Thornbrough v. Columbus and Greenville R. Co.

• Decision Date: 17 May 1985
• Docket Number: No. 84-4410,84-4410
• Citation: 760 F.2d 633
• Parties: 37 Fair Empl.Prac.Cas. 1414, 37 Empl. Prac. Dec. P 35,274 Maud Lee THORNBROUGH, Jr., Plaintiff-Appellant, v. COLUMBUS AND GREENVILLE RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 633

760 F.2d 633

37 Fair Empl.Prac.Cas. 1414,

37 Empl. Prac. Dec. P 35,274

Maud Lee THORNBROUGH, Jr., Plaintiff-Appellant, v. COLUMBUS AND GREENVILLE RAILROAD COMPANY, Defendant-Appellee.

No. 84-4410.

United States Court of Appeals Fifth Circuit.

May 17, 1985.

Colom, Mitchell & Colom, Wilbur O. Colom, Columbus, Miss., for plaintiff-appellant.

Threadgill, Smith, Sanders & Jolly, Taylor B. Smith, Columbus, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GOLDBERG, POLITZ, and WILLIAMS, Circuit Judges.

GOLDBERG, Circuit Judge:

Grow old along with me!

The best is yet to be,

The last of life, for which

the first was made.

--Robert Browning, Rabbi Ben

Ezra st. 1 (1864)

For many elder Americans, Browning's verse is a cruel jest rather than a reassuring vision. Not only must they face the inexorable advance of nature--they must face the biases of their fellow man. In 1967, recognizing that one of the tests of a civilized society is its treatment of the elderly, Congress enacted the Age Discrimination in Employment Act ("ADEA"), Pub.L. No. 90-202, 81 Stat. 602 (codified as amended at 29 U.S.C. Secs. 621-634 (1982)). The Act has as its purpose the "elimination of discrimination from the workplace," Lorillard v. Pons, 434 U.S. 575, 584, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978), by making it unlawful for employers to discriminate against persons between the ages of forty and seventy based on their age. 29 U.S.C. Secs. 623(a), 631. ¹

In February 1983, Maud Lee Thornbrough brought suit against the Columbus & Greenville Railroad, alleging that he had been dismissed because of his age, in violation of the ADEA. The district court held that Thornbrough had failed to present a prima facie case of age discrimination and granted summary judgment for the Railroad. Because we conclude that Thornbrough raised a genuine issue of material fact, we hold that summary judgment was improperly granted. Accordingly, we reverse the judgment below and remand for further proceedings.

I. FACTS

At the time of his discharge from the C & G Railroad, Thornbrough was fifty-six years old and held the position of Vice President of Federal Projects. He had worked in the railroad business for approximately thirty-one years--the last five with the C & G Railroad, from 1977 to 1982. During this time, he held a variety of positions, including Assistant Chief Engineer, Vice President-Chief Engineer, Vice President of Transportation, and Vice President of Operations.

The C & G Railroad was established in 1975. From its inception, it was plagued with financial problems. Indeed, between the years 1975 and 1982, the Railroad made a net profit in only one year and accumulated net losses of $1.6 million. Its losses exclusive of real property gains totaled $3.58 million.

In 1982, the Railroad determined that in order to cut these losses, it had to reduce its work force. Between February and November 1982, the Railroad "furloughed" (that is, fired) forty-three employees. Including retirements, the Railroad's work force was reduced by forty-six employees, from 106 to 60. In addition, the Railroad went on a four-day work week, and management deferred payment of approximately ten percent of its own salary.

On June 30, 1982, the Railroad furloughed Thornbrough. Apparently, no one replaced Thornbrough in his position as Vice President of Federal Projects. Instead, his position was eliminated and its duties divided up among the Railroad's Chief Engineer, Accountant, and General Supervisor of Maintenance of Ways and Structures. These individuals were approximately forty-seven, thirty, and fifty-four years old, respectively. The Railroad also retained several other younger employees in positions similar to Thornbrough's and hired two new employees with little railroad experience. The precise ages of these retained and new employees are somewhat unclear. At least one was clearly outside of the protected ADEA class at the time of Thornbrough's furlough, ² and several others may also have been outside of the protected class. ³

Thornbrough brought suit against the Railroad on February 11, 1983, alleging both a violation of the ADEA and breach of contract. In support of the ADEA claim, Thornbrough alleged that he was better qualified than the younger employees whom the Railroad retained and hired, including the three persons who assumed his former duties. According to Thornbrough, the fact that younger, less well-qualified employees were retained and hired in preference to him was evidence that the Railroad had discriminated based on age.

Following limited discovery, the district court granted the Railroad's motion for summary judgment on the ADEA claim on the ground that Thornbrough had failed to establish a prima facie case, and dismissed without prejudice Thornbrough's pendent state claim for breach of contract. Thornbrough now appeals.

II. ELEMENTS OF A PRIMA FACIE EMPLOYMENT DISCRIMINATION CASE

In a disparate treatment suit, the ultimate issue is whether the employer intentionally discriminated against the plaintiff. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); Elliott v. Group Medical & Surgical Service, 714 F.2d 556, 564 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). Thus, if a plaintiff is able to offer sufficient direct evidence of intentional discrimination, he obviously should prevail. Usually, however, this is not the case. Unless the employer is a latter-day George Washington, employment discrimination is as difficult to prove as who chopped down the cherry tree. See Mendez, Presumptions of Discriminatory Motive in Title VII Disparate Treatment Cases, 32 Stan.L.Rev. 1129 (1980). Employers are rarely so cooperative as to include a notation in the personnel file, "fired due to age," or to inform a dismissed employee candidly that he is too old for the job. See Aikens, 460 U.S. at 716, 103 S.Ct. at 1482.

To ease the evidentiary burdens on employment discrimination plaintiffs, courts have fashioned special rules of proof, in order "progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981). ⁴ Initially a plaintiff can create a rebuttable presumption of intentional discrimination by establishing a "prima facie case." Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Generally, to establish a prima facie case, a plaintiff need only make a very minimal showing. He can meet his initial burden by showing merely that he was within the protected class, that he was qualified for the job in question, and that employees outside of the protected class were more favorably treated--for example, by being hired to a job for which the plaintiff was turned down or by replacing the plaintiff in the job from which the plaintiff was discharged. See, e.g., McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Price, 561 F.2d at 612.

Once an employee has established a prima facie case, the burden of production shifts to the employer. In order to rebut the presumption of intentional discrimination, the employer must articulate "some legitimate, nondiscriminatory reason" why the plaintiff was rejected or someone else was preferred; otherwise, the factfinder is required to find for the plaintiff. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. ⁵

By articulating legitimate reasons for his decision, the employer rebuts the initial presumption of intentional discrimination created by the plaintiff's prima facie case. The burden of production therefore shifts back to the plaintiff, albeit at "a new level of specificity," to prove that the reasons articulated by the employer are not true reasons but only pretexts. Aikens, 460 U.S. at 714-15, 103 S.Ct. at 1481-82 (quoting Burdine, 450 U.S. at 255, 101 S.Ct. at 1095); see also McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. at 1824-26. ⁶ The plaintiff can do this in two ways, "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; see also Bohrer v. Hanes Corp., 715 F.2d 213, 218 (5th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). The first of these alternatives is the alternative that is always open to the plaintiff in an employment discrimination case: producing "evidence from which a trier of fact might reasonably conclude that the employer intended to discriminate in reaching the decision at issue." Elliott, 714 F.2d at 562. The second, however, depends upon the resurrection of the presumption initially created by the plaintiff's prima facie case. By disproving the reasons offered by the employer to rebut the plaintiff's prima facie case, the plaintiff recreates the situation that obtained when the prima facie case was initially established: in the absence of any known reasons for the employer's decision, we presume that the employer was motivated by discriminatory reasons. As the Court explained in Furnco,

[W]e are willing to presume this largely because we know from our experience that more often than not people do not act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. Thus, when all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts only with some reason, based his decision on an impermissible consideration such as race.

438 U.S. at 577, 98 S.Ct. at...