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Despite finding that a lower court failed to recognize that an age discrimination plaintiff had “direct evidence” — an alleged quote from her boss that he wanted to fire her and hire a “young chippie” — the 3rd U.S. Circuit Court of Appeals has nonetheless held that the case was properly dismissed due to “overwhelming” evidence of the plaintiff’s misconduct. In Glanzman v. Metropolitan Management Corp., a unanimous three-judge panel found that since the remark was allegedly uttered by someone involved in the decision to fire the plaintiff, the lower court should have employed the Price Waterhouse mixed-motives test. But even if the proper test had been applied, the appellate court said, Julia Ann Glanzman’s case still would have failed to survive summary judgment because Metropolitan “succeeded in presenting overwhelming evidence of Glanzman’s misconduct, and � a reasonable jury could only conclude that Metropolitan would have fired Glanzman even if they had not considered her age.” In a related appeal decided in the same opinion, the 3rd Circuit also refused to revive a retaliation claim brought by a Metropolitan employee who said he was fired after the company learned that he was one of Glanzman’s witnesses. The court held that U.S. District Judge J. Curtis Joyner correctly dismissed Joseph Fries’ claim because he failed to muster any evidence to overcome his own admission that he was fired because he refused to write a letter of apology for his wrongdoing, and not because of any “protected activity.” According to court papers, Glanzman was the manager of Doylestown Meadows, a 150-unit apartment complex in Bucks County, Pa. She had managed the complex for a previous owner and was hired, at the age of 60, to stay on as the manager when Metropolitan acquired the complex in 1997. In her age discrimination claim, Glanzman pointed to a series of remarks that, she said, showed that age was a factor in the company’s decision to fire her, including an alleged remark by her direct supervisor, Glenn Fagan, that he wanted to fire her and “replace her with a young chippie” with a larger bust. But Metropolitan insisted in its brief that its reasons for firing Glanzman were her long history of misconduct, including an attempted theft of a dishwasher. Metropolitan said Glanzman had a history of accepting, but not reporting, personal collect telephone calls with charges of more than $900. Although Glanzman claimed that the calls were from a sick aunt, Metropolitan said it discovered that they were from her boyfriend, who was serving time in prison. She was allowed to keep her job after she made arrangements to reimburse the company for the calls. A second instance of misconduct was also tolerated, Metropolitan said, when Glanzman was allowed to reimburse the company for the cost of allowing her granddaughter to access the Internet from her office computer. Metropolitan also said it had reason to believe that Glanzman, who owned rental property herself, used two Metropolitan employees — Fries and Phil Rittenhouse — to perform work at her property during hours when they were being paid by Metropolitan. Finally, Metropolitan said it had reason to believe Glanzman was attempting to steal a dishwasher to place in one of her properties. The defense brief said Glanzman originally claimed that a tenant in Doylestown Meadows had requested the dishwasher, but the tenant stated that she did not request it and did not want it because she only used her existing dishwasher to store bread and cereal. When confronted with this information, Metropolitan alleged that Glanzman changed her story and said that the tenant’s daughter had requested the dishwasher, but that story proved to be untrue as well. On appeal, Glanzman’s lawyer, Steven A. Cotlar, argued that Joyner should have allowed the case to go to trial because Glanzman had direct evidence of age discrimination. In addition to the remark about hiring a “young chippie,” Cotlar’s brief noted that Fagan had once asked Glanzman if she had told a resident that she was 63 years old, and that another management employee asked about her retirement plans. Now the 3rd Circuit has ruled that Joyner correctly rejected the second and third remarks as direct evidence, but found that he should have treated the alleged “young chippie” remark as direct evidence. “We are troubled by the district court’s determination that Glenn Fagan’s remark ‘does not in and of itself reflect that the reason for Ms. Glanzman’s termination was to replace her with a’ younger woman,” Senior 3rd Circuit Judge Ruggero J. Aldisert wrote. Aldisert, who was joined by 3rd Circuit Chief Judge Anthony J. Scirica and 3rd Circuit Judge D. Michael Fisher, found that Fagan’s alleged remark “is fraught with permissible inferences that he desired to fire Ms. Glanzman at least in part because of her age.” A jury, Aldisert said, could view the remark as “an admission that at least part of the actual reason for the employment decision was a desire to hire someone younger and more endowed.” Metropolitan’s lawyer, Timothy A. Gallogly of Sirlin Gallogly & Lesser, argued that Fagan’s remark was properly discounted by Joyner since the evidence showed that the decision to fire Glanzman was made entirely by top management employees. Aldisert disagreed, finding that since Fagan was the vice president of property management for Metropolitan and Glanzman’s boss, the top managers “must have relied heavily” on Fagan in making the decision. But Aldisert found that Joyner’s ultimate decision to dismiss the case on summary judgment was correct since Glanzman was unable to rebut the overwhelming evidence of her history of misconduct. In his summary judgment opinion, Joyner found that “giving the plaintiff the benefit of all possible doubt that her age was a determinative factor in her termination, the defendant has adduced more than sufficient evidence that it would have terminated her regardless of age on the basis of her past infractions, her misconduct in directing maintenance men, leaving the premises without authorization during work hours, failing to timely respond to pages and on the company’s suspicion that she was trying to steal a new dishwasher.” Aldisert found that Joyner’s assessment of the facts was accurate. “Glanzman had already been warned about serious violations of Metropolitan’s policies, she was then caught committing even more serious violations, and lying to cover up what Metropolitan reasonably determined to be a plan to steal a dishwasher for use on a property she owned,” Aldisert wrote. In response to those accusations, Aldisert said, Glanzman “does not even try to rebut most of the district court’s analysis. … Where she does attempt a rebuttal, she simply ignores the overwhelming weight of evidence against her.” Aldisert found that Metropolitan “does not have to prove that Glanzman committed these infractions, but only that it was reasonable in its belief that she had committed them.” And even if she had committed “only a few of them,” Aldisert said, “Metropolitan would have had a surfeit of legitimate reasons to fire her.”

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