McLawhorn v. John W. Daniel & Co., Inc., 90-1748

• Citation: 924 F.2d 535
• Decision Date: 26 February 1991
• Docket Number: No. 90-1748,90-1748
• Parties: 55 Fair Empl.Prac.Cas. 139, 55 Empl. Prac. Dec. P 40,525, 18 Fed.R.Serv.3d 1464 Lester C. McLAWHORN, Plaintiff-Appellant, v. JOHN W. DANIEL & COMPANY, INCORPORATED, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 535

924 F.2d 535

55 Fair Empl.Prac.Cas. 139,

55 Empl. Prac. Dec. P 40,525, 18 Fed.R.Serv.3d 1464

Lester C. McLAWHORN, Plaintiff-Appellant, v. JOHN W. DANIEL & COMPANY, INCORPORATED, Defendant-Appellee.

No. 90-1748.

United States Court of Appeals Fourth Circuit.

Argued Dec. 3, 1990.

Decided Jan. 30, 1991.

As Amended Feb. 26, 1991.

Jay J. Levit (argued), Levit & Mann, P.C., Richmond, Va., for plaintiff-appellant.

John S. Barr (argued), James A. Lofton, Yvonne S. Wellford (on brief), Maloney, Yeatts & Barr, P.C., Richmond, Va., for defendant-appellee.

Before RUSSELL and SPROUSE, Circuit Judges, and TILLEY, United States District Judge for the Middle District of North Carolina, sitting by designation.

PER CURIAM:

Lester C. McLawhorn brought an age discrimination claim, under the Age Discrimination in Employment Act, in federal district court against his former employer, John W. Daniel and Company (Daniel). Daniel moved for summary judgment and, after a hearing, the Court granted this motion. McLawhorn did not appeal the grant of summary judgment, but instead, three and one-half months later, moved for relief from this order under Federal Rule of Civil Procedure 60(b). The district court ruled against this 60(b) motion, and, finding that the court did not abuse its discretion, we affirm.

I.

On June 12, 1987, after thirty-one years of employment, plaintiff McLawhorn, then sixty-one years old, was terminated from his job as a construction superintendent for defendant Daniel. According to the affidavits of Daniel's president (John P. Wall) and regional vice-president (Samuel W. Daniel), McLawhorn was let go because of his poor safety record and his poor job performance.

McLawhorn filed suit against Daniel on May 11, 1989, alleging that he had been fired because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621 et seq. Daniel thereafter moved for summary judgment and submitted the affidavits of Wall and Daniel. After a hearing on October 4, 1989, the United States District Court for the Eastern District of Virginia granted defendant's motion.

In attempting to make out the required prima facie case of age discrimination needed to defeat the summary judgment motion, McLawhorn did not proffer any extrinsic, independent evidence of the discrimination, but instead relied on the judicially fashioned affirmative proof scheme established for such cases. Under this scheme, in order for the plaintiff to establish a prima facie case of discrimination, he must submit evidence showing:

(1) the plaintiff is in the protected age group; (2) the plaintiff was discharged or demoted; (3) at the time of discharge or demotion, the plaintiff 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.

EEOC v. Western Electric Co., 713 F.2d 1011, 1014 (4th Cir.1983); Goldberg v. B. Green and Co., 836 F.2d 845, 849 (4th Cir.1988).

The court in its findings of fact and conclusions of law found that McLawhorn did not satisfy prongs three and four of this test. On the third prong, the district court compared the two affidavits submitted by defendant with job appraisals and salary information offered by McLawhorn. The court found that much of McLawhorn's evidence was not relevant because it concerned time periods before McLawhorn's work performance began to deteriorate. By contrast, McLawhorn's own evidence showed that on November 1, 1986, seven months before his dismissal, the company was very concerned about his performance; also, in 1987 McLawhorn was the only salaried employee of Daniel not to receive a pay raise. As for prong four, McLawhorn did not offer any evidence to show that he had been replaced by someone outside the forty-plus protected class. In fact, of the sixteen superintendents employed by Daniel, the five under forty were hired before McLawhorn's dismissal and the three hired since then have all been above forty.

After finding that McLawhorn had not established the required prima facie case of age discrimination, the district court went on to assume, arguendo, that such a case had been established. The court then looked at Daniel's proffered evidence that McLawhorn had been fired for legitimate, non-discriminatory business reasons and compared this with McLawhorn's responses to such evidence. Through the affidavits of its president and regional vice-president, the company offered evidence to show that during his last project, as job superintendent on the construction of the Virginia Education Loan Authority operations center in Richmond, McLawhorn would not leave the office trailer in order to supervise and coordinate the work of Daniel's employees and subcontractors. Because of this, many problems developed and the project was completed three months late with a decrease in gross profit to Daniel from $150,000 to $67,000 and an assessment of liquidated damages against Daniel for $21,500. Additionally, during this project Daniel was cited for numerous serious safety violations which resulted in a fine of $1,400. To rebut this evidence, all McLawhorn did was to argue, but not present evidence to prove, that his performance in regard to safety was no worse than any other superintendent. After viewing this evidence, the court found that even had a prima facie case of discrimination been presented, Daniel would have still been entitled to a grant of summary judgment.

McLawhorn did not appeal the summary judgment order, but instead, on January 26, 1990, filed a motion for relief from this order pursuant to Fed.R.Civ.P. 60(b). In this motion, plaintiff alleged that "Defendant did not permit Plaintiff to review its records as directed by the Court until the day before the hearing on the motion for summary judgment," and that "Defendant failed to make available to Plaintiff all of the documents which were responsive to Plaintiff's Request for Production of Documents." Both sets of documents, those which McLawhorn did not review until the day before the hearing and those Daniel supposedly never made available, concerned safety inspection records pertaining to Daniel construction jobs for which McLawhorn did not act as superintendent. This evidence would supposedly demonstrate that other Daniel superintendents had safety records as poor as or poorer than McLawhorn's. Attached to plaintiff's motion was an affidavit from Barbara Ashby, Daniel's former safety director, asserting that to the best of her knowledge there should have existed more safety records than those turned over by Daniel to McLawhorn. In response to this motion, Daniel presented the affidavit of Howard J. Burnette, its in-house counsel, who swore that to the best of his knowledge all documents requested by McLawhorn had been made available and that there existed no other safety records.

On March 6, 1990, the district court entered an order denying McLawhorn's motion for relief pursuant to Rule 60(b). The court so ruled for three independent reasons: (1) the motion was not...