Barnes v. Southwest Forest Industries, Inc.

Decision Date13 April 1987
Docket NumberNo. 86-3441,86-3441
Citation814 F.2d 607
Parties43 Fair Empl.Prac.Cas. 867, 43 Empl. Prac. Dec. P 37,057 Grady Allen BARNES, Billy Blount, et al., Plaintiffs-Appellants, v. SOUTHWEST FOREST INDUSTRIES, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Patterson & Traynham, Ben R. Patterson, Tallahassee, Fla., for plaintiffs-appellants.

G. Thomas Harper, Jacksonville, Fla., Robert S. Phifer, Haynsworth, Baldwin, Miles, Johnson, Greaves, Greensboro, N.C., for defendant-appellee.

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

Before RONEY, Chief Judge, EDMONDSON, Circuit Judge, and TUTTLE, Senior Circuit Judge.

EDMONDSON, Circuit Judge:

This case is an appeal from a summary judgment granted by the United States District Court for the Northern District of Florida. 654 F.Supp. 193 (1986). Because we find that plaintiff/appellants failed to establish a prima facie case, thereby failing to establish a genuine issue of material fact, we affirm.

The six plaintiffs/appellants in this case were employed as security guards at a paper mill owned by Southwest Forest Industries, Inc. ("Southwest"). In the spring of 1984, Southwest terminated its in-house security force and contracted with Wackenhut Security Services, Inc. to provide security. At the time of their termination, thirteen of the fourteen guards were over 40 years old. An additional security guard, a black female, was under 40 years old and is not a party to this action,

Plaintiffs all applied for re-employment in other positions with Southwest, and then filed suit against the company, alleging discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. sec. 621 et seq. (1985) (ADEA). Their suit charged that defendant discriminated against them by failing to retain them in other positions and by failing to rehire them once they had been terminated.

Both parties filed motions for summary judgment in the district court. The judge granted the employer's motion. Plaintiffs appeal to this court, requesting that we reverse the judgment of the district court and remand the case with instructions to grant summary judgment in favor of plaintiffs.

First, we note that we are considering an appeal from a decision regarding summary judgment. In such a case, we must apply the same standards as those that bind the district court. Pace v. Southern Ry. Sys., 701 F.2d 1383, 1391 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983). Our inquiry, then, is whether there is any genuine issue remaining in regard to material facts in this case. Fed.R.Civ.P. 56(e).

Such a standard requires that we resolve all reasonable doubts in favor of the non-moving party, Williams v. City of Dothan, 745 F.2d 1406 (11th Cir.1984); but it does not require us to resolve all doubts in such a manner. "Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.' " Celotex Corp. v. Catrett, --- U.S. ----, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (plurality opinion). "Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis." Id.

Furthermore, a court must bear in mind the "actual quantum and quality of proof necessary to support liability" in a given case. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The standard for summary judgment mirrors that for directed verdict, so that if on any part of the prima facie case there would be insufficient evidence to require submission of the case to a jury, we must affirm the grant of summary judgment. Id., 106 S.Ct. at 2512. With these principles in mind, we turn to the substantive law governing this case to determine which facts are material. Id. at 2510.

In McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court established the elements of a prima facie case of discriminatory treatment under Title VII. A plaintiff must demonstrate: (1) that he belongs to a protected class; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected; and (4) that the employer continued to seek applicants of similar qualifications. Id. at 802, 93 S.Ct. at 1824. This circuit has adopted that prima facie case for claims of age discrimination under the Age Discrimination in Employment Act (ADEA). See, e.g., Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525 (11th Cir.1985).

The instant case is somewhat different, however, because it involves a reduction in the employer's work force. In such cases, an employer rarely seeks more applicants for the jobs terminated, a circumstance that makes it almost impossible for a plaintiff to establish the fourth prong of the McDonnell-Douglas test. Pace v. Southern Railway System, 701 F.2d 1383, 1386-87 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983). Accordingly, this Circuit has held that a plaintiff in a job-reduction case can establish a prima facie case by demonstrating: (1) that he was in a protected group and was adversely affected by an employment decision; (2) that he was qualified to assume another position at the time of discharge or demotion; and (3) evidence by which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue. Williams v. General Motors Corp., 656 F.2d 120, 129 (5th Cir. Unit B 1981), 1 cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). Although this test is not "the alpha and omega of possible tests in the age discrimination context," Pace, 701 F.2d at 1387, it does establish the proposition that the plaintiff's burden is to introduce evidence that supports a reasonable inference of intentional age discrimination.

It is significant that plaintiffs on appeal do not allege age discrimination in regard to the decision to transfer the responsibility for security to an outside company. Southwest presented evidence that its decision to close down its in-house security department was prompted by valid economic considerations. Plaintiffs have not disputed this evidence and have not alleged that Southwest's decision was actually motivated by discrimination. Rather, they argue that Southwest discriminated by failing to retain or rehire them in other jobs in the mill.

Plaintiffs attempt to prove this contention with two items of evidence that they claim supports such an inference. First, during the three months immediately preceeding the discharge of the fourteen security guards, Southwest hired twelve employees, only one of whom was older than 40, for other positions in the plant. Two of them were hired after Southwest signed the contract with Wackenhut Security Services, but before the contract went into effect and the plaintiffs were discharged. According to plaintiffs, the fact that Southwest hired the younger employees without giving the older plaintiffs an opportunity to compete for those jobs creates a prima facie case of age discrimination.

Plaintiffs fail to demonstrate, however, that they were actually available to take those jobs. We note that they neither allege nor demonstrate that Southwest could have postponed filling the relevant positions until after plaintiffs were discharged. We are forced to assume, therefore, that Southwest needed to hire employees for those positions during February, March, and April of 1984.

The record demonstrates that Southwest needed an in-house security force until the contract with Wackenhut went into effect in May, 1984. If Southwest had transferred plaintiffs when the other jobs came open, the company would have been forced to either do without a security force or attempt to hire temporary security employees. Southwest's decision to retain their current security employees until the contract went into effect while hiring new employees for the other positions does not support an inference of age discrimination. Likewise, the fact that most of those new employees were less than 40 years old is...

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