Pace v. Southern Ry. System

• Decision Date: 04 April 1983
• Docket Number: No. 81-8021,81-8021
• Parties: 31 Fair Empl.Prac.Cas. 710, 31 Empl. Prac. Dec. P 33,493, 12 Fed. R. Evid. Serv. 1369 Rayford C. PACE, Plaintiff-Appellant, v. SOUTHERN RAILWAY SYSTEM, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1383

701 F.2d 1383

31 Fair Empl.Prac.Cas. 710,

31 Empl. Prac. Dec. P 33,493,

12 Fed. R. Evid. Serv. 1369

Rayford C. PACE, Plaintiff-Appellant, v. SOUTHERN RAILWAY SYSTEM, Defendant-Appellee.

No. 81-8021.

United States Court of Appeals, Eleventh Circuit.

April 4, 1983.

William L. Hazleton, Augustine & Hazleton, Atlanta, Ga., for plaintiff-appellant.

Carey P. DeDeyn, Sutherland, Asbill & Brennan, Judith A. O'Brien, Atlanta, Ga., for defendant-appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This is an appeal from a grant of summary judgment in favor of defendant-appellee, Southern Railway System, in an action brought by Rayford C. Pace, plaintiff-appellant, under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. Secs. 621 et seq. Appellant alleged that appellee discriminated on the basis of his age in its decision to demote him. The court below, 530 F.Supp. 381, granted summary judgment, concluding that appellant had failed to establish a prima facie case of age discrimination. We affirm.

Appellant was first employed by Southern in 1944. Including two brief periods in which appellant left appellee's employ, ¹ he has been employed by Southern for over thirty years. During that period he held a variety of jobs. In January 1971, Pace was promoted to the position of Superintendent of the Signal and Electrical Department (S & E). S & E subsequently was merged with another department to form the Communications and Signals Department (C & S). The superintendent of the former Communications Department, J.T. Hudson (Hudson), became General Superintendent of Operations in the new C & S. Initially, appellant was Assistant General Superintendent--Operations in C & S but after one year was transferred to the position of Senior Construction Engineer. Appellant considered this transfer a promotion. In 1974, appellant was reassigned to the previous position of Assistant General Superintendent--Operations. He considered this a demotion. Near this time Hudson was promoted to Assistant Vice President of the C & S Department. F.H. McIntyre (McIntyre) was promoted to General Superintendent--Operations. Thus, Hudson was McIntyre's immediate superior and McIntyre was immediately above the appellant in the Southern Railway hierarchy.

Appellant retained his position as Assistant General Superintendent until November, 1978 when he was transferred to Senior Development Engineer in C & S. At this time appellant was fifty-one years old. Both parties and the court below have treated this transfer as a demotion. Appellant was replaced as Assistant General Superintendent by D.E. Barker (Barker), who was then forty-nine years old, had been with Southern for twenty-two years, and had been rated "competent" on his last performance appraisals. Barker, in turn, was replaced in his former position of Assistant Director of Engineering in C & S by A.L. White, age forty-five. In depositions reviewed in conjunction with the motion for summary judgment, McIntyre and Hudson asserted that the reason for the demotion was appellant's inability to carry out effectively the significant administrative responsibilities associated with the Assistant General Superintendent--Operations position. Appellee contends that appellant was aware of his superior's criticism of his administrative abilities. It alleges that McIntyre and Hudson discussed these difficulties with him on several occasions.

Appellant argues that he "recalls no discussions or criticisms of his job performance" from the date of a 1976 job performance appraisal until the notification of the demotion in 1978. ² The formal job appraisal in 1976, filled out by McIntyre, reflected that appellant's technical abilities were sound, criticized his administrative abilities and rated him overall as "adequate," the second lowest possible rating. Hudson later indicated the rating should be raised one category to "competent." Appellant attempts to refute the negative aspects of the appraisal by stating he "disagreed with the bulk of this assessment of his work." ³

In deposition appellant testified that he first learned of the extent of the dissatisfaction with his work in July, 1978 in a meeting with Hudson and McIntyre. There Hudson informed appellant that he intended to transfer him to another job. McIntyre indicated that this was the first he knew of any such decision but had been involved in previous discussions regarding Pace's allegedly inadequate performance. In September, McIntyre wrote a letter to Hudson suggesting Pace be given a different position involving fewer administrative duties and where his technical skills could be better utilized. The demotion to Senior Development Engineer occurred in November, 1978.

Appellant argues that the grant of the motion for summary judgment was error because material facts and factual inferences were in dispute and because, contrary to the district court's conclusion, he had established a prima facie case of age discrimination. Appellee contends that no prima facie case was established and that none of appellant's asserted issues of disputed fact are material in that none are probative of the material issue in the case: discrimination.

In granting appellee's motion for summary judgment, the district court concluded that appellant had failed to make out a prima facie case of age discrimination and, therefore, defendant was entitled to judgment as a matter of law.

Much time was consumed at oral argument and much space allotted in the briefs of both parties on the question of the proper test to be applied in determining whether a prima facie case has been established. Appellees argue that a four prong, McDonnell Douglas type test is appropriate in all cases other than those involving reduction-in-force. The McDonnell Douglas test was developed in context of suits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), ⁴ but has been applied in a slightly altered form to actions under the ADEA. Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir.1977). ⁵ See also Houser v. Sears, Roebuck & Co., 627 F.2d 756, 757 (5th Cir.1980). In order to establish a prima facie case of discrimination under this test, a plaintiff must prove (1) that he is a member of the protected group; ⁶ (2) that adverse employment action was taken against him, e.g. discharge, demotion, failure to hire; (3) he was replaced by a person outside the protected group; and (4) he was qualified for the position for which he was rejected. Price v. Maryland Casualty Co., 561 F.2d at 612. Cf. Simmons v. McGuffey Nursing Home, Inc., 619 F.2d 369 (5th Cir.1980); Marshall v. Westinghouse Electric Corp., 576 F.2d 588 (5th Cir.1978); Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 735-36 (5th Cir.1977) (test modified further in later cases where plaintiff discharged from previously held position; the prong requiring proof of qualification is removed and plaintiff must prove not only that the employer replaced him with someone outside the protected group but also specifically had sought to replace him with a younger person). ⁷

Appellee encourages application of this test because, as the district court found, appellant cannot show that he was replaced by one outside the protected age group. Appellant's replacement, Barker, was forty-nine years old at the time he replaced appellant. Thus, if the modified McDonnell Douglas test, as set forth in Price, supra, were the exclusive means of establishing a prima facie case under the ADEA appellant clearly could not succeed.

As the district court, the appellee, and the appellant all have realized, however, the McDonnell Douglas/Price test is not the sole method of establishing a prima facie case of age discrimination. Indeed in McDonnell Douglas the Supreme Court noted: "The facts necessarily will vary in Title VII cases, and the specification above the prima facie proof required ... is not necessarily applicable in every respect to differing factual situations." McDonnell Douglas Corp. v. Green, 411 U.S. at 802 n. 13, 93 S.Ct. at 1824 n. 13. The particular circumstances of some age discrimination cases require flexibility in analyzing whether a prima facie case has been established. The most obvious need for flexibility is present in reduction-in-force cases, where an employee is discharged and is not replaced at all, but alleges that his selection as the one to be discharged is motivated by discrimination based on his age. This court previously has recognized the need for flexibility in such cases. McCuen v. Home Insurance Co., 633 F.2d 1150 (5th Cir. Unit B 1981); McCorstin v. United States Steel Corp., 621 F.2d 749 (5th Cir.1980). McCuen stated:

Title 29 U.S.C.A. Sec. 623(a)(1) makes it unlawful for an employer 'to discharge any individual ... because of such individual's age.' Interpreting the statute so as to limit its protection to those instances when a covered employee is replaced by a non-covered employee would permit an employer to fire a 69-year-old employee solely because of his age and replace him with a 40-year-old. It would also afford no protection against discrimination on the basis of age when a work force is being reduced.

McCuen v. Home Insurance Co., 633 F.2d at 1151 (emphasis added).

As McCuen indicates, reduction-in-force situations are not the only instances in which the facts of a particular case will present a prima facie case even though the plaintiff was not replaced by one outside the protected age category. The particularly amorphous nature of age discrimination counsels against rigid application of a McDonnell Douglas/Price test.

A mechanistic application of the McDonnell prima facie test is especially dangerous in the context...