Henson v. Liggett Group, Inc.
| Citation | 61 F.3d 270 |
| Decision Date | 09 August 1995 |
| Docket Number | No. 94-2440,94-2440 |
| Parties | 68 Fair Empl.Prac.Cas. (BNA) 826 Shirley S. HENSON, Plaintiff-Appellant, v. LIGGETT GROUP, INCORPORATED, d/b/a Liggett & Myers Tobacco Company, Inc., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Stewart Wayne Fisher, Glenn, Mills & Fisher, P.A., Durham, NC, for appellant. John R. Long, Newsom, Graham, Hedrick & Kennon, P.A., Durham, NC, for appellee. ON BRIEF: Joel M. Craig, Newsom, Graham, Hedrick & Kennon, P.A., Durham, NC, for appellee.
Before ERVIN, Chief Judge, and RUSSELL and LUTTIG, Circuit Judges.
Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge RUSSELL and Judge LUTTIG joined.
Shirley S. Henson appeals from the district court's grant of summary judgment on her employment discrimination claims against her employer, Liggett Group, Inc., ("Liggett") under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. Sec. 621 et seq., the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. Sec. 1001, and the North Carolina Equal Employment Practices Act, N.C.G.S. Sec. 143-422.1. Because we find that the employer is entitled to judgment as a matter of law, we affirm the district court's grant of summary judgment.
Henson was a Liggett employee from 1975 through 1992. Her last position with the company was a clerical job in the Freight Payables Department, in which she processed and paid invoices from freight companies and warehouses. In 1986, Bennett LeBow purchased Liggett and became chairman. Five years later, Liggett began restructuring several departments, as well as the company's retirement plans. In March 1992, senior management at Liggett--including the president, vice-presidents, general counsel, director of logistics, and Lebow--met to discuss the company's financial situation. The group, in conjunction with their discussions about downsizing, acknowledged that downsizing might possibly effect age discrimination claims.
Henson was notified on May 14, 1992, that her job would be eliminated and her department outsourced, i.e., contracted to an independent contractor. Plaintiff was fifty years old at the time, five years away from being able to retire with full benefits. If Henson elects to receive retirement benefits before she reaches age sixty-five, she will receive approximately forty percent of the full amount. Henson is still eligible to receive her fully vested benefits at age sixty-five.
After being informed that her position would be eliminated, Henson spoke with various management level employees about other possible job openings at Liggett in an attempt to remain employed at the company until her retirement benefits fully vested at age 55. She spoke with the Personnel Manager, Sue Latta, and the Manager of General Accounting, Sam Veasey. She also spoke to the president, the vice-president for finance, the vice-president for human resources, the manager of operations accounting, and the director of credit operations. Despite her efforts, she was unable to secure another job within the company.
Henson contends that she deserved an opportunity to compete for the position of Accounting Clerk II in General Accounting. 1 A thirty-nine year old African-American, Marilyn Oliphant, was initially hired to fill the Accounting Clerk II position as a temporary worker in late 1990 or early 1991. In July of 1992, at Veasey's request, Oliphant's status was changed to that of a regular full-time employee. Veasey completed a personnel requisition form that listed only Oliphant under the heading "candidates." No one other than Oliphant was considered for the Accounting Clerk II position. The position was not posted as a job opening, no applications were accepted for the position, and Henson did not apply for the position. Senior Vice-President Mark Stewart approved the personnel requisition form. Prior to the acceptance of her offer, Oliphant never completed an application form. She did so two days after receiving the job.
Sue Latta, who was in charge of the Job Posting Program and who, according to Henson, had been sensitive to the importance of posting jobs and possible age discrimination claims, stated that the accounting clerk position was not posted because the company was filling a temporary job. Liggett's posting policy allows it to reserve the right not to post a position if there is a reason not to do so. Henson testified she knew that Liggett did not always post jobs.
After Henson discovered on July 22, 1992, that Oliphant had been given the permanent position, Henson spoke with Rolly Allen, Liggett's Vice President for Human Resources. Allen told Henson that though she was considered for the position, "the person doing the hiring felt like [Oliphant] had more skills than you." Upset that she was not given a chance to compete for the position, Henson filed a complaint with the EEOC on August 21, 1992, attaching an eight page letter discussing her termination and her attempts to find another position at Liggett. On her EEOC intake form, she wrote that the particular discriminatory action about which she was complaining was that "a temp was hired in a job I felt I could have done." The EEOC charge, which was filed on November 16, 1992, stated only that the "company discriminates against persons over 40, as a class, in the areas of discharge and layoff." Dissatisfied with the EEOC's investigation, Henson filed this lawsuit in March 1993 and the EEOC stopped its investigation of the charge at her request. 2 The district court granted Liggett's motion for summary judgment, finding that Henson failed to establish a prima facie case of discrimination based upon her age or her entitlement to early retirement benefits.
We review grants or denials of motions for summary judgment de novo on appeal. Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.1993). If there is no genuine dispute as to a material fact, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An employer is entitled to summary judgment if the plaintiff fails to establish a prima facie case of discrimination or fails to raise a factual dispute regarding the employer's proffered reasons for the alleged discriminatory act. Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir.1993); E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 944 (4th Cir.1992). In Clay Printing, we noted that "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 943 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986)). In order to establish a claim under the ADEA, a plaintiff must show that "but for the employer's motive to discriminate against plaintiff on the basis of age," the discriminatory action would not have occurred. Clay Printing Co., 955 F.2d at 940.
Because Henson admits that she has no direct evidence of Liggett's intent to discriminate against her on the basis of her age or her eligibility for retirement benefits, she relies upon the indirect, burden-shifting method of proof developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir.1982) (). Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence. St. Mary's Honor Center v. Hicks, --- U.S. ----, 113 S.Ct. 2742, 125 L.Ed.2d 407, 415 (1993) (citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981)). 3 To establish a prima facie case, the plaintiff must prove (1) that she is a member of the protected class, i.e., at least 40 years old; (2) that she was qualified for a job for which the employer was seeking applicants; (3) that she was rejected despite her qualifications; and (4) that the position remained open and the employer continued to seek or accept applications from persons with her qualifications outside the protected class. Clay Printing Co., 955 F.2d at 941; Ritter v. Mount St. Mary's College, 814 F.2d 986, 992 (4th Cir.) (citing McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)), cert. denied, 484 U.S. 913, 108 S.Ct. 260, 98 L.Ed.2d 217 (1987).
Establishing a prima facie case raises only an inference of discrimination. The defendant can then offer legitimate nondiscriminatory explanations for the allegedly discriminatory acts. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Tuck v. Henkel Corp., 973 F.2d 371, 375 (4th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1276, 122 L.Ed.2d 671 (1993). The employer is not required to prove the absence of a discriminatory motive because the burden is one of production, not persuasion. See Hicks, --- U.S. ----, ----, ----, 113 S.Ct. 2742, 2747, 2749, 125 L.Ed.2d 407, 416, 418; EEOC v. Western Electric Co., 713 F.2d 1011, 1014 (4th Cir.1983). The plaintiff must then bear the "ultimate burden of persuasion" and show by a preponderance of the evidence that the defendant's explanations are pretextual or otherwise unworthy of credence. Hicks, --- U.S. at ---- - ----, 113 S.Ct. at 2749-50, 125 L.Ed.2d at 418-419; Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.1989).
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.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, Henson must produce...
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