeding (the first had denied Fasold’s request for
reconsideration before the EEOC claim was filed) was merely a
reaffirmation of a decision that had already been made and
upheld in the first grievance proceeding.

The Majority supports its conclusion that an adverse result
in a second post-termination grievance proceeding constitutes
adverse employment action by citing Equal Employment
Opportunity Commission v. Board of Governors of State
Colleges & Universitys, 957 F.2d 424 (7th Cir. 1992). But this
case stands for the proposition that an employer may not have a
policy which makes the filing of an EEOC claim a bar to
participation in the company’s own grievance arbitration
program. Id. at 430. There is no indication in the opinion that the
plaintiffs seeking to pursue both federal and internal company
remedies had already had their employment terminated.

In Glanzman, we held that “once her employment was
terminated it was not possible for her to suffer adverse
employment action” and therefore she did not make out a prima
facie case of retaliation under the ADEA. 391 F.3d at 516. To be
sure, in this case we have the added fact of the employer’s post-

28
protected activity denial of a second request for reconsideration.
I would hold that this denial was not an adverse employment
action because Fasold was no longer an employee and the
decision was a mere reaffirmation of one that had already been
made. And I note that the Majority’s ruling does no favors to the
working man or woman. Subjecting adverse rulings in optional
post-termination internal grievance procedures to the retaliation
provision of the ADEA creates a legal climate where employers
are likely to choose not to make such procedures available.

Further, I am in agreement with the District Court that
causation is lacking. For the majority, it is enough that Fasold’s
second request for reconsideration was denied less than three
months after he filed his complaint with the EEOC and that
District Attorney Bruce Castor indicated his irritation with
Fasold’s having filed a discrimination claim. Maj. Op. at 20. The
Majority points out that analysis of causation is “highly context-
specific,” Maj. Op. at 20 (citing Kachmar v. SunGard Data Sys.,
Inc., 109 F.3d 173, 178 (3d Cir. 1997)), and I find this analysis of
causation totally inappropriate in the context of a second post-
termination request for reconsideration.

It is quite a stretch to conclude that a denial of a second
request for reconsideration was caused by anything outside of the
factors that had already gone into the initial decision and
evidence presented at the first grievance proceeding. This
conclusion woefully overestimates the likelihood of Fasold being
reinstated as a result of his second request for reconsideration.

*****

For the reasons heretofore set forth, I would affirm the
judgment of the District Court. Accordingly, I respectfully
dissent.

29