Employment Law Daily Dismissal after three-year delay of employee’s ADEA claim for failure to prosecute was abuse of discretion
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Monday, April 29, 2019

Dismissal after three-year delay of employee’s ADEA claim for failure to prosecute was abuse of discretion

By Kathleen Kapusta, J.D.

Without a doubt, the Third Circuit stated, cases should be decided on the merits barring substantial circumstances in support of the contrary outcome.

Vacating a district court’s dismissal of an employee’s ADEA suit based on a lack of prosecution—there had been no action for three years until the death of a key witness prompted an employer’s motion to dismiss—the Third Circuit found the lower court misstated the law, relied upon findings that were not supported by the record, and did not consider the employer’s motion in light of the circuit’s strong policy of deciding cases on the merits (Hildebrand v. Allegheny County, April 24, 2019, Fisher, D.).

Hired in 2005 by the Allegheny County District Attorney’s Office after 15 years as an undercover narcotics detective, the employee worked without incident for roughly four years until, he alleged, a new supervisor began subjecting him to age related comments, changed his job responsibilities, subjected him to heightened scrutiny, and ultimately demoted him, telling him he had gotten rid of old detectives before and was doing it now. The negative treatment, he claimed, continued after his termination when the DA’s Office refused to pay him for unused sick days and tried to obstruct his application for a private investigator’s license.

Prior proceedings. The employee ultimately sued, alleging violations of the ADEA, Section 1983, and various state laws. The district court dismissed his claims and the Third Circuit affirmed the dismissal of the Section 1983 claims but reversed as to the ADEA claim. The employee then filed a petition for certiorari regarding the dismissed claims, which the U.S. Supreme Court denied without elaboration. While his petition was pending, the DA’s Office moved to dismiss his ADEA claim, prompting the employee to file a motion to stay until the appellate proceedings were concluded. He also filed a substantive response to the motion to dismiss.

Administratively closed. After the Supreme Court denied his petition, the case was returned to the district court in February 2015 where the docket remained administratively closed due to clerical error. For the next three years, the stay was not lifted and neither the employee nor the DA’s Office followed up on the motion to dismiss until the death of a key witness—the employee’s supervisor—in 2018. At that point, the DA’s Office filed a motion to dismiss for failure to prosecute, which the district court granted.

Poulis factors. In determining whether to dismiss a case for failure to prosecute, a district court should consider the six Poulis factors, the Third Circuit observed, noting that the court abuses its discretion where it fails to properly consider and balance those factors. Although the court below found that five of the factors weighed in favor of dismissal and that one was neutral, the appeals court pointed out that it failed to mention the strong policy favoring decisions on the merits. “While that alone is not an abuse of discretion,” wrote the appeals court, “we are not convinced that the court had this policy in mind when it analyzed the Poulis factors and dismissed Hildebrand’s case with prejudice.”

Party’s responsibility. Turning to the first factor—extent of the party’s responsibility—the Third Circuit noted that the district court found the employee, as the person with the “most at stake,” personally responsible for the three-year hiatus. But there was no evidence of his involvement or lack of involvement and thus this was conjectural and not based on the record. Noting that it was entirely possible that the employee was patiently awaiting the resolution of what he assumed were lengthy appeals, the court found that without record evidence supporting the notion that he was personally responsible for the delay, the district court should not have weighed this factor in favor of dismissal.

Prejudice to the adversary. The lower court, however, appropriately concluded that the supervisor’s death prejudiced the DA’s Office as the employee’s allegations against him were at the heart of his claims and his death undermined the jury’s opportunity to weigh the credibility of the employee’s accusations against his demeanor. Accordingly, this factor weighed in favor of dismissal but, said the court, “was not dispositive of the appropriateness of the harshest sanction available.”

History of dilatoriness. And while the lower court appropriately concluded that the extensive delay also weighed in favor of dismissal, the weight it gave this factor should have been mitigated by the employee’s otherwise responsible litigation history. His conduct had not been delinquent at any other point and the delay was an isolated incident.

Willful or bad faith conduct. The appeals court also disagreed with the lower court’s finding that because the employee did not cause the delay willfully or in bad faith this factor was neutral. The delay was not effectuated by a self-serving or bad faith tactic, the appeals court observed, and thus the lower court should have weighed this factor against dismissal.

Other sanctions. As to the effectiveness of sanctions other than dismissal, the district court’s one paragraph consideration and dismissal of fines as the only alternative was insufficient to honor the longstanding tradition of favoring decisions on the merits, the Third Circuit stated, finding that the court below should have more fully considered whether sanctions other than fines may have been effective.

Meritoriousness of claim. Finally, observed the appeals court, the lower court altogether failed to address the meritoriousness of the employee’s ADEA claim. Had it had evaluated the amended complaint for meritoriousness and applied the correct standard, it would have found the employee alleged sufficient facts to plausibly state an ADEA claim.

Balancing the factors. Noting that in evaluating a motion to dismiss for failure to prosecute, it generally affords great deference to a district court’s discretion, the appeals court explained that “Where it is apparent that a district court misstated the law, relied upon findings that were not supported by the record, or did not consider the motion in light of our strong policy in favor of deciding cases on the merits, we must conclude that it abused its discretion.” And here, the lower court did all three. Its conclusions regarding three of the five factors rested on inadequate foundations and it should have concluded that the willfulness/bad faith factor weighed against dismissal.

The scope of its review was limited to determining whether the district court abused its discretion, said the Third Circuit, observing that “How we imagine we might have exercised our own discretion had we been in the district court judge’s robes is entirely irrelevant.” In failing to apply the correct standard, including a failure to consider the Poulis factors in light of clear and repeated instruction to resolve doubt in favor of a decision on the merits, the district court abused its discretion.

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