Smith v. Flax

• Decision Date: 09 April 1980
• Docket Number: No. 78-1201,78-1201
• Citation: Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980)
• Parties: 22 Fair Empl.Prac.Cas. 1202, 22 Empl. Prac. Dec. P 30,823 Thomas Clinton SMITH, Jr., Appellant, v. Dr. Alexander H. FLAX, Andree R. Barbeau and Institute for Defense Analyses, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1062

618 F.2d 1062

22 Fair Empl.Prac.Cas. 1202,

22 Empl. Prac. Dec. P 30,823

Thomas Clinton SMITH, Jr., Appellant, v. Dr. Alexander H. FLAX, Andree R. Barbeau and Institute for Defense Analyses, Appellees.

No. 78-1201.

United States Court of Appeals Fourth Circuit.

Argued Jan. 9, 1979.

Decided April 9, 1980.

John D. Grad, Alexandria, Va. (Leonard S. Rubenstein, Hirschkop & Grad, P. C., Alexandria, Va., on brief), for appellant.

Thomas M. Lemberg, Washington, D. C. (Leva, Hawes, Symington, Martin & Oppenheimer, Washington, D. C., William T. Freyvogel, Adams, Porter, Radigan & Mays, Arlington, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BUTZNER and RUSSELL, Circuit Judges.

HAYNSWORTH, Chief Judge:

The plaintiff sought damages for alleged violations of the Age Discrimination in Employment Act. His basic claims were submitted to a jury, which returned a verdict in his favor. Thereafter, however, the district judge granted the defendants' motion for judgment notwithstanding the verdict or, alternatively, for a new trial. The plaintiff appealed, and we affirm.

Prior to 1971 Smith had been employed by the Rand Corporation as an analyst. He had been working on problems of logistics, but became concerned about his continued employment by Rand when its work on logistical problems seemed to be running out. He sought employment by the Institute for Defense Analyses in its Systems Evaluation Division. It is a private, nonprofit organization engaged in analyzing high level management problems, primarily for the Department of Defense. It is a "think tank," employing professionals of varied backgrounds and talents and demanding of them a very high level of competence.

In early 1971 the director of the Systems Evaluation Division was looking for a logistician, and the Division had work for the Department of Defense involving logistics. Smith was employed. He was then fifty-two years old.

Annually, the professional employees of the Division are rated by the director. Early in 1972 Smith was given a rather high rating by the director. He noted that Smith's work had not until then produced a report, but he thought that Smith was well into the project and that his effort seemed to be effective. On a scale of 1 through 7, he rated Smith at 5.

The initial February 1972 rating of Smith seems to have been done by Director Andree Barbeau's predecessor, though that report also is signed by Director Barbeau. By January 1973, however, Barbeau had experienced some disappointment in Smith's performance. With Smith, he had attended a session to brief General Kent, the head of the Defense Department's Weapons System Evaluation Group (WSEG), the office within the Department of Defense which worked with the Division on most of its projects. General Kent, Mr. Barbeau and Mr. Smith all testified that Smith was unable to answer the General's questions in that session. Later, he did produce a draft of a final report of which General Kent and Mr. Martin of the Institute of Defense Analyses were quite critical, though, after some revision by another, it was later accepted.

In his January 1973 evaluation of Smith, Barbeau expressed his disappointment with Smith in his performance as leader in the Harrier Sortie Rate Project. He recorded his evaluation of Smith on that project as mediocre, and he gave him a general overall rating of 3, which is just about minimum requirements.

In January 1974, Barbeau again gave Smith an overall rating of 3. In the preceding year Smith had been working on problems of logistics. He noted Smith's attention to detail, his comprehension of complex computer outputs, and his patience in working with others. He noted his thought that Smith lacked imagination, however, and that he would not make a good project leader. He thought Smith's principal weaknesses were his inability to focus on important issues and to write and speak effectively on them. He expressed the thought that there would be a place for Smith in the Division as long as they had logistical work, but doubted that Smith was versatile enough to do other kinds of analyses.

In January 1975 Barbeau's rating of Smith dropped to 2, though his written evaluation was much the same as it had been in the preceding year. He thought that Smith was useful in the logistics field, but thought that he lacked versatility.

In 1976 Barbeau's rating of Smith dropped to 1. He said that Smith was a hard worker, but lacked the ability to focus on the more important aspects of a problem, and he tended to get lost in minutiae. A rating of level 1 means that job performance is considered unacceptable and not up to requirements.

When Smith had been working on logistical projects he had been under the general supervision of assistant director Freck. That work ran out in 1975, however, and he was put to work in a test and evaluation project under the general supervision of the other assistant director, Dr. Transue. Dr. Transue regarded Smith's work on that project as unacceptable, and he had recommended to Barbeau the rating of Smith at level 1. Since there were no more logistical projects, Smith was told in the spring of 1976 to look for other employment. He remained at the Division, however, until the fall of 1976 when he was terminated.

The managers of the Division, Barbeau, Freck and Transue, testified about their evaluations of Smith and the consultative processes which preceded them. They testified that in the field of logistics his work was acceptable, if not distinguished, but that his work in other fields was not acceptable. Dr. Flax, the president of the Institute for Defense Analyses, and other witnesses were of the same opinion. Of course, the defense witnesses testified that age had nothing to do with the low level of his salary increases during the period of his employment or his termination.

The decision finally to terminate his employment was based in substantial part upon the unacceptable rating he got for his performance on the Ewarval Project, and upon a conversation Barbeau had shortly before with Sylvia Waller, the Ewarval Project leader. Mrs. Waller wanted Smith's retention. She admired his industry and willingness to work late, and she was concerned about his finding employment. Barbeau asked her if she would accept Smith as a member of the team on any future project of which she was the leader. She replied that she would not, and Barbeau responded that her negative response provided her answer.

The plaintiff testified that he was a competent analyst who could work in fields other than logistics.

The plaintiff sought to support his estimate of his competence by testimony from two former associates at Rand, from a project officer from WSEG, and others within the Institute of Defense Analyses. Since the defendants offered the testimony of General Kent, a project officer from WSEG and others, there developed a conflict in the testimony about the acceptability of Smith's performance on the Harrier Project, but to the extent that these witnesses testified to Smith's competence, it arose out of observation of his work in the field of logistics. The plaintiff did offer the testimony of Mrs. Waller, who testified that she thought that Smith was not a poor analyst, but, since Smith's work had been dropped from the project of which she was the leader, she disclaimed any ability to express a general evaluation of him. To the extent that any praise should be found in her testimony, it was obliterated by the testimony of her conversation with Barbeau shortly before Smith's termination. She agreed that she had told Barbeau that she would not have Smith as a member of any team of which she was the leader.

Plaintiff contended that Barbeau improperly typecast him because of his age as possessing competence in a narrowly defined area. The evidence does not support this claim. Indeed, testimony from both sides indicated that plaintiff's expertise was narrow even within the field of logistics. For example, Mr. Davis, plaintiff's co-worker at Rand, stated that Smith was more adept at detailed logistics work than at broad...