Mitchell v. Worldwide Underwriters Ins. Co., 91-8737

• Decision Date: 04 August 1992
• Docket Number: No. 91-8737,91-8737
• Citation: 967 F.2d 565
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 754, 59 Empl. Prac. Dec. P 41,645 Clayton Earl MITCHELL, Sr., Plaintiff-Appellant, v. WORLDWIDE UNDERWRITERS INSURANCE COMPANY, a/k/a and a part of Worldwide Underwriters Insurance Group and Worldwide Insurance Group, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 565

967 F.2d 565

59 Fair Empl.Prac.Cas. (BNA) 754,

59 Empl. Prac. Dec. P 41,645

Clayton Earl MITCHELL, Sr., Plaintiff-Appellant, v. WORLDWIDE UNDERWRITERS INSURANCE COMPANY, a/k/a and a part of Worldwide Underwriters Insurance Group and Worldwide Insurance Group, Defendant-Appellee.

No. 91-8737.

United States Court of Appeals Eleventh Circuit.

Aug. 4, 1992.

C. Sam Thomas, P.C., Timothy J. Burson, Bovis, Kyle & Burch, Atlanta, Ga., for plaintiff-appellant.

Michael D. Kaufman, Robert H. Buckler, Alston & Bird, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and DUBINA, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

We here hold that a prima facie case for age discrimination is not established under the McDonnell Douglas test so as to avoid summary judgment for the employer when the terminated employee shows his work has been assigned to an independent contractor corporation, even though that corporation employs younger employees to do the work. Not having been replaced by an employee outside the protected age group, the plaintiff failed to meet that requirement of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Following the reduction-in-force alternative set forth in Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990), however, we perceive an issue of fact in this case as to whether there was another position open for which the plaintiff was qualified. We therefore vacate the summary judgment entered by the district court for the employer and remand for further proceedings.

Clayton Earl Mitchell was a 52-year-old senior field staff appraiser with Worldwide Underwriters Insurance Company when he was terminated on June 14, 1988. In 1987, Worldwide had been acquired by Capital Holding Corporation. After the acquisition, the Company decided to evaluate the cost effectiveness of each field staff appraiser. Allan T. Gray, Director of Technical Support, conducted the appraisals. Mitchell was evaluated and then terminated in 1988.

Alleging that he was terminated because of his age, Mitchell filed an action under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). The Company denied the allegation, contending that Mitchell was terminated because it was more cost effective to eliminate his position and assign the appraisals in his area to an outside independent contractor, Blocker and Associates, Inc. The district court granted summary judgment for the Company, holding that Mitchell had not established a prima facie case. Mitchell appeals.

This Circuit has adopted a variation of the test set out for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for cases under the ADEA. Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir.1989). Under this variation of the McDonnell Douglas test for establishing a prima facie case of discrimination, the plaintiff must show that he (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was subject to adverse employment action, (3) was replaced with a person outside the protected group, and (4) was qualified to do the job. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990). Although Mitchell established three parts of this test he did not show he was replaced by an employee of his company outside the protected age group, but rather contends the test is met because he was replaced by a corporation under 40 years of age and one that employs appraisers under 40 years of age. The parties have not cited, and we have not located, any cases holding that such assignment of work to an outside corporation is sufficient for a prima facie case. The district court correctly held this showing did not meet the requirements for establishing a prima facie case of age discrimination.

The McDonnell Douglas requirements are useful to test whether an employer treated older employees differently from younger employees. The discrimination against one employee in favor of another on the basis of age is the target of the inquiry. "Proof of discriminatory intent is an essential element of [a] prima facie case under a disparate treatment theory, although intent can in some situations be inferred from the mere fact of differences in treatment." Giles v. Ireland, 742 F.2d 1366, 1374 (11th Cir.1984).

Although the prima facie criteria of the McDonnell Douglas test are not intended to be rigidly required, "[a] prima facie case may be established only when there is a basis for inferring that discrimination is the reason for the employment decision...." Pace v. Southern Ry. System, 701 F.2d 1383, 1390 (11th Cir.), cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983). Here Mitchell does not establish that he was replaced by a younger employee of his company. Under such circumstances, it is not reasonable to infer that Mitchell's older age was a factor in the employment decision. See Carter, 870 F.2d at 583-84 & n. 14. This is not a case of an older employee being replaced by a subsidiary of the company which filled the position with a younger employee. Cf. Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir.1977) ("Even if one argued that [two other employees] collectively replaced [the plaintiff], in that they took over his duties, both were within the protected age group."). The fact that Mitchell's alleged replacement is an outside corporation under 40 years old or an outside...