Nidds v. Schindler Elevator Corp., U.S. Ct. of Appeals, 9th Circuit (1996)
Author: Bram

Cause of action: The following is a cause of action for reversal of SJ.

Procedural History: AP appeals grant of SJ to APE, his former employer, to which he CA Fair Employment and Housing Act discrimination and retaliation claims.  This court affirms.

Facts: PL claims he was demoted/moved around b/c of his age (54), and then subsequently fired as retaliation for retaining his discrimination suit.  PL was moved and replaced by a younger guy, was moved all around and eventually got PO'd, eventually copping an attitude towards his last client, which was in a bad area, before being fired.

PL was originally laid off, subsequently brought back on, but not in same job (took different offer), then was transferred, then transferred again, then fired.  At court Nidds did ask for a continuance to depose three witnesses, but he never did, and this suit follows.

Issue(s): Under FRCP 56, does PL entitle himself to dismissal of SJ motion on basis he was able to refute DF's rebuttal to his initial contentions for his dismissal as DF's employee?

Court's Rationale/Reasoning: The prima facie barrier consists of four parts: (1) PL was member of a protected class,

(2) PL performed his job in a satisfactory manner, (3) PL was discharged, (4) PL was replaced by a substantially younger employee w/equal or inferior qualifications.  Court even gives lenience to the 4th claim, whereas PL can show employer needed the continual use of their skills and services in that their valuable duties were being performed or that others were treated more favorably.

Court said trial court erred in ignoring the flexibility in these cases in concluding that in order to establish his prima facie case, Nidds needed to show that he was at least as qualified as his replacement; the court also erred by counting against Nidds that he was not directly replaced by the younger employee.  Thus, Nidds proved the prima facie case.

Schiindler's burden was to merely articulate a legitimate, nondiscriminatory reason for the discharge.  It did by showing a downturn requiring layoffs, and that it used seniority, performance, technical qualifications in deciding whom to discharge.

Now the burden bounced back to Nidds, who had to show either (a) the reasons provided were false; or (b) the true reason he was fired was discriminatory.  Nidds tried to show business was not in downturn by bringing in evidence that showed DF's business was doing quite well, but failed to bring in evidence relating to DF's statement that business was sliding b/c of less construction business.

Then, PL tried to show there were shifting explanations for his initial layoff.  But the reasons were ruled not to be incompatible; "lack of work" generally, in relation to lack of seniority and poorer performance in relation to his co-workers is not incompatible.

Nidds cited the "old timers" remark preceding his initial layoff (by District Manager allegedly to another service mechanic).  This court likened the comment to another case in which the comment of "we don't like gray hair" was uttered in an ambivalent manner and was not tied to the termination.  Here, the comment is vague as to whether it refers to age, performance, or longtime employees.

As to the retaliation claim, PL had to show he engaged in a protected activity, his employer subjected him to adverse employment action, and there is a causal link between the two.  Nidds was terminated, there was a causal link in that 4 months after his supervisor asked him if his discriminatory claim was still involved he was fired and one month after he filed his second complaint.

Schindler met its burden, again, for articulating a legitimate reason for the layoff (management of last employer asked to remove Nidds).  Based on these factors weighed with one another, there was not enough evidence for a reasonable factfinder to conclude that Schindler's reason was a pretext for retaliatory termination.  Nidds' last employer wrote a letter discussing its displeasure with PL failing to show to fix something, but the letter was written after his contracting boss spoke to the supervisor, not before, so no causal link.

Rule: Standard of review: de novo/plenary.  Must decide if there was a genuine issue as to any material fact.  Genuine relates to the quantum of evidence PL must produce to defeat DF's motion for SJ.  There must be sufficient evidence "that a reasonable jury could return a verdict for the nonmoving party.  If evidence is merely colorable (valid or genuine), or not significantly probative, SJ may be granted.

Materiality, by the substantive law, refers to which facts should be identified as material.

Holding: No.  Schindler was entitled to SJ, b/c the evidence PL offered to counteract DF's nondiscriminatory reason is not sufficiently probative that it would allow a reasonable finder of fact to conclude either that the alleged reason is false, or that the true reason for the discharge was discriminatory.

Dissenting: (Noonan): The evidence indeed provided a reasonable juror could have inferred PL's dismissal was pretextual and that it in fact laid him off b/c of age