Keiser v. The Borough of Carlisle

Filing 43

MEMORANDUM (Order to follow as separate docket entry) re 35 MOTION for Summary Judgment filed by The Borough of Carlisle. Accordingly, for the foregoing reasons, the defendants motion for summary judgment will be DENIED. An Order consistent with this Memorandum will issue separately. Signed by Magistrate Judge Martin C. Carlson on 2/24/2017. (ktt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL T. KEISER,
Plaintiff
v.
THE BOROUGH OF CARLISLE,
Defendant

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Civil No. 1:15-CV-450
(Magistrate Judge Carlson)

MEMORANDUM OPINION
I.

INTRODUCTION
Did the nearly 30-year career of a local government employee come to an

end as the result of declining performance and interpersonal disputes, or was it
instead undone by his supervisor’s invidious age-based discrimination and
retaliation? This action presents that question for resolution.
The plaintiff in this action, Michael Keiser, worked for 27 years as the
Director of Public Works for the Borough of Carlisle before he was fired on May
1, 2014, just hours after formally complaining to his supervisor about what he
perceived as his supervisor’s repeated ageist and discriminatory comments and
criticism. Keiser alleges that his firing constituted unlawful age discrimination and
was retaliatory.

The Borough, and Keiser’s supervisor, Mathew H. Candland, Sr., maintain
that Candland was compelled to terminate Keiser’s employment because it had
become impossible to work cooperatively with Keiser; because of fundamental
disagreements over significant public-works projects; and because morale had
reached an unacceptable low within Keiser’s department. Keiser retorts that these
given reasons are pretextual cover for his unlawful firing, which is belied by
evidence of Candland’s discriminatory comments and other evidence in the record
that cast doubt on Candland’s articulated justification.
Keiser brought this federal civil action on March 4, 2015, bringing claims
for discrimination and retaliation under the Age Discrimination in Employment
Act, 29 U.S.C. §§ 621 (“ADEA”).

After engaging in discovery and an

unsuccessful effort at negotiating a settlement of the claims, the Borough has
moved for summary judgment, arguing that Keiser lacks sufficient evidence to
support either his discrimination or retaliation claim. The motion is fully briefed
and is ripe for disposition.
Following careful review of the parties’ briefs, factual statements, and
citation to record evidence, the Court finds that this case is riddled with factual
disputes that make summary judgment inappropriate. Accordingly, for the reasons
that follow, the Borough’s motion will be denied and the case will be set for trial.

2

II.

BACKGROUND
The factual background to this memorandum is taken from the parties’

statements of material fact, to the extent there is no dispute, and where the record is
disputed, it has been construed in the light most favorable to the plaintiff as the
non-moving party, for purposes of resolving the pending motion only.
Michael Keiser was born in 1954. He began working for the Borough of
Carlisle on November 16, 1987, when he was hired as its Public Works Director
and Borough Engineer. (Doc. 38-2, Deposition of Michael T. Keiser at N.T. 8.)
By objective accounts, and during employee reviews, his performance was rated as
having met or exceeded expectations at all times with one exception, when he
received some criticism in a December 2013 evaluation. (Pl. App’x in Support of
Reply to Def.’s Concise Statement of Material Facts (“Pl. App’x.”), Ex. A ¶ 4;
Keiser Dep., N.T. 55.) Owing to his performance with the Borough, the Keiser
was appointed as Interim Borough Manager from June 14, 2007, to February 2,
2008. The Borough Council was evidently pleased with Keiser’s performance in
this interim role, and asked him to accept a permanent appointment as Borough
Manager, but Keiser declined because he felt he could best serve the Carlisle
community as Public Works Director and Borough Engineer. (Keiser Dep. N.T.
13, 17.)

3

At the time of his hire, and at all times going forward, Keiser reported
directly to the Borough Manager. (Doc. 38-4, Deposition of Mathew H. Candland
N.T. 24-26.)

In July 2012, Mathew H. Candland was hired as the Borough

Manager. (Id., N.T. 22.) Keiser reported to Candland from the date of Candland’s
hire until May 1, 2014, when Candland fired Keiser. (Id., N.T. 24-26; Doc. 38-5,
Ex. 22.) According to a number of witnesses other than Keiser himself, the
plaintiff was judged to be able and competent over the course of his employment
with the Borough. (Doc. 38-8, N.T. 16, 56-58; Doc. 38-14, N.T. 40-42; Doc. 3813, N.T. 12-15; Doc. 38-11, N.T. 21-23, 28-29, 38-39; Doc. 38-16, N.T. 16-19, 7475, 100, 143-144; Doc. 38-6, N.T. 159-160.)
Notwithstanding a long career with Borough that was adjudged consistently
to be meeting or exceeding expectations, after Candland’s arrival Keiser contends
that he was subjected to heightened and unreasonable levels of scrutiny, which he
had not previously experienced. He also claims that during this time Candland
routinely made critical remarks that reflected ageist and discriminatory bias against
Keiser as an older employee, referring to him or his work as “outdated”, “old
school”, “old fashioned” and “antiquated”, and these remarks were attested to by
multiple Borough employees who testified in this action. (Doc. 38-6, N.T. 68-69;
Doc. 38-13, N.T. 26-29, 36-37, 48, 52-55; Doc. 38-9, N.T. 54; Doc. 38-2, N.T. 95,

4

99, 101-102, 107-109, 194; Doc. 38-3, Ex. Z.) Candland has admitted that he used
such terms to refer to Keiser and his work. (Doc. 38-4, N.T. 62-64.)
The Valley Meadows Storm Water project was a flashpoint between Keiser
and Candland. (Doc. 38-13, N.T. 53-54.) The project was part of an unfunded
initiative undertaken by Keiser and the Public Works Department to abate flooding
from storm water in the Valley Meadows neighborhood and a surrounding park,
which had been a known issue in the community for more than 40 years. (Doc. 382, N.T. 158-159; Doc. 38-11, N.T. 42-44; Doc. 38-15, N.T. 125; Doc. 38-13, N.T.
19.) The evidence indicates that the project had succeeded in mitigating the
problem the pooling storm water had presented to homes in the Valley Meadow, as
they no longer experienced flooding and other property damage following the
effort. (Doc. 38-6, N.T. 110-111; Doc. 38-11, N.T. 56; Doc. 38-9, N.T. 32; Doc.
38-13, N.T. 20-21; Doc. 32-2, N.T. 162.) Nevertheless, Keiser and others have
observed that Candland denigrated the Valley Meadows project and Keiser’s
handling of it. They also have testified that Candland’s ageist views of Keiser as a
manager, reflected in the use of the terms “outdated”, “old school”, “old
fashioned”, and “antiquated” extended beyond this single project to include his
management of repairs at the Gatehouse and Amphitheater at Thornwald Park,
among other projects. (Keiser Dep., N.T. 101-102, 107-108, 194; Doc. 38-5, Ex.
8.)
5

After Candland was brought on, other Borough employees had concerns
about their own job security, and attested that it was common knowledge among
Public Works employees that Candland would “rather start over with younger guys
and have them, you know, be groomed the way he likes to see it instead of, you
know, some of the older ways of thinking.” (Doc. 38-13, N.T. 26.) Employees
testified that they worried about losing their jobs because of their advancing age.
(N.T. 38-14, N.T. 32; 38-12, Deposition of Theodore Weber (“Weber Dep.”) N.T.
45; Doc. 38-13, N.T. 28-30.)

For his part, Keiser attested that he informed

Candland multiple times that he was offended by what he considered Candland’s
ageist remarks. (Keiser Dep., N.T. 95-99, 107-115.) Notwithstanding Keiser’s
efforts to address the matter, he claims that this served only to intensify Candland’s
unjustified scrutiny of him and his work, resulting in an unfavorable Annual
Performance Evaluation. (Doc. 38-5, Ex. 8.) Prior to his eventual termination, this
performance evaluation represented the only time in Keiser’s entire time of
employment with the Borough when he was subjected to an unfavorable review,
and he maintains that it was issued in keeping with Candland’s written plan “to
replace maturing staff (with particular focus on replacing leadership.)” (Doc. 38-5,
Ex. 2.)
Even after this negative evaluation, Keiser and Candland continued to
discuss, and in many instances disagree about, the management of the Valley
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Meadows project.

(Doc. 38-5, Exs. 10, 14.)

The plaintiff describes these

conversations as “spirited and passionate,” whereas the Borough has characterized
them as impolite, disrespectful and needlessly confrontational, confirming that
Keiser was unwilling to work cooperatively with Candland and others on important
matters. The plaintiff has, however, cited to testimony showing that other Borough
employees who observed these conversations did not consider Keiser’s interactions
with Candland to be “combative”. (Doc. 38-6, N.T. 73-74.)
In the spring of 2014, shortly before he would be fired, Keiser maintains that
he had no inkling that his job was in jeopardy. He notes that he had not been
disciplined at any time during Candland’s two-year tenure as Borough Manager,
and it appears that Candland never informed the plaintiff that his job was in
danger. (Doc. 38-6, N.T. 115, 126; Doc. 38-2, N.T. 179-180; Doc. 38-3, Ex. DD.)
Keiser and the Borough’s Human Resource and Risk Manager, Thomas Hamilton,
separately confirmed that Keiser had not received any formal discipline by
Candland prior to his employment being terminated. (Doc. 38-6, N.T. 115; Keiser
Dep., N.T. 179-180.)
On April 28, 2014, three days before Keiser was fired, the Borough Council
held an Executive Session meeting. (Doc. 38-8, N.T. 33.) During that executive
session, Council members Linda Cecconello and Donald Grell testified that there
was no plan to terminate Keiser’s employment at that time. The issue came up
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because of Candland’s review of the plaintiff’s performance and because of an
issue between Keiser and a neighbor which had received some local media
attention. (Doc. 38-9, N.T. 76.) According to Cecconello, Candland explicitly told
the Council that “Mike’s job was not in jeopardy . . . That was a direct quote.”
(Cecconello Dep. at 71-74.) Councilman Grell testified similarly that Candland
made clear at the Executive Session that Keiser “wasn’t going to be fired.” (Doc.
38-8, N.T. 34.) However, in light of some of the issues that had been discussed,
Candland scheduled a meeting with Keiser on May 2, 2014. (Doc. 38-4, N.T. 206207; Doc. 38-5, Ex. 14.)
This meeting was moved up to May 1, 2014, at Keiser’s suggestion, and in
connection with the ongoing dialog between the two men regarding the Valley
Meadows project. The meeting was held in the morning and was attended by
Keiser, Candland and Hamilton. The meeting apparently concluded without any
resolution on the disagreement concerning the project’s direction, with Keiser
offering to “agree-to-disagree” with Candland on the matter. (Doc. 38-2, N.T.
185.)

According to Keiser, during the remainder of the meeting, Candland

scrutinized his other work on the Gatehouse and Amphitheater projects and did so
by using derogatory and ageist terms to describe him and his work. (Keiser Dep.,
N.T. 194.) At that time, Candland concluded the meeting and told Keiser to return

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to work. Keiser was not fired at that time. (Doc. 38-2, N.T. 187; Doc. 38-6, N.T.
138.)
Keiser contends that he felt compelled to lodge a formal written complaint
for age discrimination due to Candland’s repeated use of discriminatory and ageist
remarks about him and his work. (Doc. 38-2, N.T. 111, 119.) Before he returned
to work, Keiser hand-delivered a complaint of age discrimination to Candland,
with Hamilton present. He attested that he did so because he had endeavored to
address the problem with Candland informally, and had been met in response with
further, unabated ageist remarks, harassment and discrimination. (Doc. 38-2, N.T.
194; Doc. 38-6, N.T. 140.) Keiser read his written complaint aloud to Candland
and Hamilton, and then returned to work. (Doc. 38-2, N.T. 188.)
That afternoon, at approximately 3:00 p.m., Candland approached Keiser
and asked him to attend another meeting that day. (Id., N.T. 189-190.) When he
showed up at this meeting, Candland informed him that he was fired, reading aloud
the termination letter to Keiser. (Doc. 38-5, Ex. 22.) According to Keiser, he was
in shock after being terminated, noting that prior to that day “there was never any
discussion, any disciplinary action, any threat of disciplinary action, any threat of
termination based on the three issues [listed in the termination letter] . . . .” (Keiser
Dep. N.T. 179.) For his part, Candland has acknowledged that he had at no point
committed to writing his plan to terminate Keiser’s employment prior to this time,
9

and the Borough has produced no evidence to show that Keiser’s employment was
in jeopardy. (Candland Dep. N.T. 223.) Quite the contrary, as noted, two Council
members have attested that at a meeting with Candland, he revealed no plans either
to discipline Keiser or terminate his employment, and in fact had told the Council
that Keiser’ job was not in jeopardy as of April 28, 2014.1
This litigation followed on March 4, 2015, with the plaintiff filing a twocount complaint alleging that the Borough violated the ADEA by discriminating
against him on the basis of age and for retaliating against him after he protested
Keiser’s allegedly ageist and discriminatory treatment.
Following discovery, the Borough filed the instant motion for summary
judgment on November 8, 2016.
III.

STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In evaluating a motion for summary
The Court recognizes that the Borough has presented a factual narrative that
stands in marked contrast to the one presented above. However, under the law as
the nonmoving party, Keiser is the party who receives the benefit of the doubt at
summary judgment with respect to disputed issues of fact, and the factual record
contains evidence that supports Keiser’s version of events. The Court is making
absolutely no factual findings in ruling on the motion, but is simply considering the
evidentiary record in the light most favorable to Keiser as the non-movant, as we
are legally required to do. Thus, we simply highlight that there plainly exist
competing factual narratives in this litigation that make it inappropriate for
resolution on a summary judgment motion.
10
1

judgment, a court must determine “whether the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits show that there is no genuine
issue of material fact and whether the moving party is therefore entitled to
judgment as a matter of law.” Macfarlan v. Ivy Hill SNF, LLC., 675 F.3d 266, 271
(3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A
disputed issue is only “genuine” if there is a sufficient evidentiary basis upon
which a reasonable factfinder could find for the non-moving party. Kaucher v.
Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual dispute is “material” only if it
could affect the outcome of the suit under the governing law. Doe v. Luzerne
Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (citing Gray v. York Papers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)). The Court is not tasked with resolving disputed issues
of fact, but only with determining whether there exist any factual issues that must
be tried. Anderson, 477 U.S. at 247-49.
In considering a motion for summary judgment, a court must view the
evidence in the light most favorable to the non-moving party. Macfarlan, 675 F.3d
at 271; Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009).
Where there exist factual issues that cannot be resolved without a credibility
determination, the court must credit the non-moving party’s evidence over that
presented by the moving party. Liberty Lobby, 477 U.S. at 255. However, if there
11

is no factual issue presented, and if only one reasonable conclusion could arise
from the record with respect to the potential outcome under the governing law, the
court must award summary judgment in favor of the moving party. Id. at 250.
The court must review the entire record, but in doing so must take care to
“disregard all evidence favorable to the moving party that the jury is not required
to believe.”

Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 150-51

(2000). The task for the court is to examine “whether the evidence presents a
sufficient disagreement to require submission to the jury or whether it is so onesided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at
251-52.
Furthermore, in cases involving allegations of employment discrimination,
such as this one, the foregoing standard of review is applied with special care
because the intent and credibility of parties are typically crucial. Conneen v.
MBNA Am. Bank, N.A., 334 F.3d 318, 325 n.9 (3d Cir. 2003). In undertaking this
review, the court avoids making credibility determinations and does not weigh the
evidence, and instead must take care to accept as true the non-movant’s evidence
and draw all inferences in his favor. Liberty Lobby, 477 U.S. at 255; see also
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004).

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IV.

DISCUSSION
The Borough argues that it is entitled to summary judgment on both the

discrimination and retaliation claim alleged in the complaint. These claims, and
the Borough’s arguments, are addressed separately below.
A.

Discrimination

The ADEA prohibits employers from taking adverse employment action
against an employee who is at least 40 years old, 29 U.S.C. § 631(a), “because of
such individual’s age.” 29 U.S.C. § 623(a). A plaintiff alleging that he was
subjected to adverse employment action, such as a termination, in violation of the
Act must show that his “age was the ‘but-for’ cause of the employer’s adverse
action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009). It is not enough
for a plaintiff to show that his age was a factor that motivated the employer’s
action, but instead must point to evidence that could support an inference that his
age had a “determinative influence” on the decision. Id. at 176. This burden
remains squarely with the plaintiff, who may prove his claims through direct or
circumstantial evidence. Id. at 177.
Prior to the Supreme Court’s decision in Gross, the Third Circuit had
instructed that direct evidence of age discrimination meant “evidence sufficient to
allow the jury to find that ‘the “decision makers placed substantial negative
reliance on [the plaintiff’s age] in reaching their decision to fire him.’” Fakete v.
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Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002) (quoting Connors v. Chrysler Fin.
Corp., 160 F.3d 971, 976 (3d Cir. 1998)). Gross fundamentally changed this and
now it is clear that “ ‘substantial negative reliance’ on age is not enough [to prove
discrimination in violation of the ADEA]; the evidence must be a sufficient basis
for a reasonable jury to conclude that age was the determinative, but-for cause of
the employee’s termination.” Palmer v. Britton Industries, Inc., 662 F. App’x
147, 151 (3d Cir. Nov. 7, 2016).
While this is an exacting burden of proof, a plaintiff may also prove age
discrimination through circumstantial evidence, and when he does so the court
applies the familiar burden-shifting framework announced in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). The Third Circuit has explained
application of McDonnell Douglas in the context of ADEA discrimination claims
as follows:
Under McDonnell Douglas, the plaintiff bears the burden
of proof and the initial burden of production, having to
demonstrate a prima facie case of discrimination by
showing first, that the plaintiff is forty years of age or
older; second, that the defendant took an adverse
employment action against the plaintiff; third, that the
plaintiff was qualified for the position in question; and
fourth, that the plaintiff was ultimately replaced by
another employee who was sufficiently younger to
support an inference of discriminatory animus. Once the
plaintiff satisfies these elements, the burden of
production shifts to the employer to identify a legitimate
nondiscriminatory reason for the adverse employment
action. If the employer does so, the burden of production
14

returns to the plaintiff to demonstrate that the employer’s
proffered rationale was a pretext for age discrimination.
At all times, however, the burden of persuasion rests with
the plaintiff.
Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009) (citations omitted);
see also id. at 691 (holding that this standard does not conflict with Gross).
In order to show pretext, “the employee must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably either (1) disbelieve
the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a . . . determinative cause of the
employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). In order
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 discriminatory animus motivated the employer, not whether the
employer is wise, shrewd, product or competent.” Id. at 765. “Rather, the nonmoving

plaintiff

must

demonstrate

such

weaknesses,

implausibilties,

inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find
them ‘unworthy of credence.’ [Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983
F.2d 509, 531 (3d Cir. 1992)], and hence infer ‘that the employer did not act for
[the asserted] non-discriminatory reasons.’ Josey v. John R. Hollingsworth Corp.,
996 F.2d 632, 638 (3d Cir. 1993).” Id.
15

In this case, the parties agree that Keiser has met his burden with respect to
the first three factors of the prima facie test. The Borough argues, however, that
Keiser has failed to show that he was replaced by a person who was sufficiently
younger to support an inference of discriminatory animus. The parties offer little
on either side with respect to this issue, and the court finds that it is a disputed and
relevant factual issue that alone cannot carry the defendant’s burden on summary
judgment.
The record is somewhat unclear regarding the exact ages of the employees
who replaced Keiser after he was fired. It appears that immediately following
Keiser’s termination, Candland assumed his duties. It also appears that Candland
may be a number of years younger than Keiser, although neither of the parties has
made Candland’s precise age clear to the court. During his deposition he indicated
that he graduated from high school in 1984 and shortly thereafter matriculated at
Brigham Young University. The parties seem to agree that he is substantially
younger than Keiser.
The Borough notes that Candland subsequently hired Mark Malarich to
serve as the Public Works Director, who was born in 1959 and is more than five
years younger than the plaintiff, but older than Candland and substantially closer in
age to Keiser. The Borough suggests that Malarich’s hiring undermines the charge
of age-based discrimination, and argues that Keiser should be required to do more
16

to produce evidence that is suggestive of discrimination, since the evidence of an
age disparity is slight. Keiser responds, somewhat speculatively, that the Borough
may have hired Malarich to replace Candland only after learning that Keiser was
pursuing a claim of age discrimination, in order to make it appear that age did not
affect the Borough’s hiring decisions, and because other younger applicants were
passed over in favor of Malarich, who was older than them.
Although the record evidence regarding the age disparity between Keiser
and either Malarich or Candland is somewhat imprecise, and the role that age may
have played in hiring decisions is clearly disputed, there is some evidence showing
of sufficient age disparity among the men. Keiser, who was born in 1954, was
more than five years older than Malarich, (Doc. 38-1 at CB-000340), and the
record strongly suggests that Candland was substantially younger than Keiser.
This presents, at least initially, something of a close issue. In O’Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), the Supreme Court
explained that under the ADEA, a plaintiff cannot make out a prima facie case that
would allow an inference of discrimination if the employee is replaced with
another worker who is “insignificantly younger.” Id. at 312-13. The Third Circuit,
in turn, has instructed that in order to meet the fourth prong’s requirement that the
plaintiff be replaced by a significantly younger individual, “there is no particular
age difference that must be shown, but while different courts have held . . . that a
17

five year difference can be sufficient, . . . a one year difference cannot.” Monaco v.
Am. Gen. Assur. Co., 359 F.3d 296, 307 (3d Cir. 2004) (quoting Showalter v Univ.
of Pittsburgh, Med. Ctr., 190 F.3d 231, 236 (3d Cir. 1999); see also Showalter, 190
F.3d at 235 (“The fact that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has lost out because of
his age.”).
In Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995), the Third
Circuit found that the district court had erred in finding that the plaintiff’s prima
facie case failed at the fourth prong, where the district court considered only the
four-year difference between the plaintiff and his eventual replacement hire and
failed to consider the fact that for several months before the plaintiff’s replacement
hire was brought on, a substantial portion of the plaintiff’s job responsibilities had
been assumed by an employee “well over ten years younger” than the plaintiff.
The Third Circuit found that the combined differences in ages was “clearly
sufficient” to satisfy the fourth prong of the prima facie standard by raising an
inference of age discrimination. Id. at 730.
In this case, like Sempier, the plaintiff has pointed to evidence showing that
after he was fired his job duties were assumed by Candland, who was not only the
individual solely responsible for firing him but who was also many years younger
and had, according to the plaintiff, made a number of comments suggesting that
18

Candland harbored an animus towards older workers. Keiser has also noted that
his official replacement who was hired some time later was at least five years
younger than him, which courts have found in some cases is a sufficient
differential. Monaco, 359 F.3d at 307 (citing to cases recognizing that a five-year
difference may be sufficient). At this stage of the litigation, this evidence of age
disparity, coupled with the other evidence in the record suggesting that Candland
made a number of statements that Keiser and other Borough employees interpreted
as evincing an age-based discriminatory animus, the court finds that there is
sufficient evidence to support the plaintiff’s prima facie showing of age
discrimination.
Next, the Borough argues that even if Keiser has made a prima facie
showing his discrimination claim fails as a matter of law because the Borough had
good cause to terminate his employment, and that the evidence unequivocally
shows a frayed working relationship between Keiser and Candland, and a number
of areas in which Keiser had fallen short of performance expectations which
justified Candland firing him after the latest blow up the two men had during their
penultimate meeting, after which Keiser lodged a formal complaint. The Borough
contends that the fractured working relationship between Keiser and Candland is
undisputed, and that they had significant differences of opinion about the direction
in which to take certain important infrastructure projects. The Borough also argues
19

that Keiser had difficulties with other department heads, which though not as
serious as his working conflict with Candland, nevertheless existed in some way
that the Borough maintains is not subject to any dispute. In effect, the Borough
urges the court to find that this evidence reflects as a matter of law that Candland
would have had sound business reasons to terminate Keiser’s employment, and
therefore his decision in this regard is effectively beyond challenge in this
litigation.
Keiser responds by noting that there is substantial evidence in the record to
support his assertion that the Borough’s stated reasons for his termination are posthoc pretextual cover for Candland’s discriminatory firing. Keiser recognizes that
the Candland has offered reasons for terminating his employment that are couched
in business judgment, but counters that there is ample evidence to show that that
the Borough’s proffered reasons are not the real reason he was fired.
As noted, to show pretext, a plaintiff must come forward with evidence that
would allow a factfinder to reasonably either disbelieve the defendant’s articulated
legitimate reasons, or otherwise believe that “discrimination was more likely than
not a motivating or determinative cause of the adverse employment action.”
Fuentes, 32 F.3d at 765. This standard puts “ ‘a difficult burden on the plaintiff.’ ”
Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005) (quoting Fuentes, 32
F.3d at 765). To carry this “difficult burden,” a plaintiff is tasked with producing
20

evidence of “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence.” Id.
Notwithstanding the difficulty of this burden, the court finds that Keiser has
adduced sufficient evidence to have this case presented to a jury, and not to be
decided on a cold record as a matter of law by the court, particularly where
resolution of the disputed issues of fact turns so closely on the credibility of Keiser,
Candland and other witnesses.
The court recognizes that the Borough has offered Candland’s business
judgment as a nondiscriminatory reason to justify Keiser’s firing. In general, a
court “is neither permitted to get involved in the subjective business decisions of
the employer, nor set its own employment standards for the employer, unless there
is evidence of discrimination.” Menta v. Community Coll. of Beaver Cnty., 428 F.
Supp. 2d 365, 373 (W.D. Pa. 2006) (citing Ezold, 983 F.2d at 527). However, it is
axiomatic that a court’s deference to a defendant’s business judgment is limited to
lawful business purposes, and that a defendant’s business judgment will not
insulate an employer from liability for unlawful discrimination. See, e.g. Beaird v.
Seagate Tech. Corp., 145 F.3d 1159, 1169 (10th Cir. 1998) (“The ADEA . . . does
not immunize all potential business judgments from judicial review for illegal
discrimination.”); EEOC v. Yenkin-Majestic Paint Corp., 112 F.3d 831, 835 (6th
21

Cir. 1997) (observing that the “decision to terminate an employee based upon
unlawful considerations does not become legitimate because it can be
characterized as a business decision.”). Thus, the court recognizes that the Borough
has come forward with business reasons for its decision to fire Keiser –
interpersonal disputes, as well as a fractured working relationship between Keiser
and Candland – but the court nonetheless is obliged to consider the evidence that
Keiser has highlighted, which he argues undermine the Borough’s proffered
business reasons, as well as evidence that could lead a factfinder to conclude that
age-based discrimination is more likely than not the reason for the action taken.
Further, we must consider this evidence in a light most favorable to Keiser, as the
party opposing summary judgment.
Viewed through this lens, the court agrees with Keiser that the evidence that
the Borough has relied upon to justify its employment action is almost entirely
predicated on Candland’s own testimony or assertions, and is therefore bound up in
credibility determinations, matters which are the province of the jury. To justify
Candland’s assertion that Keiser was poorly managing the Borough’s infrastructure
needs and projects, the Borough cites to the evaluation of a professional
engineering firm that concluded Keiser’s approach to the Valley Meadows
flooding issues was not going to work. (Candland Dep., N.T. 114-115.) As Keiser
observes, however, the Borough has not supported this assertion with any
22

documentary evidence. But more importantly, this assessment was provided after
Keiser was fired, and thus it is difficult to see how it could have provided an
informational basis for Candland’s decision.

Furthermore, as Keiser notes,

Candland did possess an opinion given by another professional engineering and
environmental services firm, Skelly and Loy, which concluded that Keiser’s
approach to the project would have been effective. (Id., N.T. 97-98.) Candland,
who does not have an engineering background and does not hold certificates in the
fields of engineering and waste water management, declined to accept this
particular opinion and concluded that it was defective. (Id.; Doc. 38-2, N.T. 163,
174.) This disparity in the record provides some basis to question the Borough’s
stated justifications.
Keiser also notes that although he received one equivocal performance
review in December 2013 where Candland noted that he was “somewhat
disappointed” in Keiser’s job knowledge and performance, Keiser points out that
he had never before or since received a negative job evaluation from the Borough,
and that even after this tepid assessment, Keiser was never disciplined with respect
to any aspect of his job performance. (Keiser Dep., N.T. 179-80; Doc. 38-6, N.T.
115.) Keiser also cites to the testimony of other witnesses who spoke to his
competence, and perhaps most importantly he highlights deposition testimony
which would show that just days before terminating his employment, Candland
23

had told two Council members that there was no plan or reason to terminate the
plaintiff’s job. (Doc. 38-9, N.T. 71; Doc. 38-8, N.T. 34.)
The Borough also offers that it fired Keiser because he was insubordinate
and had a toxic working relationship with Candland, yet problems in the
relationship between Candland and Keiser are not identified in the May 1, 2014
termination letter, thus casting some doubt on this stated justification which was
argued at length in the Borough’s brief. (Doc. 36, at 7-11.) As Keiser notes, in
Fuentes the Third Circuit found that inconsistencies in the employer’s stated
reason or explanation for its employment action may support an inference of
pretext. Fuentes, 32 F.3d at 764. In this case, given that there are a number of
questions regarding the proffered reasons for firing Keiser, and the fact that many
of them rest on Candland’s assertions alone, this inconsistency may be relevant to
a factfinder in assessing the defendant’s explanation.
The Borough also generally condemns Keiser as the person responsible for a
morale problem within the Public Works Department, but here again the evidence
is not only based entirely on Candland’s testimony or assertion, but is in conflict
with substantial other witness testimony who state that Candland was the source of
the problem. (Doc. 38-14, N.T. 36-37, 39; 38-13, N.T. 69-70; Doc. 38-11, N.T.
104-105, 107-108.)

Candland acknowledged that others felt that he was

responsible for the Department’s low morale, and he even acknowledged during
24

his deposition that the plaintiff was not “the cause of it” or the “sole reason” for
low morale, but may have failed to manage it effectively. (Doc. 38-4, N.T. 118.)
Accordingly, there are, on the paper record, questions about the extent of the
morale problem in the Department, and whether Candland and the Borough
actually believed that Keiser was responsible for it, as is now being asserted. Given
the equivocal nature of the evidence offered in support for the plaintiff’s
termination, coupled with the fact that much of this evidence is taken from
Candland’s assertions alone, and in some important respects either lacks support in
the record or could be construed as a post-hoc rationalization for the action taken,
the court finds that the appropriate means of resolving the plaintiff’s discrimination
claim is to have this evidence, and the other evidence that the plaintiff has adduced
in support of his claims, is to have this evidence considered and evaluated by a
jury.
The court’s decision in this regard is also influenced, in part, by the fact that
Keiser and other witnesses have attested to Candland’s repeated and frequent use
of language which may be construed as evincing age bias against older workers.
As noted, under Fuentes, a plaintiff may point to evidence that would tend to
discredit the employer’s proffered nondiscriminatory reason for an adverse action,
or adduce evidence, whether direct or circumstantial, that could support a finding
that discrimination was more than likely a motivating or determinative cause of the
25

adverse action. 32 F.3d at 763-65. In this case, the plaintiff has pointed not only
to evidence that could cast doubt on the Borough’s proffered reasons for firing
Keiser, but also to evidence suggesting an atmosphere of ageism in the workplace
felt by Keiser and others. This evidence, taken in the light most favorable to
Keiser at this stage, would show that Candland had made repeated reference to
Keiser as “old-fashioned”, “old school”, “antiquated”, and “outdated”. (Doc. 38-6,
N.T. 68-69; Doc. 38-13, N.T. 26-29, 36-37, 48, 52-55; Doc. 38-9, N.T. 54; Doc.
38-2, N.T. 95, 99, 101-02, 107-09, 194; Doc. 38-3, Ex. Z.)

Candland also

apparently had issued a written plan that explicitly looked to “replace maturing
staff (with particular focus on replacing leadership).” (Doc. 38-5, Ex. 2.) One
former employee, Donald Reisinger, testified about meetings during which Public
Works employees discussed Candland’s preference for “younger guys and [to]
have them, you know, be groomed the way he likes to see it instead of, you know,
some of the older ways of thinking . . .” (Doc. 38-13, N.T. 26.) Reisinger testified
that employees within the Department expressed fear of being fired because of
their age. (Id., N.T. 108-110.) To be sure, Candland either denies having made
such remarks, or he discounts their significance or meaning. (Doc. 38-4, N.T. 6268.) Nevertheless, there is evidence that could support a finding that such remarks
were made, and made repeatedly, and were in fact being made with respect to

26

Keiser up until the point at which he filed a formal complaint and, shortly
thereafter, was fired.
The Borough vehemently disputes that Candland did, in fact, make such
comments and argues that regardless they were simply stray comments that could
not support a finding of discriminatory animus. The court disagrees, and finds that
the disputed record on this score precludes summary judgment. In other such
cases, courts have found that discriminatory comments made by decisionmakers,
may constitute direct evidence of age-related animus and provide support for a
plaintiff’s showing of pretext. See, e.g., Kargbo v. Phila. Corp. for Aging, 16 F.
Supp. 3d 512, 525 (E.D. Pa. 2014); see also Fakete v. Aetna, Inc., 308 F.3d 335,
339 (3d Cir. 2002) (statement of age-related animus by plaintiff’s direct supervisor
was “evidence sufficient to allow the jury to find that the decision makers placed
substantial negative reliance on the plaintiff’s age in reaching their decision to fire
him.”) (reversing summary judgment granted to the defendants); Waldron v. SL
Indus., Inc., 56 F.3d 491, 502 (3d Cir. 1995) (reversing grant of summary
judgment to the defendants after finding that a supervisor’s statement five months
prior to termination that he wanted the plaintiff to lose weight because “it’ll make
you feel better [and i]t’ll make you look younger” was evidence of age-related bias
and could support a finding that age discrimination was more likely than not a

27

determinative factor in the supervisor’s decision to terminate the plaintiff’s
employment).
While we appreciate the vigor with which the defendants advance these
arguments, and acknowledged that they have amassed evidence to support their
position, given the countervailing evidence proffered by Keiser Candland’s
rejoinders simply define a disputed issue of fact for trial. In summary, the court
finds that Keiser has made out a prima facie case for discrimination under the
ADEA, and has pointed to sufficient evidence in the record that could support a
finding that the Borough’s stated justifications for terminating Keiser’s
employment were pretextual. Resolution of the discrimination claim, and the
Borough’s proffered reasons for firing Keiser, must therefore be resolved by trial.
B.

Retaliation

Keiser also brings a claim for retaliation, arguing that he was unlawfully
terminated for presenting his formal complaint to Candland on May 1, 2014,
within hours of the exercise of his right to protest what he alleged was ageist
discrimination. The ADEA prohibits employers from discriminating or retaliating
against employees for having made a charge, testifying, assisting, or participating
in an investigation, or other proceedings against the employer. 29 U.S.C. § 623(d).
To make out a prima facie case of ADEA retaliation, a plaintiff must show that (1)
he engaged in ADEA-protected activity; (2) the defendant took an adverse
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employment action against the plaintiff after the plaintiff engaged in protected
activity; and (3) a causal relationship exists between the plaintiff’s protected
activity and the defendant’s adverse employment action. Daniels v. Sch. Dist. of
Phila., 776 F.3d 181, 191 (3d Cir. 2015); Marra v. Phila. Hous. Auth., 497 F.3d
286, 300 (3d Cir. 2007); Fogleman v. Mercy Hosp., Inc., 283, F.3d 561, 567-68 (3d
Cir. 2002)). If the plaintiff makes these showings, then the burden of production of
evidence shifts to the employer to present a legitimate, non-retaliatory reason for
having taken the adverse action. Id. If the employer offers such a reason, the
burden returns to the plaintiff to demonstrate that “the employer’s proffered
explanation was false, and that retaliation was the real reason for the adverse
employment action.” Marra, 497 F.3d at 300. Although the burden of production
shifts back and forth between the parties, the plaintiff always carries the burden of
persuasion.

Daniels, 776 F.3d at 193 (citing Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000)).
In this case, the Borough seems to concede for purposes of summary
judgment that the plaintiff has made out a prima facie case of retaliation, since he
provided Candland with a formal complaint about alleged ageist comments and
criticisms following their meeting on May 1, 2014, hours before he was fired.
Nevertheless, the Borough argues that the plaintiff is simply attempting to
manufacture a retaliation claim where none exists, since according to the defendant
29

“[t]here were two outs in the ninth inning2 when the meeting on May 1 was to
commence. By the time Keiser handed over his complaint of age discrimination,
the meeting and the game had been called.” (Doc. 36, at 17.) In short, the
Borough argues that Keiser’s firing had nothing to do with his formal complaint, as
it was already planned, and therefore the temporal proximity is a red herring.
The Borough thus urges the court to discount the evidence of temporal
proximity at summary judgment, and instead to conclude on the disputed record
that (1) Keiser is unable to show that he would not have been terminated but for his
protected activity, and (2) that the Borough had already planned to terminate the
plaintiff’s employment and was not obligated to suspend that plan simply because
Keiser took the opportunity to make a complaint. (Doc. 36, at 17-20.)
Keiser maintains that he has come forward with more than sufficient
evidence to warrant a trial on his retaliation claim. First, Keiser points to cases
standing for the familiar proposition that temporal proximity between protected
activity and an adverse employment action that is “unusually suggestive” is
typically sufficient to create a genuine issue of material fact for a jury’s
consideration. See, e.g., LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d

This baseball metaphor is an elusive one for the defendants, since it also calls to
mind the dropped third strike rule, which permits a batter, in this case the plaintiff,
to advance if the catcher drops the ball on even the third called strike. In other
words, in life, litigation and baseball we are all well-advised to keep in mind that
“It ain’t over till it’s over.” Yogi Berra.
30
2

217, 232 (3d Cir. 2007); Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80
(3d Cir. 2000) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)).
These cases lend support to the argument that close proximity between protected
activity and adverse action is especially probative of causality, and the plaintiff
thus argues that because he was fired just hours after complaining to Candland, the
temporal proximity is highly suggestive of causation in this case.
We agree with Keiser that this evidence, taken in the light most favorable to
him as the non-moving party, raises material issues of disputed fact that need to be
heard and resolved by a jury. In many cases, temporal proximity of a matter of
days or a little more than a week may be sufficient to demonstrate causation, and
sometimes even a period of a few months. See Fasold v. Justice, 409 F.3d 178,
190 (3d Cir. 2005) (reversing grant of summary judgment on retaliation claim and
finding temporal proximity where employee’s grievance was denied less than three
months after he filed charges with the EEOC); Shellenberger v. Summit Bancorp,
Inc., 318 F.3d 183, 188 (3d Cir. 2003) (ten days); Jalil, 873 F.3d at 708 (reversing
grant of summary judgment where plaintiff was terminated two days after the
protected activity).

The temporal proximity in this case is, by any measure,

unusually close. The court cannot simply look past the fact that Candland fired
Keiser hours after Keiser formally complained. See LeBoon, 503 F.3d at 232
(“Where the temporal proximity between the protected activity and the adverse
31

action is unusually suggestive, it is sufficient alone to create an inference of
causality and defeat summary judgment.”).
Furthermore, courts have found that a plaintiff may also prove causation by
showing a pattern of antagonism coupled with timing to establish a link. Lauren
W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Farrell, 206
F.3d at 281. In this case, we have already noted that the record contains some
evidence that Candland had made comments that many employees, including
Keiser, had interpreted as evincing an age-based bias against older workers, and
this evidence coupled with the timing of the adverse action lends further support
for the court’s finding that the plaintiff has presented sufficient evidence in support
of his retaliation claim to get past summary judgment.
Finally, although the Borough attempts to cast Candland’s decision to fire
Keiser as one that had been made well in advance of his formal complaint, at best
the evidence on this score is equivocal. For his part, Candland testified that he had
decided “probably halfway through” his meeting with Keiser that he would fire
him, but concedes that there is no documentary or other evidence that could
substantiate this plan. (Doc. 38-4, N.T. 223.) Keiser casts further doubt on this
assertion by noting that he had not been disciplined at any point during the time
when he reported to Candland, including about the three reasons given by
Candland on May 1, 2014. Perhaps most probative, however, is other evidence
32

that would tend to contradict the assertion that there was a plan to fire Keiser
before he complained.
As noted above, the Borough Council met in Executive Session on April 28,
2014, just three days before Keiser was fired.

All of the Borough’s elected

officials were present at this meeting, along with Candland. (Doc. 38-8, N.T. 33.)
Two members of that Council, Linda Cecconello and Donald Grell, have been
deposed in this case. Each testified that Candland reported during this meeting that
there was no plan to terminate Keiser’s employment. The issue had arisen as part
of a discussion of Candland’s overall view of Keiser’s performance, and because
of a recent local story about a dispute between Keiser and his neighbor.
Cecconello testified unequivocally that Candland told her and the others that there
was no plan to terminate Keiser: “We were told [by Candland] that Mike’s job
was not in jeopardy . . . That was a direct quote.” (Doc. 38-9, N.T. 71-74.) Grell
testified similarly: “Matt was going to be meeting with Mike and nothing was
going to happen and about two days later we found out that Mike was terminated.”
(Doc. 38-8, N.T. 33.)
Moreover, there is evidence that would show that Candland had planned to
meet with Keiser on May 2, 2014, to address the issue between Keiser and his
neighbor that had garnered local media attention. (Doc. 38-5, Ex. 19.) Keiser
argues that this evidence provides further reason to doubt the Borough’s position in
33

this litigation that there were “two outs in the ninth” by the time Keiser filed his
formal complaint, since it might strike a factfinder as inconsistent for a supervisor
to schedule a meeting with an employee to be held the day after he was fired if a
plan had actually been in place to terminate his employment on an earlier date.
As the foregoing demonstrates, Keiser’s retaliation claim, like his
discrimination claim, is not capable of being resolved at summary judgment, as
there remain numerous disputed issues of fact that are material to each claim.
V.

CONCLUSION
Accordingly, for the foregoing reasons, the defendant’s motion for summary

judgment will be DENIED. An Order consistent with this Memorandum will issue
separately.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: February 24, 2017

34