Dockins v. Benchmark Communications

• Decision Date: 29 March 1999
• Docket Number: No. 98-1285,98-1285
• Citation: 176 F.3d 745
• Parties: 75 Empl. Prac. Dec. P 45,806 Kenneth A. DOCKINS, Plaintiff-Appellant, v. BENCHMARK COMMUNICATIONS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 745

176 F.3d 745

75 Empl. Prac. Dec. P 45,806

Kenneth A. DOCKINS, Plaintiff-Appellant, v. BENCHMARK COMMUNICATIONS, Defendant-Appellee.

No. 98-1285.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 26, 1999.

Decided March 29, 1999.

ARGUED: Benjamin Allen Dunn, II, Cromer & Mabry, Columbia, South Carolina, for Appellant. Brent Overton Edgar Clinkscale, Haynsworth, Marion, McKay & Guerard, Greenville, South Carolina, for Appellee. ON BRIEF: James Lewis Mann Cromer, Cromer & Mabry, Columbia, South Carolina, for Appellant. Hamlet Sam Mabry, III, Haynsworth, Marion, Mckay & Guerard, Greenville, South Carolina, for Appellee.

Before WILKINSON, Chief Judge, and WILKINS and KING, Circuit Judges.

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion in which Judge WILKINS joined. Judge KING wrote a dissenting opinion.

OPINION

WILKINSON, Chief Judge:

Kenneth A. Dockins brought suit against his former employer, Benchmark Communications, alleging that Benchmark fired him because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The district court, holding that Dockins failed to raise a triable issue of fact as to whether age was the real reason for his termination, granted summary judgment to Benchmark. Because it is clear that Benchmark discharged Dockins because of poor performance rather than his age, we affirm.

I.

From 1975 until his discharge in 1996, Dockins worked as an account executive for WESC, a radio station in Greenville, South Carolina. Dockins sold air time to advertisers in the station's listening area. WESC paid Dockins on a straight commission basis augmented by occasional bonuses. Dockins was supervised by Charles Wayne Sumner who, as the station's senior account executive, also sold advertising time.

In March 1995, Benchmark Communications purchased WESC. Benchmark hired Mike LoConte to oversee the seven to eight sales representatives of WESC as well as the representatives of its sister station, WTPT.

LoConte, whose remuneration depended in part on the revenues generated by those under his command, attempted to improve advertising sales. Once a month he met with each representative to establish sales goals for the forthcoming month and to analyze the previous month's sales. In one of LoConte's first meetings with Dockins in August, LoConte informed him that his performance was substandard and requested that he submit daily call sheets to focus his sales activities.

Despite LoConte's warning to Dockins about his performance, Dockins' output continued to lag behind that of his colleagues. In the third quarter of 1995 Dockins sold less than any other salesman who worked for WESC for the full quarter--generating $20,000 less in sales than the representative selling the next lowest amount. In the fourth quarter, Dockins was second-to-last in sales revenue generated. Most notably, Dockins failed to cultivate new accounts. His new account sales for the third quarter totaled only $2,490, placing him roughly $6,000 behind the next lowest full-time sales representative. In the fourth quarter, Dockins' new account sales dipped to just $900.

In response to Dockins' scant output, LoConte called a meeting with Sumner and Dockins on January 15, 1996. LoConte informed Dockins that he was placing him on a thirty-day probationary period, during which LoConte expected his sales numbers to improve. When they did not, LoConte terminated Dockins' employment. Dockins was sixty years old at the time.

Alleging that Benchmark fired him because of his age rather than for any legitimate reason, Dockins brought suit in the United States District Court for the District of South Carolina. The district court granted summary judgment to Benchmark.

II.

Dockins attempts to prove his claim of discrimination by relying on the extended burden-shifting scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At this stage in the litigation, however, the ultimate question is whether Dockins can demonstrate that Benchmark discharged him because of his age. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). We agree with the district court that Benchmark discharged Dockins because of his poor performance, and that this case is clearly one about business realities rather than age animus.

A.

Benchmark claims that it fired Dockins due to his poor performance rather than because of his age. Benchmark offers substantial evidence that Dockins' sales output during the second two quarters of 1995 pegged him as WESC's least effective sales representative. During the third quarter, Dockins posted a total of $60,229 in sales, fully $20,000 less than the next lowest performing full-time representative. During the fourth quarter, Dockins sold $74,776 worth of air time, a sum which landed him second from the bottom.

Just as importantly, Dockins' sales from new accounts were below those of his fellow sales representatives. He generated only $2,490 in July and none in August or September, making him the lowest producing full-time salesman by nearly $6,000. Similarly, he created no sales from new accounts in October and November, and only $900 worth in December.

Notably, Sumner, who is close in age and experience to Dockins, consistently turned in sales figures that far outstripped Dockins'. For instance, Sumner sold $207,515 in air time for the third quarter of 1995 as compared with Dockins' $60,229. And in the fourth quarter Sumner sold $210,313 worth of advertising while Dockins' sold only $74,776. Finally, Sumner's new business sales for the third quarter alone were well over Dockins' for the third and fourth quarters combined.

Dockins does not dispute the fact that his numbers place him not at the top, not even in the middle, but at the absolute bottom of the list. Instead, he offers excuses. Dockins alleges that Benchmark took a series of actions to lower his sales figures during the last half of 1995. But even if Benchmark attempted to decrease Dockins' sales, that fact is irrelevant unless Dockins can show Benchmark did so because of age bias. This, he cannot do.

First, Dockins alleges that Benchmark failed to include in his sales figures the "trade business"--the trading of air time for goods and services rather than money--in which he engaged during the last half of the year. Second, Dockins claims that Benchmark transferred one of his accounts to another WESC sales representative. Third, Dockins claims that LoConte refused to provide some of Dockins' accounts with bonus commercials, forcing them to discontinue their advertising with WESC.

Benchmark presents unrefuted evidence, however, that in each instance it acted pursuant to neutral corporate policies which it applies equally to each of its representatives regardless of age. ¹ With regard to Dockins' trade business, it is Benchmark's standard practice to exclude those figures from a representative's sales. Similarly, Benchmark followed its traditional rule of assigning accounts by company rather than brand name when it transferred Dockins' account. Finally, Benchmark introduces uncontested evidence that providing bonus commercials to Dockins' other accounts would have made them unprofitable.

Dockins makes two additional accusations that Benchmark hampered his performance, but he fails to provide any evidentiary support beyond mere supposition. In no event does he tie his allegations to age bias on the part of Benchmark.

Initially, he claims that LoConte was rude to a representative from an advertising agency to which Dockins had sold advertising slots, causing the agency to purchase air time elsewhere. Even assuming that LoConte was rude to the advertising agency's representative, Dockins provides no evidence that age animus was the reason. In addition, Dockins proffers nothing other than his belief that it was LoConte's behavior that ultimately caused the agency to look elsewhere.

Dockins further claims that LoConte diverted "call in business"--business in which potential advertisers call the station unsolicited--away from him. Again, conspicuously absent from Dockins' claim is any evidence that age motivated LoConte. Moreover, Dockins himself admits that he has no knowledge of any instance in which call in business was channeled away from him. Indeed, he introduces only the testimony of another sales representative, Allan Jenkins, that call in business "probably" was diverted. Such unspecific and speculative opinions are simply insufficient to raise a triable issue of fact as to Dockins' performance. See, e.g., EEOC v. Clay Printing Co., 955 F.2d 936, 945-46 (4th Cir.1992).

Finally, excuses aside, Dockins attempts to cast doubt on Benchmark's performance rationale by referencing the fact that Benchmark awarded him three bonuses during the last half of 1995. But with regard to two of the bonuses, Dockins gives us no reason to believe they say anything about his individual performance. Benchmark awards bonuses for any number of reasons, for instance, as rewards for being part of a team that performs well. Dockins does explain his third bonus; Benchmark rewarded him for reaching ninety percent of his sales goal mid-month. Dockins' partial performance for one month, however, says nothing about his overall performance for the entire second half of 1995. ²

In sum, Dockins' poor sales figures go virtually unrebutted. Dockins' output lagged behind that of WESC's other representatives for the entire second half of 1995. It lagged both in total sales and in new business. LoConte warned Dockins and attempted to refocus his efforts by requiring daily call sheets. Still, Dockins' sales were spare. Finally, at the end of a thirty-day probationary period Benchmark terminated his employment. In the face of this evidence, Dockins presents nothing more than accusations...