Burns v. AAF-McQuay, Inc.

• Decision Date: 23 September 1996
• Docket Number: AAF-M,No. 95-2831,95-2831
• Parties: 71 Fair Empl.Prac.Cas. (BNA) 1490, 69 Empl. Prac. Dec. P 44,281 Frances D. BURNS, Plaintiff-Appellant, v.cQUAY, INCORPORATED, a Minnesota Corporation, Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 728

96 F.3d 728

71 Fair Empl.Prac.Cas. (BNA) 1490,

69 Empl. Prac. Dec. P 44,281

Frances D. BURNS, Plaintiff-Appellant, v. AAF-McQUAY, INCORPORATED, a Minnesota Corporation,

Defendant-Appellee.

Equal Employment Opportunity Commission, Amicus Curiae.

No. 95-2831.

United States Court of Appeals, Fourth Circuit.

Argued June 3, 1996.

Decided Sept. 23, 1996.

ARGUED: Stephanie Rader Sipe, Litten & Sipe, Harrisonburg, VA, for Plaintiff-Appellant. Paul D. Ramshaw, United States Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae. Bruce McCoy Steen, McGuire, Woods, Battle & Boothe, L.L.P., Charlottesville, VA, for Defendant-Appellee. ON BRIEF: Donald D. Litten, Sr., Litten & Sipe, Harrisonburg, VA, for Plaintiff-Appellant. C. Gregory Stewart, General Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, United States Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae. J. Robert Brame, III, McGuire, Woods, Battle & Boothe, L.L.P., Charlottesville, VA, for Defendant-Appellee.

Before ERVIN and MOTZ, Circuit Judges, and SPENCER, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Judge ERVIN wrote the opinion, in which Judge MOTZ and Judge SPENCER joined.

OPINION

ERVIN, Circuit Judge:

Frances Burns sued her former employer, AAF-McQuay, Inc., alleging that she was demoted and constructively discharged in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. The magistrate judge found a genuine issue of material fact as to whether AAF-McQuay's asserted reasons for the demotion were pretextual. The district court disagreed, finding insufficient evidence of pretext or of constructive discharge, and entered summary judgment in favor of AAF-McQuay. We affirm the court's finding that Burns failed to prove constructive discharge, but reverse and remand for trial on the question of whether she was demoted illegally.

I

Federal question jurisdiction over ADEA actions is appropriate under 28 U.S.C. § 1331. This court has appellate jurisdiction over the district court's summary judgment under 28 U.S.C. § 1291. We review the district court's summary judgment de novo, e.g., Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988), viewing the evidence in the light most favorable to the nonmoving party. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986).

II

The district court stated the facts in the light most favorable to Burns:

The plaintiff, Frances D. Burns, was employed by the defendant, AAF-McQuay, Inc., for approximately sixteen years at the defendant's facility in Staunton, Virginia. The plaintiff was the secretary to the human resources manager until her reassignment to the position of switchboard operator. Approximately one month after her reassignment, the plaintiff resigned her employment with the defendant. From 1978 to 1991, the plaintiff was supervised by Chuck Welsh (Welsh). From 1991 to 1992, the plaintiff was supervised by Gary Alderson (Alderson). In 1992, Stephen B. Horney (Horney) became the human resources manager and the plaintiff's supervisor. Horney was the plaintiff's supervisor at all times relevant to this matter.

The plaintiff claims that supervisors Welsh and Alderson consistently evaluated the plaintiff's performance as "commendable" or "excellent." The plaintiff claims that she maintained good working relationships with both Welsh and Alderson and that neither supervisor criticized her work performance. Alderson testified that the plaintiff was an excellent employee and that her job was definitely not in jeopardy because of her work performance.

The defendant claims, however, that Horney became dissatisfied with the plaintiff's performance.

* * * * * * In February 1994, Horney transferred the plaintiff to the position of switchboard operator and replaced the plaintiff with Donna Brown, then thirty-nine years of age. On March 4, 1994, the plaintiff resigned from the company. At the time of her transfer, the plaintiff was sixty-five years of age, and Horney was forty-six years of age.

Memorandum Opinion at 2-4.

III

A

The Fourth Circuit recognizes two avenues of proof by which an employee can prove an ADEA violation: "(1) under ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue, or (2) under a judicially created proof scheme originally used in the Title VII context in McDonnell Douglas Corp. v. Green ... and subsequently adapted for use in ADEA cases." Tuck v. Henkel Corp., 973 F.2d 371, 374-75 (4th Cir.1992) (citing, inter alia, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), cert. denied, 507 U.S. 918, 113 S.Ct. 1276, 122 L.Ed.2d 671 (1993). The district court determined that Burns had failed to create a genuine issue of material fact under either framework.

On appeal, Burns relies only on the McDonnell Douglas scheme. We described its operation in Tuck:

[T]he employee must first establish a prima facie case of age discrimination by showing that (1) he is a member of the protected age group (over 40); (2) he was discharged or demoted; (3) at the time of discharge or demotion he was performing his job at a level that met his employer's legitimate expectations; and (4) following his discharge or demotion, the plaintiff was replaced by someone of comparable qualifications outside the protected class. ¹ Such a prima facie case creates only an inference of age discrimination, which the employer can then rebut by presenting legitimate, non-discriminatory reasons for the termination. If the employer rebuts the employee's inference of age-based discrimination, the employee can still prevail by demonstrating by a preponderance of the evidence that the defendant's proffered reason was a pretext for discrimination. To make this demonstration, the employee must show that as between the plaintiff's age and the defendant's explanation, age was the more likely reason for the dismissal, or that the employer's proffered explanation is simply "unworthy of credence." The burden of persuasion remains with the plaintiff throughout.

973 F.2d at 375 (emphasis added) (citations omitted).

The district court found that Burns had satisfied the requirements of the prima facie case, so the burden of production shifted to AAF-McQuay to demonstrate nondiscriminatory reasons for demoting her. Moreover, the court agreed that Burns had responded to AAF-McQuay's asserted reasons with sufficient evidence that a jury could disbelieve some of them. It concluded, however, that she had not created a jury issue because her evidence failed to challenge two of the reasons.

Burns contends on appeal that her evidence, while perhaps failing to rebut each of AAF-McQuay's reasons individually, is sufficient in the aggregate that a jury reasonably could find all of AAF-McQuay's proffered reasons to be pretextual. She is joined in that position by the EEOC, as amicus curiae. The McDonnell Douglas framework, the EEOC argues, does not require a plaintiff to refute every nondiscriminatory reason offered by the employer. A particular reason may be "so arbitrary or unreasonable that a factfinder may infer, on that ground alone, that the challenged decision was not actually based on that reason, and that the reason is a pretext for discrimination." Or, it continues, the plaintiff's evidence undermining some of the defendant's asserted reasons might lead a jury to believe that the remaining reasons also are pretextual.

Burns's and the EEOC's proposed application appears compelling in a vacuum, because an employer should not be able to avoid trial by offering flimsy excuses. But the McDonnell Douglas framework is not a vacuum. It is a cousin of res ipsa loquitur that effectively shifts the burden of production by allowing a plaintiff to get to the jury on her own flimsy evidence, without proving a discriminatory motive, if the employer cannot show a nondiscriminatory motive. It does not shift the burden of proof, however, but offers an alternate means by which a plaintiff may prove the same ultimate point:

Despite the "minutiae of the various proof schemes set forth in McDonnell Douglas," we emphasized in Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir. [ ], [cert. denied, --- U.S. ----, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994),] that the "straightforward" question to be answered in discrimination cases is whether the plaintiff has successfully demonstrated that she was the victim of age discrimination on the part of the employer. To withstand summary judgment, [a claimant] must produce direct or circumstantial evidence "of a stated purpose to discriminate [on the basis of age] of sufficient probative force to reflect a genuine issue of material fact." [EEOC v.] Clay Printing, 955 F.2d [936,] 941 [ (4th Cir.1992) ] (quoting Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th Cir.1988)).

Henson v. Liggett Group, Inc., 61 F.3d 270, 275 (4th Cir.1995). Therefore, if the plaintiff offers nothing to disprove the defendant's nondiscriminatory explanations, the explanations' weakness alone is insufficient to create an issue of pretext. Instead, the burden of production returns to the plaintiff to present affirmative evidence of age-based animus.

The district court found that Burns's evidence was insufficient to reach the jury under the traditional proof scheme. Even if we accept that conclusion, however, it is not dispositive of the pretext question under the McDonnell Douglas framework. A showing of pretext demands the same type of proof--affirmative evidence of discriminatory intent--required under traditional principles, but not necessarily the same quantum. Affirmative proof that...