Rowell v. Bellsouth Corp.

• Decision Date: 20 December 2005
• Docket Number: No. 04-10753.,04-10753.
• Citation: Rowell v. Bellsouth Corp., 433 F.3d 794 (11th Cir. 2005)
• Parties: Norman E. ROWELL, Plaintiff-Appellant, v. BELLSOUTH CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

433 F.3d 794

Norman E. ROWELL, Plaintiff-Appellant, v.BELLSOUTH CORPORATION, Defendant-Appellee.

No. 04-10753.

United States Court of Appeals, Eleventh Circuit.

December 20, 2005.

Richard W. Fuquay, Richard W. Fuquay, P.C., Mobile, AL, for Rowell.

Chris Mitchell, Maynard, Cooper & Gale, P.A., Birmingham, AL, for BellSouth Corp.

Appeal from the United States District Court for the Southern District of Alabama.

Before CARNES and PRYOR, Circuit Judges, and FORRESTER^*, District Judge.

FORRESTER, District Judge:

Plaintiff, Norman E. Rowell, filed suit against BellSouth Corporation("BellSouth")¹ pursuant to the Age Discrimination in Employment Act("ADEA"), 29 U.S.C. §§ 621 et seq., contending that due to his age, BellSouth forced him to retire during a reduction in force.The district court found that Rowell's claim was meritless because he could not show that BellSouth constructively discharged him, and therefore Rowell did not suffer an adverse employment action.On appeal, Rowell contends that the district court erred in holding that a reasonable person would not have felt compelled to accept the voluntary severance plan offered by BellSouth because Rowell was convinced that if he did not accept voluntary severance, he would be terminated involuntarily.

Rowell was hired as a lineman by BellSouth in 1973.He later became a lineman foreman, a position he held until his retirement in 2002.In May 2002, BellSouth announced that it would undertake reduction in force of its management personnel.Rowell's supervisor explained that the reduction in force would take place in two stages.First, an enhanced voluntary package would be offered to employees.Depending on his years in service, if an employee accepted early retirement, he could receive a minimum of 50% and a maximum of 150% of his base salary, as well as other benefits.At the conclusion of the voluntary program, if not enough employees had retired, BellSouth would institute a second stage, involuntary reduction program to meet its workforce goals.The involuntary program would offer a minimum of 15% and a maximum of 100% of an employee's salary and reduced additional benefits.

To implement the reduction in force, BellSouth employees were divided into "universes," which were groups of employees with similar job descriptions.Rowell, age 52 at the time of the reduction, was in a universe with five other employees: Greg Sharpe, age thirty-seven; Ferdinand Williams, age forty; Doug Farnell, age fifty-three; Billy James, age thirty-one; and Gwen DeValk, age forty-seven.BellSouth determined that two positions in Rowell's universe would be eliminated.To be prepared in the event that additional cuts were needed at the second stage, BellSouth instructed managers to begin ranking and rating employees on each of six competency factors.The six factors were (1) Demonstrates Broad Business Knowledge and Savvy; (2) Achieves Results Through Speed and Decisiveness; (3) Maintains a Focus on Customer Satisfaction; (4) Instills Purpose and Vision; (5) Communicates Openly and Effectively; and (6) Builds High Performing Teams and Individual Talent.

If necessary, a certain number of the lowest ranking employees in each universe would then be cut during the involuntary second stage.All employees, including Rowell, were informed that depending on the number of employees that accepted the voluntary retirement in the first stage, it was possible that enough new job openings would be created so that an employee whose position was eliminated after the voluntary phase could be transferred within the company.Specifically, Les Durel, a manager in Rowell's chain of supervision, informed employees that it was likely that there would be positions available in Mississippi because the company was eliminating some part-time contract positions there and would need full-time hires to replace them.During the initial stages of the reduction in force, immediate supervisors were told not to disclose the actual ratings given to managers in the universe they ranked, but they were permitted to give managers an idea of whether they were at risk so that a manager could decide whether to take the voluntary package.

Rowell and Ferdinand Williams received the lowest scores in Rowell's universe.SeeRowell Depo., at 76-78.Doug Farnell, a year older than Rowell, received a score sufficient to place him in the top four positions in the group.Rowell then asked Carl Robitzsch, his immediate supervisor, whether he"needed to be looking for a job elsewhere," to which Robitzsch, responded, "yes."Seeid. at 69-70(Rowell testified he told Robitzsch, "I'm one of the kind of guys I just want to know.I don't want to sit here and think about it, I want to know ... was I one of the ones that needed to be looking for a job elsewhere, and he told me I was.").Rowell also testified that he and Robitzsch did have a discussion about "the potential for any jobs opening up elsewhere."Id. at 70-71.After speaking to the other members in his universe, Rowell learned that Williams would be taking early retirement but that Sharpe, Farnell, and James would not.Rowell never learned what DeValk intended to do.Seeid. at 76-77, 80-82.

When Rowell received the papers for the voluntary early retirement offer in mid-August 2002, he reviewed them carefully and even discussed them with his attorney.Seeid. at 51.He further testified that no one forced him to take the voluntary retirement and that he could have rejected the offer and taken his chances on finding something else within the company.Seeid. at 57-58, 75.He had no reason to believe he could not have been a candidate for the additional job openings that might be created by the voluntary first stage.Seeid. at 78-79, 118-19.In fact, Rowell asked Robitzsch to inform him if any other job openings became available at BellSouth.Seeid. at 70-71, 74.²After talking over his options with his attorney, Rowell signed the papers to accept the voluntary early retirement on September 6, 2002.Seeid. at 74-75.As part of his acceptance, he signed a waiver releasing any and all claims against BellSouth except for an ADEA claim.Seeid. at 86-88.

Rowell was separated on September 30, 2002 and received $91,500 in severance pay under the voluntary program.He also received a lump sum pension benefit of $188,000 because he was eligible for retirement.Rowell testified that because of the success of the voluntary program, he now understood that sufficient vacancies were created that he likely would have been able to transfer within BellSouth had he wanted to continue his employment.Seeid. at 122-23.

In support of his claim for age discrimination, Rowell testified that he believed Robitzsch had discriminated against him during the ranking process.Seeid. at 102.Rowell admitted, however, that other than the ranking scores, Robitzsch had never said or done anything to suggest he would discriminate on the basis of age.Seeid. at 103-04.Rowell also did not believe any other BellSouth employee discriminated against him.Seeid. at 104.He did not want to risk losing the half a year's pay that was only available to those who took the voluntary early retirement.Seeid. at 115.

The district court concluded that Rowell could not show he was constructively discharged because he could not have reasonably believed his only choices were retirement or discharge.The court recognized that Rowell's choice may have been a difficult one, but it was not "no choice" at all.Because the district court found that Rowell could not establish an adverse employment action, the court did not consider Rowell's alternative argument that he could establish BellSouth's legitimate nondiscriminatory reasons for the ranking were pretextual.Rowell then filed the instant appeal.

Although the district court found that Rowell failed to establish a prima facie case of age discrimination because he could not demonstrate he was constructively discharged, we may affirm the district court"on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below."Powers v. United States,996 F.2d 1121, 1123-24(11th Cir.1993).Many courts, in reduction-in-force cases, begin by considering whether it is being done in an age neutral way, presumably because a reduction in force generates adverse employment actions, which of course are quite lawful if not based on impermissible characteristics such as age.As the parties have briefed the contention that BellSouth discriminated against Rowell on the basis of age, we will begin at this point.

We review the grant of summary judgment de novo viewing the facts and drawing all reasonable inferences in favor of the nonmoving party.The "ADEA makes it `unlawful for an employer to fail to hire or to discharge any individual or otherwise discriminate against an individual ... because of that individual's age.'"SeeChapman v. AI Transport,229 F.3d 1012, 1024(11th Cir.2000)(en banc)(quoting29 U.S.C. § 623(a)(1)).

In Williams v. General Motors Corp.,656 F.2d 120(5th Cir. Unit B Sept.1981), we applied the prima face case of age discrimination to a reduction in force case and found the elements to be a plaintiff who is (1) within the protected age group, (2) adversely affected, (3) qualified to assume another position at the time of discharge, and (4)"evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue."Id. at 129.To satisfy the last prong, we elaborated that the "plaintiff[must] produce some evidence that an employer has not treated age neutrally, but has instead discriminated based upon it.Specifically, the evidence must lead the factfinder reasonably to conclude either that the defendant(1) consciously refused to consider retaining or relocating a plaintiff because of his age, or (2)...