Slusher v. ARLINGTON COUNTY, VA.
| Decision Date | 23 November 1987 |
| Docket Number | Civ. A. No. 87-0050-A. |
| Citation | 673 F. Supp. 752 |
| Parties | Stewart SLUSHER, Plaintiff, v. ARLINGTON COUNTY, VIRGINIA, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Susan L. Korfanty, Alexandria, Va., for plaintiff.
Peter H. Maier, Asst. Co. Atty., Arlington, Va., Scott S. Cairns, McGuire, Woods, Battle & Boothe, Richmond, Va., for defendant.
This case came before the Court on the defendant's post-trial motion for judgment notwithstanding the verdict ("judgment n.o.v."), in an age discrimination case brought under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq. The case was tried to a jury on the plaintiff's claims of age discrimination and retaliation committed by his employer, the defendant Arlington County.
The jury initially returned a verdict for the plaintiff in the amount of $1.00 damages, with a finding that the ADEA violation was willful. This Court refused to accept that verdict and re-submitted the issue to the jury, because the parties had stipulated the amount of any back-pay damages to be $886. The jury then returned its second verdict for the plaintiff, this time with damages in the amount of $886, but with a finding that the discrimination was not willful.
The defendant Arlington County now moves pursuant to Rule 50, Fed.R.Civ.P., for judgment n.o.v., or alternatively for a new trial, arguing that the plaintiff failed to establish a prima facie case of age discrimination or retaliation. Arlington further contends that, even if the plaintiff did make out a prima facie case, the evidence was legally insufficient to support an inference of an ADEA violation.
For the reasons stated below, this Court concludes that the plaintiff has failed to produce sufficient evidence from which a jury could properly infer age discrimination or retaliation. This Court therefore grants the defendant's motion for judgment n.o.v. and now enters judgment in favor of Arlington County.
In deciding a motion for judgment notwithstanding the verdict, the question for the Court is "whether there is evidence on which the jury could properly base a verdict." The Fourth Circuit has further defined the standard as follows:
In determining whether the evidence is sufficient the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.
Lynch v. Universal Life Church, 775 F.2d 576, 580 (4th Cir.1985); Whalen v. Roanoke County Bd. of Supervisors, 769 F.2d 221, 224 (4th Cir.1985); citing 9 Wright & Miller, Federal Practice and Procedure § 2524, at 543-45 (1971).
In discrimination cases specifically, the Fourth Circuit has recognized "the danger that the jury will reach a decision on the basis of mere speculation, in light of the demonstrated difficulty in choosing rationally between `mere possibility' and `substantial probability,' by impermissible but understandable resort to factors such as sympathy." Foster v. Tandy Corp., 828 F.2d 1052, 1056 (4th Cir.1987). To guard against this danger, the Court of Appeals has noted that "the burden of producing rationally probative evidence — and the corresponding risk of nonproduction — is placed upon the claimants and subjected to the ultimate jury control devices of directed verdict and judgment n.o.v." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241-42 (4th Cir.1982); Foster v. Tandy Corp., 828 F.2d at 1056.
Finally, "only evidence which shows the `probability' and not mere `possibility' of discriminatory motivation will allow jury consideration." Foster v. Tandy Corp., 828 F.2d at 1056; Lovelace, 681 F.2d at 241-42. When the jury is deciding the issue of motivational cause, "the inferences it draws to reach its verdict must be reasonably probable; mere speculation is insufficient." Hill v. BASF Wyandotte Corp., 782 F.2d 1212 (4th Cir.1986); Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir.1987). With this standard of reasonable probability in mind, this Court next turns to the elements necessary for an ADEA case.
In a suit under the ADEA, the plaintiff may establish his claim of discrimination by providing either direct evidence, or sufficient indirect evidence, of his employer's discriminatory motivation. Ballinger v. N.C. Agricultural Extension Service, 815 F.2d 1001, 1005 (4th Cir.1987); Lovelace, 681 F.2d at 239 (4th Cir.1982). The plaintiff Slusher has offered no direct evidence of improper motive, so the Court must look to other facts in reviewing this issue.
In the absence of such direct evidence, the plaintiff may establish a prima facie case through indirect or circumstantial evidence showing "(i) that he was at the time of demotion `performing his job at a level that met his employer's legitimate expectations' and (ii) that following his demotion his employer sought someone to perform the same work." Lovelace, 681 F.2d at 239 (citing Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979)). And because Slusher's claim also alleges retaliation, he must further prove that "a causal connection existed between the protected activity and the adverse action here, his demotion." Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985); Smalley v. City of Eatonville, 640 F.2d 765, 769 (5th Cir.1981).
Finally, the Supreme Court and courts of appeals have fashioned a scheme of shifting burdens of proof, which serves to sharpen and focus the issues in discrimination cases. Lovelace, 681 F.2d at 239-41. This scheme, announced by the Supreme Court in the context of Title VII cases, has since been adapted and applied to the circumstances of ADEA claims. Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113 (4th Cir.1981); Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir.1979) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
The Supreme Court has most recently described this burden of proof arrangement as follows:
First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection" ... Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981). And this rule governing the order and burdens of proof applies to age discrimination claims arising under the ADEA. See Ballinger, 815 F.2d 1001, 1005-06 (4th Cir.1987); Lovelace, 681 F.2d at 239.
Given the evidence introduced at trial, this Court must grant the defendant's motion for judgment n.o.v., on two grounds. First, Slusher failed to produce sufficient evidence to state a prima facie case of discrimination or retaliation. He did not show that he was performing the job satisfactorily and up to his employer's legitimate expectations. In fact, all the evidence showed quite the opposite. Neither did he prove that following his demotion, Arlington County sought someone else to perform the same work. Furthermore, as to the retaliation charge, Slusher wholly failed to prove that there was any causal connection between his prior grievances and EEOC complaints, and his ultimate demotion.
Second, even assuming arguendo that Slusher had made out a prima facie case, the undisputed facts still showed that Slusher was not qualified for and did not perform satisfactorily in his new promoted position. The facts also showed that this was the reason why Slusher was eventually demoted. Arlington County provided abundant and overwhelming evidence to support its "legitimate, nondiscriminatory reason" for demoting Slusher out of the supervisory position. And Slusher has not offered any probative evidence for suspecting this stated reason of being a mere pretext for discriminatory or retaliatory motives. For this reason as well, the record fails to support Slusher's verdict and judgment must be entered for Arlington County.
The County introduced extensive evidence, both documentary and testimonial, to show that Slusher's performance in the new supervisory position of Inspector IV was deficient. After Slusher had filed several grievances in 1984 and 1986, the Arlington County Civil Service Commission ordered that he be promoted. He was then promoted by the County to the level of Inspector IV, even though the EEOC had found that his claims of age discrimination were "not substantiated." Slusher had previously applied for this Inspector IV position, but the interview panel found that he was not the most qualified applicant. As the defendant points out, Slusher's own testimony shows that his experience and qualifications did not fully satisfy the Inspector IV requirements.
For example, while he had been a Plans Examiner for some 12 years, he had not conducted field inspections. Further, because he skipped over the normal ranks leading to Inspector IV, he had not taken the generally required BOCA general building and fire inspection tests. And he failed to take these tests during his 18-month probationary period as an Inspector IV. Slusher also admitted that he had no recent supervisory or managerial experience, even though the Inspector IV job was a supervisory role.
Moreover, the testimony of Slusher's superiors and fellow co-workers revealed that...
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Harmer v. Virginia Elec. and Power Co.
...and applied to claims brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. See Slusher v. Arlington County, 673 F.Supp. 752 (E.D.Va. 1987). 15 In addition, it is arguable that Harmer has not suffered an adverse employment action, and therefore cannot estab......