Mitchell v. Data General Corp., 93-1238

• Citation: 12 F.3d 1310
• Decision Date: 22 December 1993
• Docket Number: No. 93-1238,93-1238
• Parties: 63 Fair Empl.Prac.Cas. (BNA) 816, 63 Empl. Prac. Dec. P 42,744 Donald R. MITCHELL, Plaintiff-Appellant, v. DATA GENERAL CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1310

12 F.3d 1310

63 Fair Empl.Prac.Cas. (BNA) 816,

63 Empl. Prac. Dec. P 42,744

Donald R. MITCHELL, Plaintiff-Appellant, v. DATA GENERAL CORPORATION, Defendant-Appellee.

No. 93-1238.

United States Court of Appeals Fourth Circuit.

Argued Oct. 1, 1993.

Decided Dec. 22, 1993.

R. Bradley Miller, Raleigh, NC, argued for plaintiff-appellant.

Laura Broughton Russell, argued (Cecil W. Harrison, Jr., on brief), Poyner & Spruill, Raleigh, NC, for defendant-appellee.

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

OPINION

NIEMEYER, Circuit Judge:

Donald R. Mitchell, one of four corporate managers of quality assurance for Data General Corporation, was discharged by Data General in November 1990 as part of a reduction-in-force. At the time Mitchell was 58 years old. Contending that age was a determining factor for his discharge, Mitchell sued Data General under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 621 et seq. The district court granted Data General's motion for summary judgment, concluding that the evidence presented was inadequate to establish that age was a determining factor in terminating Mitchell's employment. The court relied principally on the fact that the same officer of Data General who selected Mitchell for inclusion in the reduction-in-force had also hired Mitchell four months earlier.

Having reviewed the entire record presented to the district court, we agree that Mitchell failed to prove a claim for age discrimination under the ADEA. We therefore affirm.

I

Beginning in 1985, Data General, a manufacturer of computers, undertook a series of reductions-in-force due to economic pressure from increased competition in the computer industry. At that time it employed 17,700 persons. By November 1990, it had reduced its total number of employees to 9,700, and by September 1992, to 7,200.

Data General also began in the 1980's to restructure its organization to increase efficiency, moving quality control assurance from a plant level activity to a corporate-wide activity. Contemporaneously, it shifted the emphasis of quality control from a "policing" effort that had been conducted after production to an effort at improving how products were being manufactured, with the hope of "manufacturing out" quality control problems.

In early 1990, when Data General established the corporate quality assurance department, it appointed Rod Gilvey as director of the department. Gilvey organized the department, creating four upper level management positions that reported to him: customer assurance, product assurance, process quality, and quality assurance policy/administration. In the spring of 1990, Gilvey invited Mitchell to apply for the customer assurance manager position. At the time, Mitchell was quality control manager of the plant in Apex, North Carolina. He had moved to Apex in 1988 from the Data General plant at Clayton, North Carolina, where he began his career with Data General in 1979 as a quality engineering section manager. Although Mitchell was initially noncommittal, he was concerned that corporate restructuring would eliminate his current plant position, and he eventually submitted an application for the position of corporate manager of customer assurance.

Gilvey considered ten applicants for the position of customer assurance manager, including Mitchell. During the course of his interview with Mitchell, Gilvey told Mitchell that he was looking for someone who would energize the new quality assurance effort--a "zealot," "someone who has a vision, can effectively communicate that vision and stimulate others in order to achieve real results." According to Gilvey, self-motivation in the new position was required because of the change in focus of Data General's quality control program. After interviewing other applicants for the position, Gilvey selected Mitchell, who, at age 58, was the oldest of the group. The other candidates ranged in age from 33 to 44. Gilvey stated that although he was concerned about Mitchell's lack of enthusiasm about the position, he selected Mitchell because of his experience. When the new department was staffed with its four new managers, Gilvey admonished the four that he had high expectations and planned to give each of them no more than six months in which to produce results.

In the ensuing months, according to Data General, Mitchell did not live up to expectations. Gilvey and Ralph Hudson, Gilvey's superior and a divisional vice president, testified that among some of Mitchell's most important duties, he was required to take initiative and travel regularly to the various Data General facilities under his responsibility to evaluate the performance of Data General's products in the field. His evaluations were important in assisting company engineers to redesign the products. Mitchell was also required to meet with customers. Mitchell's supervisors expected that Mitchell would have to be out of town for these purposes approximately every two weeks. In particular, they expected that Mitchell would have to visit Data General's sales and marketing organization in Westboro, Massachusetts, to visit the field engineering organization in Atlanta, and to handle customer complaints wherever they arose. During the first four months at his new position, Mitchell traveled out of town three times, twice to the facility at Westboro, Massachusetts, and once to Washington, D.C., to help resolve a customer complaint. He never did visit the company's Atlanta facility. Moreover, Mitchell allegedly showed little enthusiasm for the new position. According to Data General, he tolerated poor performance from his employees, interfered with the chain of command of other employees, and expressed a lack of support for the goals of the new corporate quality assurance department. As Gilvey summarized, Mitchell was just "turning the crank" to maintain the status quo.

Mitchell has disputed the charges leveled at him by Data General, pointing to his history of positive job evaluations in his prior position at the Apex plant and asserting that he traveled as frequently as was required.

With the November 1990 reduction-in-force, Gilvey added Mitchell and another employee from the quality assurance department to the list of those selected for discharge, even though Gilvey had not been requested to identify any individuals to be included on the reduction-in-force list. Gilvey explained that when he saw "some of the caliber of talent that was being proposed to exit the business from some of the other departments," he decided to set forward two candidates from the quality assurance department whose performance indicated that they should be among the first to go. The other employee included by Gilvey was under 40.

Mitchell was thus discharged in November 1990, and the three other managers in quality assurance department were retained. Two of them were under 40, and the other was 44. Of the 44 persons discharged during this reduction-in-force, 25 persons were under the age of 40, and 19 were over 40.

II

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. Sec. 623(a)(1). To establish a claim, a plaintiff must prove, with reasonable probability, that but for the age of the plaintiff, the adverse employment decision would not have been made. Age must have been a determining factor in the employment decision. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 238 (4th Cir.1982). The burden of proof of an age discrimination claim may be satisfied, as with other types of discrimination claims, by direct evidence or by circumstantial evidence under a method of proof established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the McDonnell Douglas scheme, once the plaintiff proves a prima facie case of discrimination the burden of producing a legitimate explanation shifts to the defendant. If the defendant articulates a legitimate nondiscriminatory explanation which, if believed by the trier of fact, would support the conclusion that discrimination was not a determining factor in the adverse employment decision, the presumption created by the prima facie case "drops from the case," and the plaintiff bears the ultimate burden to prove that the defendant intentionally discriminated against the plaintiff. See St. Mary's Honor Center v. Hicks, --- U.S. ----, ----, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993); Fink v. Western Electric Co., 708 F.2d 909 (4th Cir.1983) (adopting the McDonnell Douglas scheme for use in ADEA cases). In meeting the ultimate burden the plaintiff may offer proof that the defendant's explanation was a mere pretext.

To establish a prima facie case of age discrimination under the ADEA with circumstantial evidence, the plaintiff must prove a set of facts which would enable the fact-finder to conclude with reasonable probability that in the absence of any further explanation, the adverse employment action was the product of age discrimination. See Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir.1991). In a typical discharge case, the plaintiff must show that (1) he was in the protected age group; (2) he was discharged; (3) at the time of the discharge, he was performing his job at a level that met his employer's legitimate expectations; and (4) following the discharge, he was replaced by an individual of comparable qualifications outside the protected class. See Lovelace, 681 F.2d at 238-39.

In the context of a reduction-in-force, however, where a group of employees is discharged because of the company's economic conditions, the third and fourth elements outlined in Lovelace become meaningless. The employees at the time of a reduction-in-force are usually meeting the employer's performance expectations,...