Case No.: 13-11358 - AARP · Case No.: 13-11358 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JERRELL P. SQUYRES, on behalf of himself, Plaintiff-Appellant, v. THE HEICO COMPANIES,

Case No.: 13-11358

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JERRELL P. SQUYRES, on behalf of himself,

Plaintiff-Appellant,

v.

THE HEICO COMPANIES, L.L.C.; S-LINE CORPORATION,

L.L.C.; ANCRA INTERNATIONAL, L.L.C.,

Defendants-Appellees.

On Appeal from the U.S. District Court for the

Northern District of Texas

The Honorable Jane J. Boyle (3:12-cv-02348-B)

Daniel B. Kohrman*

Thomas W. Osborne

AARP Foundation Litigation

Melvin Radowitz

AARP

601 E St., NW

Washington, DC 20049

[email protected]

202-434-2060 (p)

202-434-6424 (f)

*Counsel of Record

Counsel for Amicus Curiae AARP

Case: 13-11358 Document: 00512575065 Page: 1 Date Filed: 03/27/2014

i

Certificate of Interested Persons

The undersigned counsel of record certifies that the following listed persons

and entities have an interest in the outcome of this case:

1. Plaintiff Jerrell Squyres – Appellant

2. Hal K. Gillespie, GILLESPIE SANFORD LLP, Counsel for Jerrell Squyres.

3. Yona Rozen, Law Offices of Yona Rozen – Counsel for Jerrell Squyres

4. Defendants The Heico Companies, LLC, S-Line, LLC and Ancra

International, LLC – Appellees

5. Linda M. Doyle and Kirk Watkins, MCDERMOTT WILL & EMERY LLP

– Counsel for Appellees

6. Amy B. Boyea, EDISON, MCDOWELL & HETHERINGTON LLP –

Counsel for Appellees

7. AIG Insurance Company – Primary Insurer for Appellees

8. AARP – Amicus Curiae

9. Daniel B. Kohrman - Counsel for Amicus Curiae AARP

10. Melvin Radowitz – Counsel for Amicus Curiae AARP


ii

Corporate Disclosure Statement

The Internal Revenue Service has determined that AARP is organized and

operated exclusively for the promotion of social welfare pursuant to Section

501(c)(4) (1993) of the Internal Revenue Code and is exempt from income tax.

AARP is also organized and operated as a non-profit corporation pursuant to Title

29 of Chapter 6 of the District of Columbia Code 1951.

Other legal entities related to AARP include AARP Foundation, AARP

Services, Inc., Legal Counsel for the Elderly, Experience Corps, d/b/a, AARP

Experience Corps, AARP Insurance Plan, also known as the AARP Health

Trust, and AARP Financial.

AARP has no parent corporation, nor has it issued shares or securities.


iii

Table of Contents

CERTIFICATE OF INTERESTED PERSONS .......................................................i

CORPORATE DISCLOSURE STATEMENT ...................................................... ii

TABLE OF AUTHORITIES ................................................................................... v

INTEREST OF AMICUS CURIAE ........................................................................ 1

SUMMARY OF THE ARGUMENT ...................................................................... 2

ARGUMENT ........................................................................................................... 3

I. Introduction .................................................................................................... 3

II. By Violating its Duty at Summary Judgment the District

Court Usurped the Role of the Jury ............................................................... 5

A. The effect of the Supreme Court’s recently

modified 2009 Gross decision on plaintiffs’

summary judgment burden in an ADEA pretext

case, if any, is to somewhat lighten that burden ................................. 6

B. The court violated its duty of neutrality by viewing

the evidence in favor of defendants instead of in

the light most favorable to plaintiff, weighing the

evidence, and making credibility determinations in

favor of defendants ............................................................................ 10

III. The Shifting Reasons Offered by the Defendants for the

Adverse Employment Action Were Sufficiently

Inconsistent to Create a Genuine Issue of Material Fact

Regarding Whether They Were a Pretext for

Discrimination ............................................................................................. 15

CONCLUSION ...................................................................................................... 19

CERTIFICATE OF SERVICE .............................................................................. 20


iv

CERTIFICATE OF COMPLIANCE ..................................................................... 21


v

Table of Authorities

Cases

Abraham v. Raso, 183 F.3d 279 (3rd Cir. 1999) ................................................... 13

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................5, 6, 10

Burrage v. United States, 134 S. Ct. 881 (2014) ........................................... passim

Burrell v. Pepper, 482 F.3d 408 (5th Cir. 2007) ................................ 16, 17, 18, 19

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ........................................................ 5

Chambers v. Sodexo, Inc., 510 Fed. Appx. 336 (5th Cir. 2013) ............................ 10

Crawford v. Formosa Plastics Corp., 234 F.3d 899 (5th Cir. 2000) ...................... 5

Evans v. City of Bishop, 238 F.3d 586 (5th Cir. 2000) .......................................... 11

Fierros v. Tex. Dep't of Health, 274 F.3d 187, 190 (5th Cir. 2001) ...................... 11

Gee v. Principi, 289 F.3d 342 (5th Cir. 2002) .................................... 16, 17, 18, 19

Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) ........................ passim

Jerge v. City of Hemphill, 80 Fed. Appx. 347 (5th Cir. 2003) .............................. 11

Johnson v. Del. County Juvenile Det. Ctr.,

2013 U.S. App. LEXIS 23743 (3d Cir. 2013) .................................................... 8

Katseanes v. Time Warner Cable, Inc.,

511 Fed. Appx. 340 (5th Cir. 2013) .................................................................... 8

Leonard v. Dixie Well Service & Supply, Inc.,

828 F.2d 291 (5th Cir. 1987) ................................................................12, 14, 19

Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..................... 5


vi

Parris v. Wyndham Vacations Resorts, Inc.,

2013 U.S. Dist. LEXIS 150474 (D. Haw. 2013) ................................................ 9

Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co.,

336 F.3d 410 (5th Cir. 2003) ............................................................................ 10

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000) ................... 6, 10

Russell v. McKinney Hosp. Venture, 235 F.3d 219 (5th Cir. 2000) ...................... 12

Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893 (5th Cir. 2002) .......................... 8

SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201 (10th Cir. 2009) ......................... 15

Shelley v. Geren, 666 F.3d 599 (9th Cir. 2012) ....................................................... 9

Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009) ........................................ 8

Squyres v. Heico Cos.,

2013 U.S. Dist. LEXIS 162080 (N.D. Tx. Nov. 13, 2013) ...................... passim

Univ.of Tex. Southwestern Med. Ctr. v. Nassar,

133 S. Ct. 2517 (2013) .................................................................................... 7, 9

Vaughan v. Carlock Nissan of Tupelo,

2014 U.S. App. LEXIS 2131 (5th Cir. 2014) ............................................... 6, 13

Statutes, Rules and Regulations

Age Discrimination in Employment Act

29 U.S.C. § 623(a)(1) .......................................................................................... 7

Fed. R. Civ. Proc. 56(a) ........................................................................................... 5

Fed. R. Civ. Proc. 56(c) ........................................................................................... 5


vii

Miscellaneous

Defendants’ Reply Brief In Further Support of Their

Motion for Summary Judgment ........................................................................ 14

Frediani Aff., July 29, 2013, ECF No. 53-2 ....................................... 11, 14, 16, 18

Frediani Dep. 158, Aug. 26, 2013, ECF No. 66-3 ................................................. 18


1

Interest of Amicus Curiae

AARP is a nonprofit, nonpartisan organization with a membership that helps

people turn their goals and dreams into real possibilities, strengthens communities

and fights for the issues that matter most to families such as healthcare,

employment and income security, retirement planning, affordable utilities and

protection from financial abuse. AARP is dedicated to addressing the needs and

interests of people age fifty and older, including older workers, and strives through

legal and legislative advocacy to preserve the means to enforce their rights. AARP

has a long history of advocating for vigorous enforcement of the Age

Discrimination in Employment Act (ADEA) as well as state laws prohibiting

employment discrimination, such as the Texas Commission on Human Rights Act

(TCHRA).

In this case AARP’s concern is that by improperly granting summary

judgment for defendants the district court decision undermines the ability of

employees, such as Squyres, to vindicate their right to be free of workplace age

discrimination under both the ADEA and the TCHRA. AARP submits this brief

amicus curiae to assist this Court in reviewing the district court decision granting

summary judgment for defendants.


2

Summary of the Argument

While the district court correctly stated the difference between the proof

standards under the ADEA and the TCHRA, it nevertheless failed to evaluate the

evidence properly under either standard. The district court concluded incorrectly

not only that Squyres’ evidence did not present a genuine issue of material fact

regarding whether age was a but-for cause of plaintiff’s termination under the

ADEA, but also that it did not even raise a question of material fact under the

much lighter motivating factor standard applicable to the TCHRA. This erroneous

conclusion was based on the district court’s violation of its three-fold duty of

impartiality when ruling on a summary judgment motion. Moreover, the Supreme

Court’s recent decision in Burrage v. United States, 134 S. Ct. 881 (2014),

modifying its 2009 decision in Gross v. FBL Financial Services, Inc., 557 U.S. 167

(2009) serves to lighten plaintiff’s burden at summary judgment.

First, the district court failed to view the evidence in the light most favorable

to plaintiff, the nonmoving party below. Indeed, the district court did exactly the

opposite, viewing the evidence in favor of defendants. Conceding that the reasons

stated by defendants for terminating plaintiff “do conflict,” but only “slightly,” and

not “to any great degree,” the district court invaded the province of the jury by


3

concluding that those reasons were “not necessarily contradictory.” Squyres v.

Heico Cos., 2013 U.S. Dist. LEXIS 162080, at *27-*28 (N.D. Tx. Nov. 13, 2013).

Second, the court below weighed the evidence by determining that certain

statements of the decisionmaker were “more appropriately taken” as supporting

defendants’ version of the facts. Id. at *28.

Third, based on its evaluation of the weight of the evidence, the district court

drew inferences in favor of defendants and determined that defendants’ version of

the facts was more credible than plaintiff’s.

The decision below should be reversed and the case allowed to go to trial

where a jury can exercise properly the functions usurped by the district court in

this case.

Argument

I. Introduction

Instead of viewing the evidence in the light most favorable to Plaintiff

Squyres, the district court weighed the evidence and concluded inexplicably that

the “legitimate reasons” cited by defendants in support of their decision to

terminate Squyres by not renewing his original employment agreement also

supported their offer to hire plaintiff as an independent contractor. Id. at *26-*27:

“Indeed, the reasons that Frediani offers for his decision not to renew Squyres’

Agreement apply equally to his decision to offer Squyres a position ….” Id. at *31


4

n. 2. Yet, according to the district court, despite this glaring contradiction there

was insufficient evidence to allow a jury to consider whether these reasons were a

pretext for age discrimination.

The folly of the district court’s conclusion is self-evident. How is it possible

that an employer’s reliance on the same reasons to justify its decisions to both fire

and at the same time hire the same older worker does not raise an issue of pretext?

By failing to recognize the absurdity of defendants’ position and granting their

summary judgment motion the district court allowed the defendants to get away

with this semantic sleight of hand. This Court should not condone such

gamesmanship.

Moreover, despite the conflicting and contradictory statements by the

decisionmaker about the reasons underlying his actions on behalf of defendants

against plaintiff, the district court failed to analyze those statements under the

separate standards applicable to the ADEA and TCHRA. While correctly

identifying the different standards, the district court discussed the evidence as if

only the single “but-for” ADEA standard were at issue. It never discussed

specifically how or why the evidence failed to satisfy the TCHRA standard, instead

simply stating its bald conclusion near the end of the opinion that in addition to

being insufficient to satisfy the but-for standard, the evidence was also insufficient

to raise a genuine issue as to whether age was a motivating factor. Thus, there is


5

no basis upon which this Court can review the validity of the district court’s

reasons for reaching this erroneous conclusion.

II. By violating its duty at summary judgment the District Court usurped

the role of the jury.

Rule 56 (a) of the Federal Rules of Civil Procedure provides that “[t]he court

shall grant summary judgment 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.”

In its 1986 summary judgment “trilogy” of Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),

and Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court defined the

standards applicable to Rule 56. Thus, summary judgment is proper only "if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law." Id. at

322, quoting then-effective Rule 56 (c). In Matsushita, 475 U.S. at 588, the Court

declared that “the inferences to be drawn from the underlying facts . . . must be

viewed in the light most favorable to the party opposing the motion."

This Court has held that “[t]he ultimate determination, in every case, is

whether, viewing all of the evidence in a light most favorable to the plaintiff, a

reasonable factfinder could infer discrimination.” Crawford v. Formosa Plastics

Corp., 234 F.3d 899, 902 (5th Cir. 2000). Moreover, “at the summary judgment


6

stage the judge's function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249. "Credibility determinations, the weighing of evidence,

and the drawing of legitimate inferences from the facts are jury functions, not those

of a judge." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51

(2000); Vaughan v. Carlock Nissan of Tupelo, 2014 U.S. App. LEXIS 2131, 4-5

(5th Cir. 2014).

In this case the district court failed to fulfill its duty of impartiality at

summary judgment. By failing to view the evidence in the light most favorable to

plaintiff, by drawing inferences in favor of defendants, by weighing the evidence,

and by determining that defendants’ version of the facts was more credible than

that of plaintiff, the district court invaded the province of the jury and usurped its

function.

A. The effect of the Supreme Court’s recent clarification of its 2009

Gross decision on plaintiff’s’ summary judgment burden in an

ADEA pretext case, if any, is to somewhat lighten that burden.

Citing Gross, 557 U.S. at 176, the district court declared that under the

ADEA “[u]ltimately, a plaintiff has the burden of persuasion to establish that age

was the but-for case [sic] of the employer’s adverse action.” Squyres at *10

[emphasis supplied]. However, in light of the Supreme Court’s recent decision in

Burrage, explaining the meaning of Gross, the district court’s construction of the


7

Gross decision is incorrect. While Burrage was a criminal case, the Court

construed the meaning of “but-for” across the entire body of the law to mean that

there can be more than one but-for cause. In Burrage, the Court quoted Gross, but

substituted a bracketed “[a]” for the word “the” preceding the expression “’but-for’

cause.” Id. at 889. Thus:

Given the ordinary meaning of the word “because,” we held that [42

U.S.C.] §2000e-3(a) “require[s] proof that the desire to retaliate was

[a] but-for cause of the challenged employment action.” “[Univ.of

Tex. Southwestern Med. Ctr. v.] Nassar, supra, at ____, 133 S. Ct.

2517, 186 L. Ed. 2d 503 at 514 (2013). The same result obtained in an

earlier case interpreting a provision in the Age Discrimination in

Employment Act that makes it “unlawful for an employer . . . 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) (emphasis added). Relying on dictionary definitions of

“[t]he words ‘because of’” — which resemble the definition of

“results from” recited above — we held that “[t]o establish a

disparate-treatment claim under the plain language of [§623(a)(1)] . . .

a plaintiff must prove that age was [a] ‘but for’ cause of the

employer’s adverse decision.” Gross v. FBL Financial Services, Inc.,

557 U. S. 167, 176, 129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009).

Id. at 888-889.

Therefore, the Supreme Court in Burrage rejected any notion that “but-for”

requires a showing that an impermissible motive was the sole cause of the

challenged action. In light of Burrage, 134 S. Ct. at 889, the plaintiff’s ultimate


8

burden in an ADEA case is to show not that age was “the reason” for the

employer’s adverse action, but only that age was “a reason” for it.1

Gross further held the ADEA does not permit mixed-motives claims, in

which the burden of persuasion shifts to defendant if the plaintiff presents direct

evidence of discrimination.2 See, Smith v. City of Allentown, 589 F.3d 684, 691

(3d Cir. 2009) ("Gross stands for the proposition that it is improper to shift the

burden of persuasion to the defendant in an age discrimination case.”). Indeed, the

Third Circuit has held that Gross is inapplicable to ADEA pretext cases:

The Detention Center's argument that Johnson fails to show that age

was the “but for” cause of his termination pursuant to Gross v. FBL

Financial Services, Inc. is misplaced. In Gross, the issue was whether

the burden ever shifts to the party defending a mixed-motive

discrimination claim under the ADEA. Here, Johnson's claims of

discrimination are based on a pretext theory, not mixed-motive and,

thus, Gross is inapplicable.”

Johnson v. Del. County Juvenile Det. Ctr., 2013 U.S. App. LEXIS 23743 at

*10, (3d Cir. 2013), [internal quotation marks and citations omitted.]

1 Thus, Katseanes v. Time Warner Cable, Inc., 511 Fed. Appx. 340, 344 (5th Cir.

2013), which, quoting Gross, held that “age must be ‘the reason’ that the employer

decided to act” is no longer good law. 2 Additionally, in Katseanes at 344, this Court, quoting Sandstad v. CB Richard

Ellis, Inc., 309 F.3d 893, 896 (5th Cir. 2002), incorrectly declared that "[i]f the

plaintiff produces direct evidence that discriminatory animus played a role in the

decision at issue, the burden of persuasion shifts to the defendant, who must prove

that it would have taken the same action regardless of discriminatory animus."


9

Assuming, arguendo, that Gross as clarified by Burrage does apply here to

somewhat lighten plaintiff’s ultimate burden, it should concomitantly lighten his

burden at summary judgment.

On the other hand, it is at least questionable whether Gross (as clarified by

Burrage) has any bearing on plaintiff’s summary judgment burden in ADEA cases.

See, e.g., Shelley v. Geren, 666 F.3d 599, 607 (9th Cir. 2012) ("Because Gross

involved a case that had already progressed to trial, it did not address the

evidentiary framework applicable to a motion for summary judgment."). Further,

“Nassar, 133 S. Ct. 2517 (2013) does no more than apply Gross to Title VII

retaliation claims, and nothing in that opinion purports to go beyond Gross or to

increase the evidence required to defeat summary judgment.” Parris v. Wyndham

Vacations Resorts, Inc., 2013 U.S. Dist. LEXIS 150474, 25-26 (D. Haw. 2013).

Thus, if the district court’s invocation of Gross has any meaning for this summary

judgment case, it should be to relieve plaintiff from the post-Gross/pre-Burrage

requirement to raise a genuine issue of fact regarding whether age was the but-for

cause of appellees’ adverse actions. Instead, pursuant to Burrage, plaintiff need

satisfy only the lighter burden of raising a genuine issue of fact regarding whether

his age was a but-for cause of defendants’ actions.


10

B. The court violated its duty of neutrality by viewing the evidence in

favor of defendants instead of in the light most favorable to

plaintiff, weighing the evidence, and making credibility

determinations in favor of defendants.

At the summary judgment stage the judge's sole function is “to determine

whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. "Credibility

determinations, the weighing of evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge." Reeves, 530 U.S. at 150-

51; Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412

(5th Cir. 2003) (At summary judgment, the court "must review all of the evidence

in the record, but make no credibility determinations or weigh any evidence.");

Chambers v. Sodexo, Inc., 510 Fed. Appx. 336 (5th Cir. 2013) (same). Yet in this

case the district court abandoned its proper role at summary judgment by weighing

the evidence and making credibility determinations. Furthermore, the district court

not only did not view the evidence in the light most favorable to Plaintiff Squyres,

the nonmoving party, but also viewed the evidence in favor of defendants and drew

inferences in their favor.

It is crystal clear that the district court engaged in weighing the evidence.

The most blatant example is its rejection of Squyres’ argument that Frediani’s

different statements in his deposition and affidavit, which, the court conceded “do

conflict slightly,” Squyres at *27, are sufficient to create a genuine issue of

material fact regarding pretext. In his deposition Frediani stated "[i]f we were


11

disappointed at something [Squyres] was doing, I certainly wouldn't have made the

effort [to craft an offer for a new position]." Id. In his affidavit in support of

defendants’ motion for summary judgment he stated four reasons that he “was

unhappy with Squyres' job performance.” Frediani Aff. para. 15, July 29, 2013,

ECF No. 53-2. The district court found that these statements were “not necessarily

contradictory.” Squyres at *28. In making a summary judgment determination,

however, "doubts are to be resolved in favor of the nonmoving party, and any

reasonable inferences are to be drawn in favor of that party." Fierros v. Tex. Dep't

of Health, 274 F.3d 187, 190 (5th Cir. 2001), quoting Evans v. City of Bishop, 238

F.3d 586, 589 (5th Cir. 2000). Here, however, instead of viewing this

contradiction to the benefit of the plaintiff, the district court resolved the doubt in

favor of defendants, the moving party below.

Additionally, the court concluded that these statements are “more

appropriately taken,” Squyres at *28, as indicating that while Frediani did not have

reasons to “affirmatively terminate” Squyres, he did have reasons to end Squyres

employment agreement. Id. This Court has held, however, that a district court

“may not draw negative inferences, let alone inferences based on speculation,

against a nonmoving party.” Jerge v. City of Hemphill, 80 Fed. Appx. 347, 352

(5th Cir. 2003). The district court’s conclusion that Frediani’s statements are

“more appropriately taken” only one way, i.e., in the manner asserted by


12

defendants, when it is clear that there is at least one other, credible interpretation of

those statements, such as that argued by plaintiff, manifestly is weighing the

evidence. Indeed, how precisely Frediani’s statements are to be “taken” is a

question appropriate for resolution only by a jury. “A judge assessing the

‘persuasiveness’ of evidence presented on a motion for summary judgment may

discount such evidence as unspecific or immaterial, but not as unbelievable.”

Leonard v. Dixie Well Service & Supply, Inc., 828 F.2d 291, 294 (5th Cir. 1987).

Moreover, the court exacerbated its invasion of the province of the jury by

concluding that Frediani’s above-quoted “slightly” conflicting statements “do not

conflict to any great degree.” Squyres at *27. Whether and how much witness

statements conflict are jury questions. See, Russell v. McKinney Hosp. Venture,

235 F.3d 219, 225 (5th Cir. 2000) (It is the province of the jury to choose among

conflicting versions and make credibility determinations).

A further manifestation of weighing the evidence is the district court’s

conclusion that Frediani’s statement in his deposition that "[i]f we were

disappointed at something [Squyres] was doing, I certainly wouldn't have made the

effort [to craft an offer for a new position]," Squyres at *27, “does not necessarily

indicate that Frediani was in every respect pleased with Squyres' performance,

however, and it is therefore not necessarily contradictory when Frediani states in

his affidavit that he personally had misgiving about Squyres' performance.” Id. at


13

*28 [emphasis supplied]. Like the question of what these statements are “more

appropriately taken” to mean, the determination of what a statement necessarily

indicates and whether it necessarily contradicts another statement clearly are jury

questions. See, Abraham v. Raso, 183 F.3d 279, 287 (3rd Cir. 1999) (“[A] court

should not prevent a case from reaching a jury simply because the court favors one

of several reasonable views of the evidence ... [t]hus, while the nonmoving party

must present enough evidence to demonstrate a dispute is genuine, all inferences in

interpreting the evidence presented by the parties should be drawn in favor of the

nonmoving party.”)

The sophistry inherent in the court’s resolution of what are quintessentially

jury questions is also indisputable evidence that the court determined that

defendants’ version of the facts was more credible than plaintiff’s. “Ultimately, of

course, it is up to the trier of fact to decide whose version of events should be

believed.” Vaughan, 2014 U.S. App. LEXIS at *21. Defendants argued that

“Frediani did not just choose to terminate Squyres. Rather, he decided not to

renew Squyres’ Employment Agreement and to instead offer him a position more

consistent with the value he added to the company. Only after Squyres failed to

accept the new position by the appropriate deadline did Frediani make the decision

that ended Squyres’ employment.” Squyres at *17 [emphasis in original]. At first,

the district court seemed to reject this argument: “Defendants' assertion that the


14

decision to allow Squyres' Employment Agreement to expire does not equate to a

‘termination’ is not convincing. The effect of Defendants' decision was to

materially alter Squyres' employment status as well as his pay and job

responsibilities-certainly enough to constitute an adverse employment action.” Id.

at *13. Squyres argued that he was effectively terminated when his Employment

Agreement expired because defendants chose not to allow him to continue as an at-

will employee like all other employees of defendants. Nevertheless, the district

court subsequently concluded that Frediani’s statements “are more appropriately

taken as indicating that Frediani did not have reasons that drove him to

affirmatively terminate Squyres, even though he did have reasons to end Squyres'

Employment Agreement and offer him a new position.” Id. at *28.

Based on the evidence presented, however, a jury could conclude that since

Frediani never intended to renew the Employment Agreement when its initial term

expired, Defendants’ Reply Brief In Further Support of Their Motion for

Summary Judgment at 1, Frediani Aff. para. 14, Frediani may in fact have

expected Squyres to reject the offer of a lesser position and a nearly two-thirds

reduction in salary. A jury could further conclude that it was only after Squyres

did not timely accept or reject the offer that Frediani decided to retract the offer

and terminate Squyres and contemporaneously invented the reasons for doing so.

See Leonard, 828 F.2d at 294, in which this Court held that “the district judge


15

erred in basing his decision granting summary judgment for defendant on finding

[defendant’s] evidence inherently more ‘reliable’ or ‘accurate’ than [plaintiff’s].”

See also, SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1218 (10th Cir. 2009)

(“If the evidence presented on a dispositive issue is subject to conflicting,

reasonable interpretations, summary judgment is improper.”).

III. The shifting reasons offered by the defendants for the adverse

employment action were sufficiently inconsistent to create a genuine

issue of material fact regarding whether they were a pretext for

discrimination.

The district court found initially that Frediani stated four reasons for his

decisions in his affidavit: He was unhappy with Squyres’ lack of success as a

salesperson; Squyres’ conduct with regard to business expenses; Squyres’

resistance to reporting to others; and the excessive amount of time Squyres spent at

unproductive social events. Squyres at *17. The court also found that Frediani

wanted to allow Squyres’ Employment Agreement to expire to reduce costs. Id.

Further along in its opinion the district court found that “Frediani states in his

affidavit that he decided not to renew Squyres' Employment Agreement because

(1) Squyres' expense account use was excessive and violative of company policy,

(2) Squyres resisted reporting his hours and activities, (3) Frediani wanted to

reduce costs by reducing Squyres' salary, and (4) Squyres had not provided the

expected value to the company.” Id. at *20 [emphasis supplied].


16

The problem with the court’s pretext analysis is that in his affidavit Frediani

did not say that that he decided to not renew Squyres Employment Agreement for

the above-quoted reasons. He said only that these were the reasons he “was

unhappy with Squyres’ job performance.” Frediani Aff. para. 15. He also said:

“There was never any intent to renew the Employment Agreement between

Squyres and S-Line.” Id. at para. 14. If Frediani never had any intent to renew the

Agreement, then both the court’s conclusion that “based on a number of legitimate

reasons, Frediani chose not to renew Squyres’ Agreement,” Squyres at *26, and the

reasons themselves must be false, just as Squyres claimed.

Moreover, faced with defendants’ argument in the alternative that they did

not terminate plaintiff, but even if they did terminate him the reasons provided by

Frediani were sufficient to satisfy their burden at summary judgment, plaintiff

argued that those reasons were shifting and inconsistent and, thus, sufficient to

raise a genuine issue of material fact regarding whether they were a pretext for age

discrimination. The district court, however, rejected plaintiff’s argument based on

its flawed analysis of Burrell v. Pepper, 482 F.3d 408, 415 (5th Cir. 2007), and

Gee v. Principi, 289 F.3d 342, 347-48 (5th Cir. 2002), concluding incorrectly that

defendants’ reasons “are not [as] inconsistent or shifting as the reasons offered by

the defendant employers in Burrell and Gee.” Squyres at *24. Properly analyzed,

however, both Burrell and Gee support plaintiff’s position.


17

In Burrell, the defendant employer told the EEOC as well as this Court that

the plaintiff had been denied promotion because of his lack of “purchasing

experience,” while stating to the district court that the plaintiff’s termination was

the result of a lack of “bottling experience.” Burrell, 482 F.3d at 413. Finding that

the defendant’s rationale for its employment decision was “suspect because it has

not remained the same,”Id. at 415, this Court held that these statements were

sufficiently inconsistent to create a genuine issue of material fact on the issue of

pretext. Similarly, in Gee, Gibbs, the deciding official behind the adverse

employment action, made a series of contradictory statements regarding how the

decision was made to not appoint the plaintiff to a new position and the role that

others who may have had retaliatory intent against Gee may have played in that

decision. Specifically, Gibbs stated that he had not participated in a meeting

relating to the position, and then later admitted that he had in fact attended such a

meeting. He initially stated that he was unable to recall the substance of comments

about the employee during the meeting, but then later testified that everyone made

comments during the meeting and that they were generally negative. Finally, he

also stated that others were not involved in the selection process and then later

admitted that he had consulted with several other individuals. As a result of these

contradictory statements, this Court held that there was an issue of material fact as

to the reasoning behind the decision that precluded summary judgment.


18

In this case, Frediani directly contradicted himself by first stating in his

deposition "[i]f we were disappointed at something [Squyres] was doing, I

certainly wouldn't have made the effort [to craft an offer for a new position],"

Squyres at *27. Subsequently in his affidavit in support of defendants’ motion for

summary judgment he stated that he “was unhappy with Squyres’ job

performance.” Frediani Aff. para. 15. As in Burrell and Gee, these statements

were directly relevant to the question why Frediani made the decision to take an

adverse employment action against Squyres. And even though it was his decision

to withdraw the offer of an independent contractor position to Squyres and to let

the Agreement expire, he stated in his deposition that he did not make a decision to

terminate Squyres. Frediani Dep. 158, Aug. 26, 2013, ECF No. 66-3, The plain

meaning of these statements is directly contradictory. Nevertheless, the district

court concluded that the statements “are not so inconsistent as to raise a question of

fact as to” pretext. Squyres at *28. Even more inexplicably, the district court

concluded that defendants’ reasons “have remained consistent throughout the

case.” Id. at *26.

Moreover, even if the district court’s two different summaries of the reasons for

Frediani’s actions set forth in his affidavit can be reconciled because some reasons

are merely “stated very generally,” Id. at *20, the defendants provided Squyres

with another, different reason for his termination. In his email withdrawing the


19

offer to hire Squyres as an independent contractor Frediani stated that the company

“is unable to provide you with an employment agreement that meets your needs.”

Id. at *24. Thus, contrary to the district court’s conclusion, Frediani’s different

statements are at least as contradictory as those in Burrell and Gee that this Court

held were sufficient to justify denial of summary judgment for the employer.

Conclusion

“The party opposing a motion for summary judgment, with evidence competent

under Rule 56, is to be believed; it is for the jury at trial, not for the judge on a

pretrial motion, to decide whose evidence is more credible.” Leonard, 828 F.2d at

294. Since the district court violated this rule in the multiple ways described in

this brief, the decision below should be reversed and the case should be remanded

to the district court for further proceedings.

March 27, 2014 Respectfully submitted,

/s/Daniel B. Kohrman

Daniel B. Kohrman*

Thomas W. Osborne

AARP Foundation Litigation

Melvin Radowitz

AARP

601 E St., NW

Washington, DC 20049

[email protected]

202-434-2060 (p)

202-434-6424 (f)

*Counsel of Record


20

Certificate of Service

I hereby certify that on March 27, 2014, I electronically filed the foregoing

Brief with the Clerk of the Court for the United States Court of Appeals for the

Fifth Circuit by using the appellate CM/ECF system, which caused a copy to be

delivered to all counsel of record who are registered with the CM/ECF system.

/s/Daniel B. Kohrman

Daniel B. Kohrman


21

Certificate of Compliance

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 4,523 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements in Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because it uses

a proportionally spaced typeface using Microsoft Word in Times New Roman, 14-

point font for text and footnotes.

3. This brief complies with the privacy-redaction requirement of Fifth

Circuit Rule 25.2.13. Personal identifiers are redacted in accordance with rules.

4. This brief complies with the electronic submission requirement of

Fifth Circuit Rule 25.2.1 because it is an exact copy of the paper document.

Dated: March 27, 2014 /s/Daniel B. Kohrman

Daniel B. Kohrman*


Documents

Case No.: 13-11358 - AARP · Case No.: 13-11358 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT JERRELL P. SQUYRES, on behalf of himself, Plaintiff-Appellant, v. THE HEICO COMPANIES,