E.E.O.C. v. Clay Printing Co.

• Decision Date: 02 March 1992
• Docket Number: No. 91-2576,91-2576
• Citation: 955 F.2d 936
• Parties: 58 Fair Empl.Prac.Cas. (BNA) 256, 58 Empl. Prac. Dec. P 41,272 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CLAY PRINTING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 936

955 F.2d 936

58 Fair Empl.Prac.Cas. (BNA) 256,

58 Empl. Prac. Dec. P 41,272

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. CLAY PRINTING COMPANY, Defendant-Appellee.

No. 91-2576.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 30, 1991.

Decided Feb. 5, 1992.

As Amended March 2, 1992.

Robert John Gregory, E.E.O.C., Washington, D.C., argued (Donald R. Livingston, Acting Gen. Counsel, Gwendolyn Young Reams, Associate Gen. Counsel, Lorraine C. Davis, Asst. Gen. Counsel, on brief), for plaintiff-appellant.

John Robbins Wester, Robinson, Bradshaw & Hinson, P.A., Charlotte, N.C., argued (Mark W. Merritt, John B. Orgain, IV, on brief), for defendant-appellee.

Before RUSSELL and HAMILTON, Circuit Judges, and RESTANI, Judge, United States Court of International Trade, sitting by designation.

OPINION

HAMILTON, Circuit Judge:

This is a civil enforcement action brought by the EEOC ("EEOC or Commission") under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S. § 621, et seq. On May 18, 1990, the EEOC filed suit against Clay Printing Company ("Clay") for violations of the ADEA. The Commission sought individual relief on behalf of 23 claimants, five discharge claimants and 18 constructive discharge claimants. On appeal, the EEOC is pursuing the five discharge claims and four of the 18 constructive discharge claims. On April 19, 1991, the district court entered summary judgment for Clay on all claims and the EEOC appeals. Upon review of the record, we agree with the district court that the EEOC presented insufficient evidence to survive Clay's motion for summary judgment. Accordingly, the decision of the district court is affirmed.

I

We review the district court's grant of summary judgment de novo. Higgins v. E.I. DuPont De Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.1988). For the purposes of summary judgment, we assume as true the facts alleged by the EEOC. See Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074, 2078, 48 L.Ed.2d 684 (1976).

Clay Printing is a family-owned business located in Hickory, North Carolina. For years, the company was owned and managed by J. Wesley "Buddy" Johnson. Following his death in 1985, control of the company passed to his widow, Nancy Johnson, who ceded the responsibility for the day-to-day operation of the business to other company officials.

In the fiscal years of 1986 and 1987, Clay continued to generate a profit. Indeed, in 1986, the company posted its largest profit in its history. Nancy Johnson, however, remained concerned about the company, especially over a growing inventory of paper and over the lackadaisical attitudes of some employees.

In July of 1987, Ms. Johnson sought advice from Ray L. Scott, a management consultant with experience in the printing business, and a friend of her late husband. Scott agreed to serve as a consultant. After extensive review of Clay's operations, Scott made observations and recommended detailed changes in Clay's operations. Those observations and recommendations included that:

1. The company appeared to be extremely overstaffed and inefficient; there were approximately 15 and maybe 20 employees too many at the current [sales] level;

2. Clay's management structure be reorganized;

3. The sales division's salary structure be converted to commission only;

4. The sales staff assume their own expenses;

5. Clay create a policy and procedure manual;

6. Clay implement a quality control procedure; and

7. Clay make employee evaluations to determine who was good, who was hurting the company, and who was dead wood.

Clay's Board of Directors adopted many of Scott's recommendations. Beginning in the summer and fall of 1987, Clay began implementing Scott's proposed reorganization by terminating several of its employees. Scott became an integral part of the management hierarchy at Clay, and made frequent visits to the company. Scott ordered the terminations of some employees and participated in hiring and firing decisions made by the company. Scott inquired into early retirement for some employees, and in one of his initial visits to Clay, Scott remarked at a meeting with company officials that "too many people have been here too long and make too much money." Scott also indicated that "the company didn't have young blood in the company being crossed [sic] trained," and that "if employees had been there 10 years or more, they needed to move on."

The five discharge claimants in this case are Edna Brown, Richard Bowman, Roosevelt Whittington, Robert Herman, and Gary Houck. These individuals were terminated in the aftermath of Scott's reorganization initiative. Each discharge claimant received no formal reprimands or warnings prior to his or her termination. However, there was evidence proffered by Clay that the discharge claimants were terminated for cause.

Richard Bowman was terminated in February, 1989. Bowman was 58 at the time, and had nearly 40 years experience with Clay. At the time of discharge, he was Clay's only platemaker. Bowman had not received any written or oral reprimands regarding his work and, by several accounts, including his immediate supervisor (Robert Herman), was performing his job well. Bowman's position was filled by Steve Herman, a Clay employee, age 35. Sid Ballard, Clay's production manager, testified that Bowman was repeatedly in the break room when there was work to be done; made defective plates; would not fill out plate-remake reports; smoked over plates; and by his own admission, became confused and would not think straight.

Robert Herman was also terminated in February, 1989. Herman was 48 at the time, and had nearly 20 years of experience with Clay. At the time of discharge, Herman was Clay's prepress supervisor. There is evidence that no complaints or reprimands were directed at Herman. After termination, Herman's duties were assumed by Sid Ballard, Herman's supervisor, age 35. Ballard, however, testified that Herman had too many plate remakes in his department; that work in his department took too long; and that Herman never emphasized timeliness to his employees. Herman testified that Scott was critical of his department.

Roosevelt Whittington was terminated in October, 1987. He was 53 at the time, and had worked at Clay for over 25 years. At the time of discharge he was Clay's quality control supervisor, a position created by Clay pursuant to Scott's recommendations. Nobody filled Whittington's position after discharge. His old position, pressroom supervisor, was filled by Fred Lail, age 48.

In his initial recommendations to the Board, issued two months prior to Whittington's discharge, Scott described as "unfortunat[e]" the fact that Whittington had 25 years experience with Clay. When Ned Lutz informed Whittington that he was being terminated, Lutz indicated that he was discharged because he "ma[d]e more money on the floor than anybody else." Scott testified that Whittington was terminated because he spent excessive amounts of time in the break room and was failing to assure that Clay's employees followed policies and procedures on quality control.

Edna Brown was discharged in November, 1988. Brown was 60, and for several years worked as Clay's bookkeeper. In August, 1987, Brown was transferred to the comptroller position. In May, 1988, she was relieved of her duties as comptroller and given the job of personal assistant to Nancy Johnson. In Scott's report and recommendation, he described Brown as bright and intelligent.

When Brown was removed from the comptroller's position, she was replaced by Edward Sipes, age 46. At that time, Clay had retained Sybil Howard, age 53, to perform the bookkeeping functions. A woman, whose age was unknown, was hired to assist Mrs. Johnson after Brown was terminated.

When Scott hired Sipes, who would ultimately replace Brown as comptroller, Scott indicated that Brown might leave through early retirement and that Sipes would replace her as comptroller. In May, 1988, Scott and Mrs. Johnson met with Brown and requested that she take early retirement. Brown refused. The following Monday, Brown was removed from her position as comptroller.

According to Sipes, Brown did not have the training to be a comptroller and could not prepare financial statements or profit and loss statements. With respect to her termination as Mrs. Johnson's aide, Johnson testified she lost confidence in Brown because she disclosed confidential information to other people and did not respect Mrs. Johnson's personal and private life.

Gary Houck was terminated in October, 1987. Houck was 40 at the time of discharge. He had worked 20 years at Clay, and never received any written complaint or reprimand. According to one supervisor, Houck was "one of the best platemakers he had ever been around." Houck was replaced by Bowman (age 56 or 57), who had moved into the platemaking department one year prior to Houck's discharge. Bowman was replaced 16 months later by Steve Herman, age 35. According to Ned Lutz, Clay's vice-president of operations, Houck was terminated for sleeping on the job.

Lutz, who was involved in employment decisions at Clay, testified that "if a person had been there a good while, they made a higher salary, and so the contention was that our people made too much money, and so they made too much money for what they were producing. So therefore age was involved in that." Lutz also indicated that additional job pressures were placed on "longer tenured employees" and that "younger" employees were provided salary increases at the expense of the employees that "had been there longer." However, Lutz's testimony was a little more specific. When asked whether Scott attempted to control things on account of age, Lutz testified that he did not. Sipes testified that another Clay official told him that Clay needed to restructure its benefit and compensation packages to "attract newer, younger people."

However, each discharged claimant...