Conkwright v. Westinghouse Elec. Corp., No. 90-2414

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before PHILLIPS and NIEMEYER, Circuit Judges, and BUTZNER; PHILLIPS
• Citation: 933 F.2d 231
• Parties: 59 Fair Empl.Prac.Cas. 333, 56 Empl. Prac. Dec. P 40,767, 59 USLW 2744, 13 Employee Benefits Ca 2202 Robert Douglas CONKWRIGHT, Plaintiff-Appellant, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee.
• Docket Number: No. 90-2414
• Decision Date: 14 May 1991

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933 F.2d 231 59 Fair Empl.Prac.Cas. 333,
56 Empl. Prac. Dec. P 40,767, 59 USLW 2744,
13 Employee Benefits Ca 2202 Robert Douglas CONKWRIGHT, Plaintiff-Appellant,
v.
WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellee. No. 90-2414. United States Court of Appeals,
Fourth Circuit. Argued Jan. 10, 1991.
Decided May 14, 1991.

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Phillips P. O'Shaughnessy, argued (Paul W. Spence, on brief), Sandbower, Gabler & O'Shaughnessy, P.A., Baltimore, Md., for plaintiff-appellant.

Monte Fried, argued (Rosemary A. Gladue, Ann L. Lamdin, on brief), Frank, Bernstein, Conaway & Goldman, Baltimore, Md., for defendant-appellee.

Before PHILLIPS and NIEMEYER, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PHILLIPS, Circuit Judge:

Robert Conkwright appeals the district court's grant of summary judgment to his

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former employer, Westinghouse Electric Corp. (Westinghouse), 739 F.Supp. 1006, rejecting Conkwright's age discrimination, ERISA, and pendent state contract claims. We affirm. I

Conkwright brought this action after being laid off, ¹ at the age of 60, from his position as contracts administrator at Westinghouse's Defense and Electronics Center. He had worked for Westinghouse for nearly twenty years at the time of his layoff, but had transferred to this division, at his option, only a few years before his termination. The average age of the three managers of this division at the time of his layoff was 41; the average age of the staff was 32. Conkwright held the highest salary position in the unit (due to his length of service, though he was not a manager).

Shortly after Conkwright arrived at the division, he was given a job performance rating: on Westinghouse's scale of 1 to 4, he was rated a 2, which means "produces acceptable results-requires improvement." That rating also noted that Conkwright had only recently been assigned to the division. Conkwright's lowlevel duties concerned him, and he complained to management about the lack of challenging work assignments. As a result, his work in international marketing programs was expanded somewhat, in an effort to accommodate his complaints. In January 1984, Conkwright was reviewed again, in an annual review, and was rated 1.9 and described as "floundering." In December 1984, he was given a rating of 2.1. Consequently, Conkwright's rating after over two years in this division stayed essentially the same--a "2 performer" who "produces acceptable results but requires improvement."

In 1985, Westinghouse learned that it had lost a major defense contract known as DIVADS. ² The loss of the DIVADS contract ultimately resulted in a reduction-in-force (RIF) for Conkwright's division. To implement the RIF, Westinghouse's manager of human resources asked each manager to identify those employees who were "lowest rated" on the performance scale. An initial list submitted by the managers had a disproportionate number of older Westinghouse employees. As a result, Westinghouse's senior management set guidelines for adjusting the lists so that no one close to vesting would be laid off. Once the exact number of positions to be cut had been identified, Conkwright's supervisor was told to lay off the three "lowest rated" employees. The supervisor identified Conkwright along with two other low rated persons, both of whom were under the age of 40. All three were terminated. Shortly thereafter, Conkwright filed this lawsuit based on the Age Discrimination in Employment Act (ADEA), the Employee Retirement Insurance Security Act (ERISA), and state law breach of contract. After discovery, defendant moved for summary judgment, which the district court granted. This timely appeal followed.

II

On summary judgment, the non-moving party is entitled to have his evidence as forecast assumed, his version of that in dispute accepted, and the benefit of all favorable inferences. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir.1979). We view the summary judgment motion in that light, and we apply the same standard as the district court and determine for ourselves whether there are any genuine issues of material fact that must be resolved by a finder of fact. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In an age discrimination case, a plaintiff must prove that "but for" his employer's discriminatory intent, he would not have been fired or laid off. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.1982). A plaintiff can meet this burden either through direct or indirect

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proof, or by invoking the Title VII, McDonnell Douglas scheme of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Goldberg v. B. Green & Co., 836 F.2d 845 (4th Cir.1988).

Here, Conkwright relies principally upon the Title VII proof scheme, and we address it first.

A

Under that proof scheme, the prima facie case in an age discrimination reduction-in-force case requires proof that the claimant who is in the protected age group was discharged or demoted, was performing his job at the time of discharge at a level that met his employer's expectations, and that either persons outside the protected class were retained in the same position, or that Westinghouse did not treat age neutrally in selecting the claimant for layoff. EEOC v. Western Elec. Corp., 713 F.2d 1011, 1015 (4th Cir.1983).

The only element of the prima facie case which is contested here is whether Conkwright met the legitimate expectations of his employer. As to this element, we hold there was a genuine issue of fact. The ratings that Conkwright received during this time period were all in the 2 range--he was a classic "2 performer." That means that he "produces acceptable results--requires improvement." Westinghouse urges on us the view that the standard means "requires improvement " (the emphasis is theirs) and that anyone "requiring improvement" necessarily fails to meet his employer's expectations. It is equally plausible, however, that one could underscore "produces acceptable results " (the emphasis is ours) in support of the opposite conclusion. Under that alternative interpretation, Conkwright must have been meeting employer expectations, because he "produced acceptable results." A reasonable trier of fact could accept defendant's suggestion and interpret Westinghouse's rating system so that the employer's legitimate expectations were that everyone would produce acceptable results and improve. That reading would not be wrong, it is just different than the one plausibly advanced by plaintiff. Thus, using the objective evidence available, the rating system, we find that reasonable minds could differ as to whether Conkwright "needed improvement" or "produced acceptable results." If plaintiff is entitled to the benefit of all inferences, then there is a genuine dispute as to whether he met the legitimate expectations of his employer. ³

B

When a plaintiff establishes a prima facie case, then the employer must present a legitimate, non-discriminatory reason for the layoff. In this case, that is straightforward: the cancellation of the DIVADS contract forced Westinghouse to reduce its force, and the RIF was implemented by choosing the lowest rated persons. Conkwright argues that the district court too readily credited Westinghouse's asserted basis for the layoff, the use of the rating system; instead he contends that the rating system was somehow infected with bias toward Conkwright and older workers. This assertion is misplaced. Deciding to lay off someone based on a company-wide performance rating system, which has been in place for years and which has not been shown to be discriminatory, and choosing to lay off all those who were among the lowest rated, must count as "an articulation of a legitimate, non-discriminatory reason." That is not to say that the legitimate, nondiscriminatory reason will not later be found pretextual. But for this stage in the proof scheme it suffices.

C

Having made out a prima facie case and being then confronted with an employer's

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articulated non-discriminatory reason, a claimant then has the burden to show that the articulated reason was pretext. To survive a summary judgment motion, Conkwright must therefore demonstrate the existence of a genuine issue of fact as to whether age, rather than the performance ratings, was used by Westinghouse in selecting Conkwright for layoff. We affirm the granting of summary judgment because there is no significant evidence that shows the rating system was a pretext for Conkwright's firing or that age played any role in the termination decision.

Westinghouse management had to cut employees due to the loss of the DIVADS contract. A large number of persons across the company were cut. In choosing whom to lay off, it relied on an ostensibly neutral, merit-based system, its internal rating system. That system generated a list of names of those who were the "lowest rated." Management then adjusted this list to avoid hurting disproportionately minorities or those nearing vesting or retirement, an action that surely does not suggest a pretextual basis for Conkwright's termination. See McDaniel v. Mead Corp., 622 F.Supp. 351, 358-59 (W.D.Va.1985); see also part III, infra (discussing plaintiff's ERISA claim). Conkwright's name was appropriately on the ratings system list; his ratings put him in the lowest rated category. That co-workers and direct managers may have thought he did a good job, or that he did not "deserve" the ratings or did not "deserve" to get laid off, is close to irrelevant. ⁴ The system Westinghouse used was objective and facially fair, even if it, like all human endeavors, was imperfectly administered.

There is no evidence to which Conkwright can point as suggesting pretext, except that he met the job expectations of his employers and he was over age 40. Even if we accept that, the ratings system informed...