*1 telling partial truths each time Bush explain purchases. Howev- she tried to
er, on other occa- Bush’s evasive behavior inter- explanations.
sions belied those When
viewed the ATF in Bush “would not
say weapons implied were” but where the
that she knew where were. PSR
¶7. April interviewed on When
however, expressed “Ms. Bush that she no guns at
longer knew where the were.” PSR ¶ Along explana- inconsistent 7. with the gave, Bush also told the district
tions she why pur-
court that she did not know she guns. app.
chased the 93.
Moreover, court’s decision to the district groups
divide the offense conduct into three supported by timing offenses. Griswold, (improper
Cf. group “purchases possession eight handguns spanning
semi-automatic in excess years.”). reproduce chart two The purchases
above demonstrates Bush’s activity. separate
occurred bursts of properly
The district court relied that fact finding its of three motives. judgment of conviction and sentence 17,1994,
entered on will be affirmed. October O’CONNOR, Plaintiff-Appellant,
James
CONSOLIDATED COIN CATERERS
CORPORATION, Defendant-
Appellee,
Equal Employment Opportunity
Commission, Amicus
Curiae.
No. 94-1214. Appeals,
United States Court
Fourth Circuit.
Argued 1995. Jan. April
Decided 1995. Opinion
Amended June
Haynsworth, Baldwin, Greaves, Johnson & P.A., Charlotte, NC, defendant-appellee. for LUTTIG, Before HAMILTON Circuit BUTZNER, Judges, and Senior Circuit Judge. by published opinion.
Affirmed Judge opinion, HAMILTON wrote the in which Judge joined. LUTTIG Judge Senior BUTZNER separate opinion, wrote a concurring part dissenting part. OPINION HAMILTON, Judge: Circuit (O’Connor) James brought against claim Consolidated Coin Caterers (Consolidated) Corporation pursuant Age Discrimination in Employment Act (ADEA), (West §§ 29 U.S.C.A. Supp.1994), & contending that Consolidated terminated him age. his granted summary district court judgment in Consolidated, favor of holding that O’Connor could not succeed on his claim of discrim- ination. We affirm.
I. operates Consolidated cafeterias and vend- primarily machines for use industrial businesses, plants, schools and health care Although separately incorporated, facilities. operates as a division of its (Can- parent company, Corporation Canteen teen). In general O’Connor was the manager region of Consolidated’s northern North, known as 4Cs which was centered in Raleigh, Carolina, North and served north- ern Virginia; North Carolina and southern (Williams) Edward Williams was O’Connor’s supervisor, direct reported and Williams George Daly, George Daly, ARGUED: (Arts), Ted Arts President Canteen’s Cen- P.A., Charlotte, NC, plaintiff-appellant. for tral Division. Sloan, E.E.O.C., Barbara L. Washington, DC, for amicus curiae. James Bernard opera- Canteen restructured its Jr., Spears, Baldwin, Haynsworth, Johnson geographic tions so as to have three territo- Greaves, P.A., Charlotte, NC, & for defen- ries instead of four. As a result of this dant-appellee. Samek, reorganization, ON BRIEF: general Sharon O’Connor became the Daly, P.A., Charlotte, NC, George South, plain- manager for of 4Cs which was based in Jr., tiff-appellant. Neely, Charlotte, Carolina, Deputy James R. North south- served Counsel, Gwendolyn Reams, Carolina, Gen. Young As- ern and western North as well as Counsel, Davis, Carolina, sociate Gen. and Lorraine C. northern South and Mike Kiser (Kiser) Counsel, E.E.O.C., Washington, Asst. Gen. of Consolidated took over O’Connor’s DC, Modla, job general manager amicus curiae. Jacob J. as of 4Cs North. Allen (Finnell), (Hunter) July reassigned and Ted Finnell On Hunter Canteen, respectively geographic territories from O’Connor employees of remained Kiser, resulting following manage- in the managers of Canteen’s Greensboro/Ra- Greenville/Spartanburg operations. ment scheme:
leigh and
Hunter
Kiser
*3
Manager
Manager
Manager
4Cs South
North
Canteen
4Cs
Burlington
Raleigh
Greensboro
Charlotte
Laurinburg
Shelby
Smithfield
Tarboro
Hickory
Asheville
Albemarle
South Boston
Consolidated,
consequence
reorganization,
According to
Williams reas- As a
of this
signed the territories from O’Connor to Kiser
10, 1990, O’Connor,
August
age fifty-six, was
responding
O’Connor was slow in
to
Hunter,
discharged,
age fifty-seven,
and
problem
accounts. When
decision was
demoted.
made,
did not know that
Arts
new,
Having
large districts,
created two
planning
reorganization
another
to consoli-
Finnell,
forty,
manage
Williams chose
to
operations.
date
and
Canteen
Consolidated’s
District,
Kiser, age thirty-
the Southern
subsequent
July
Sometime
five, manage
the Northern District. Ac-
Williams, informing him
Arts contacted
Consolidated,
cording
selecting
crucial to
reorganize
he wanted to
Canteen and Consol-
operations in North and
managers
idated’s
South Car-
for the new districts was the
operating
olina to reduce
costs under the
substantially greater
fact
there were
following terms: combine Consolidated with management responsibilities than had been
opera-
Canteen’s North and
Carolina’s
South
required
previous organizations
under the
single, larger geographic
tions into a
territo-
substantially larg-
and the new districts were
ry,
territory managed by
have this new
geographic
iner
area. Williams asserted he
Williams, and have Williams combine the
selected Finnell
Kiser because he was
Finnell,
management responsibilities of
Kis-
superior,
Finnell’s former direct
had first-
er, Hunter,
Subsequently,
and O’Connor.
knowledge
hand
of both men’s work and
territory
Williams decided to divide this new
abilities,
competent
and considered them
newly-organized
into two
districts:
greater responsibilities
larger
handle the
serving
Northern District
northern North
geographic territory.
Virginia,
Carolina and southern
and the
serving
Southern District
southern North
Consolidated,
According to
it did not select
Carolina and all of South Carolina. These
manage
O’Connor to
one of the two new
substantially larger
two new districts were
greater
districts because
served a
num-
geographic territory
previous
than under the
customers,
accounts,
ber of
entailed more
organizations.
August
In
this new
substantially larger geographic
covered a
Region”
organized
“Carolinas
as follows:
territory,
respond-
and O’Connor was slow in
CAROLINAS REGION
problem
accounts. Consolidated as-
Finnell
Kiser
selecting
that a critical factor in not
serted
Southern District
Charlotte
Northern District O’Connor was the fact that even before the
Burlington
reorganization,
second
Williams had reduced
Shelby
Laurinburg
Smithfield
territory
the size of O’Connor’s
from six ter-
Tarboro
Raleigh
Greenville
ritories to three. Given that O’Connor was
Spartanburg
Greensboro
already-reduced territory,
slow with his
Con-
Columbia
Hickory
South Boston
solidated concluded that he could
handle
Also,
larger region.
an even
Asheville
timely
Albemarle
that O’Connor had
re-
asserted
242, 248, 106
problem involving
delivery
sponded
to a
food
S.Ct.
unrefrigerated
trucks.
whether a
issue
raised,
of material fact has been
we
Discrediting
Consolidated’s reasons
must construe all
inferences in favor of
him,
terminating
O’Connor asserted
he
257-58,
O’Connor. See id. at
106 S.Ct. at
discharged
age;
because of his
conse-
If, however,
2514-15.
“the evidence is so
quently,
brought
suit under the ADEA.
party
one-sided that one
prevail
must
as a
granted summary judg-
The district court
law,”
matter of
grant
must affirm the
Although
ment
favor of Consolidated.
summary judgment
party’s
in that
favor. Id.
observing
typical
that this case was not the
251-52, 106
S.Ct. at 2512. O’Connor “can
reduction-in-force case characterized mass
not create a
through
issue
fact
layoffs, because here the reduction consisted
*4
speculation
building
mere
or the
of one infer
only
O’Connor and Hunter and O’Connor
upon
ence
another.”
Hardy,
See Beale v.
essentially replaced by Finnell,
the dis-
(4th Cir.1985).
769 F.2d
To survive
applied
trict court nevertheless
the modified
motion,
may
Consolidated’s
O’Connor
Douglas four-prong
McDonnell
test
used
pleadings,
rest on his
but must demonstrate
reduction-in-force suits and concluded that
specific,
give
material facts exist that
prima
O’Connor
a
failed
establish
facie
rise to a
issue.
Corp.,
See Celotex
any
case
present
because O’Connor failed to
vit Phillip of a former Dennis Contending that his was ter (Dennis). trial, Because there had no been minated age, because of his O’Connor grant summary judgment, but a the dis- brought against pursu suit trict court construed O’Connor’s motion as ant to the ADEA. In order to establish his judgment one for relief from newly- based on claim, rely may on the normal discovered evidence denied it. See Fed. succeeding by methods of aon civil suit R.Civ.P.60(b)(2). appeal This followed. establishing by preponderance a evi dence but for Consolidated’s motive to
II. against age, discriminate him because of his 56(e) requires Rule that the district court discharged. would not have been who, judgment against party enter “after Lovelace v. Sherwin-Williams (4th Cir.1982). adequate discovery time for ... “may fails to make showing sufficient to ordinary establish the existence meet this burden under the stan case, of an element party’s proof by essential to that dards of direct or indirect evidence party sufficiently and on which that will bear the burden to and of the relevant Catrett, proof at trial.” Corp. Clay Printing Celotex issue.” EEOC v. 2548, 2552, (4th Cir.1992). Alternatively, U.S. 91 prevail L.Ed.2d To on a motion proof resort scheme summary judgment, Consolidated must articulated for Title VII cases McDonnell (1) Green, demonstrate that: Douglas Corp. there is no (2) fact; any (1973), issue as to material it is S.Ct. which we judgment claims, applied entitled as a matter of law. to ADEA See have see Mitchell v. Liberty Lobby, Anderson v. Corp., Data U.S. General (4th Cir.1993); properly as a v. Western Elec. characterized reduction-in- EEOC (4th Cir.1983). Thus, 1011, 1014 application To estab force suit. of the reduc- inapt paradigm Apply- an ALEA claim tion-in-force is here. case on prima lish facie rubric, Douglas paradigm, we O’Con the McDonnell under the McDonnell cannot following conclude that O’Connor elements: prove nor must satisfy prima case because he fails to (2) (1) protected age group; in the [he] i.e., element, replaced the fourth he was (3) demoted; discharged or at the [he] protected outside the someone class.1 demotion, discharge [he] or time of Here, old, forty years Finnell was and thus job at a level that met his performing his he was within the class. See 29 (4) expectations; legitimate employer’s 631(a) (West Supp.1994). Having § U.S.C.A. demotion, [he] or following his claim, satisfy an element of his failed comparable replaced court, prevail. district O’Connor cannot class. outside qualifications therefore, properly summary judg- entered Id. ment favor of Consolidated. A. parties and the district
Although the
B.
present appeal
as a
court characterized
applying
conclude that even
*5
case,
“force”
the reduced
reduction-in-force
suit,
reduction-in-foree test to this
only
people, O’Connor and
two
consisted of
prevail
typical
cannot
on his claim.
the
position
Hunter,
was
while O’Connor’s
and
case,
apply a
reduction-in-force
modified
eliminated,
essentially replaced by
was
he
Douglas prima
version of the McDonnell
Thus,
complexities
the
and difficul
Finnell.
standard:
employee
determining what
was re
ties of
(1)
employee
protected by
the
the
typical
layoff
placed by
in the
mass
whom
(2)
ADEA;
discharge
he was selected for
Clay
an issue here. See
simply
case is
not
(3)
candidates;
larger group
from a
he
Co.,
(twenty-three
F.2d at 937
Printing
performing
substantially
at a level
Co.,
off);
employees
Western Elec.
laid
equivalent to the lowest level of those of
(reduction-in-force
applied
test
F.2d at 1013
(4)
retained;
group
process
the
the
Also,
employees).
of 225
un
work force
produced
selection
a residual work force of
case,
typical
like the
reduction-in-force
persons
groups containing
in
un-
the
some
replacement.
point to his
O’Connor can
protected persons
performing
who were
at
1413,
Uniroyal,
Duke v.
a level lower than that at
he was
which
(4th Cir.)
that
in reduction-in-
(explaining
performing.
employee
the
that
force suits
difficult,
Mitchell,
may
replaced
plaintiff
prove
of
comparable to these
inapt.
salaries is
mance reviews
stated,
ADEA
can establish
As
an
Ass’n,
Hosp.
Longmont United
Cone v.
proof
claim under the
scheme articulated
his
Cir.1994)
(opining that in
ordinary
Douglas or under the
in McDonnell
case,
plaintiff must
the
an
discrimination
Here,
proof used in civil cases.
standards of
In
replacement).
de
comparable to her
be
both
appeared
proceed
under
and dis
keep Finnell and Kiser
ciding to
Having concluded that
proof
schemes.
O’Connor,
decision was
charge
Williams’
prevail under the McDon-
O’Connor cannot
ability to handle
Finnell and Kiser’s
based on
analyze his claim
Douglas paradigm, we
nell
territory;
ter
enlarged geographic
an
by
proof
direct and
under the standards
reassigned to Kiser because
were
ritories
in civil cases.
circumstantial evidence used
responding
problem
O’Connor was slow
on his ADEA claim under the
To succeed
accounts;
could han
fact that these men
the
scheme,
proof
direct standard
was critical to the
larger territories
dle the
“(1)
following
the
elements:
must establish
Also, there
discharge
O’Connor.
decision
by
employee
...
an
covered
the
that he
disclosing Hunter’s
nothing in the record
(2)
[ADEA],
an unfavorable
who suffered
during
ability
performance
the relevant
or
employer
an
covered
action
Therefore,
comparison can be made
no
time.
(3)
[ADEA],
was a
Hunter and Finnell or Kiser.
between
action in the sense that but for
factor
fact,
O’Connor was dis
a month before
to discriminate on
intent
[Consolidated’s]
ability
Kiser’s
charged,
considered
age,
would not have been
[O’Connor]
basis
geographic territory
manage
larger
su
subjected
Clay
action.”
The decision to
perior to that of O’Connor.
(internal
Printing
quota-
O’Connor,
therefore,
omitted).
tion marks
To defeat a motion for
discrimination,
grounded in invidious
scheme,
summary judgment under
age-neutral reason that O’Con-
rather on the
“ ‘produce
must
direct evidence of
not recommend him
performance
nor’s
did
purpose to discriminate
[on
a stated
basis
job,
Finnell and Kiser’s did.
for the
while
age]
circumstantial evidence of a
and/or
genu
not create a
evidence does
purpose
[on
stated
to discriminate
the basis
fact that Consolidated
ine issue of material
age]
of sufficient
force to reflect
age neutrally
making
its
did not treat
”
(quot-
fact.’
Id.
issue of material
Additionally,
*7
employment decisions.
Co.,
845,
ing Goldberg v. B.
&
836 F.2d
Green
examining
pool
a
case law reveals
small
(4th Cir.1988)) (alteration
original).
848
employees
probative
not
of discrimination.
“Direct evidence of discrimination is evidence
Corp.,
Lighting
Marvel
30
See Birkbeck v.
which, believed,
prove
if
would
existence
Cir.)
(4th
607,
(comparing four indi
F.3d
511
any
pre-
a fact ... without
inference or
sample
to be
viduals is too small
Indus.,
sumptions.” Bodenheimer v. PPG
suit),
in a ADEA
cert. de
of discrimination
(5th Cir.1993).
Inc.,
955,
The
958
—nied,
-,
666,
115 S.Ct.
130
U.S.
summary judgment
applies
same
standard
(1994); Simpson
600
v. Midland-
L.Ed.2d
proof
under this
scheme.
(6th
937,
Corp.,
F.2d
943
n. 7
Ross
823
&
Cir.1987)
sample
(stating that
of seventeen
A.
(col
age
suspect)
an
case was
discrimination
cases);
lecting
Iturbe v.
&
see also
Wandel
on which
The direct evidence
O’Con-
Technologies,
Golterman
1994 WL
his case are three
nor relies
Cir.1994)
(4th
(unpublished) (per cu-
age-related matters made
statements about
)
properly
(stating
derogatory
may
riam
that a “court cannot
remarks
by Williams. While
discrimination,
of discrimination from a
see
draw an inference
be direct evidence
Bell, Inc.,
1429,
pool
only
employees”). Under these
v. Blue
Wilhelm
(4th
denied,
Cir.1985),
precedents,
of discrimination
cert.
U.S.
no inference
(1986),
suit.
find that
106 S.Ct.
be drawn
this
“clearly
that
satisfy
decisional law
reflects
isolat-
prong.
the fourth
O’Connor failed to
Co.,
Clay Printing
too see also
...
‘are
ambiguous statements
ed and
being
abstract,
(holding
employer’s
irrelevant
that an
in addition
comment
finding of
dis
newer,
prejudicial,
employer needed to “‘attract
”
“
crimination,’”
Nat’l
Gagne Northwestern
‘young
younger people’
and needed
”
(6th Cir.1989)
Ins.
evidence of
blood’
failed to establish direct
Corp.,
Prods.
Chappell v. GTE
(quoting
discrimination);
Gagne,
was fast golf. That ability play O’Connor’s with dis is not morous comment following cir was made under the statement First, the Birkbeck court crimination. as Williams, O’Connor, and Steve cumstances: this are innocu explained, comments such as employee, Carpman, another Consolidated The no inference of bias. ous and create watching golf match on television. were the statement Birkbeck court ruled that “ walk that that he “couldn’t stated O’Connor make a time when we have to ‘there comes ” days play many golf for five rounds way younger people,’ simply lacks dis (J.A. 127). days.” holes for five accurately criminatory intent and is more by stating that to this comment responded fact that commentary on the understood as a Again 511-12; just Birkbeck, “too old.” people age. all reply summary judgment inane statement was O’Connor’s in favor of Consolidated. jocular carefully he declaration that was too old to We have examined O’Connor’s dis- covery play eighteen golf. request again, holes Here and his Rule 59 motion and merit; linking they thus, conclude that are nothing there is this remark with without we affirm as discharge. agree rulings judg- We with those well. The is, ment of the respects, district court all simply district court that these remarks are affirmed. stray do not comments that establish evi-
dence discrimination. AFFIRMED.
B. BUTZNER, Judge, Circuit Senior concurring in part dissenting part: explained respect We the infirmities with evidence in O’Connor’s indirect section I. reasoning IIB. obtains here. The same The district this evidence in- court dismissed as reluctantly I concur the court’s conclu- sufficiently probative to establish O’Connor’s sion that prima O’Connor cannot make out a claim, agree with this and we conclusion. ease of discrimination under the frame- work set Douglas Corp. out in McDonnell v. Green,
IV. (1973), was not re- placed by issues, someone outside the other raises two class. First, merit scant he asserts attention. in refusing the district court him erred cer- This circuit’s version the McDonnell discovery requests. tain Reversal of discov- requires formula an ADEA ery “only rulings proper is on a clear show- to demonstrate that he replaced by abuse, and ‘it unusual to find abuse protected age group. outside the ” of discretion in matters.’ these United See, e.g., Clay Printing EEOC v. Presbyterian in the United Church States (4th Cir.1992); F.2d EEOC West (D.C.1984)
Reagan, ern Elec. Cir. States, (quoting Swanner v. United compel my These cases concurrence. (5th Cir.1969)). carefully have discovery requirement, however, examined the issues and Such an conclude absolute justification has no policy. the district did not err with in law or Age court re- The Second, spect Act, rulings. Employment Discrimination in these 29 U.S.C. § seq., objective 621 et contends court states that its that the district erred in de- is “to motion, prohibit arbitrary age nying discrimination.” his Rule 59 which the district 621(b). 60(b)(2) § U.S.C. Act motion, court contains no lan- construed as a Rule guage permitting employers youn- based to favor a on Dennis’ affidavit. We have exam- ger employee over an older affidavit, one on the basis agree ined this with the age simply younger employee because the district court evidence that this fails to satis- protected age is within the group. fy granting the criteria for relief under either Boryan Rule 59 or Rule 60. See v. United proof, As a method of the McDonnell States, Cir.1989). Douglas paradigm was “not intended to be
rigid, mechanistic or ritualistic.” Furnco *9 Waters, 567, 577, Constr. Co. v. 438 U.S. 98 V. 2943, 2949, (1978). S.Ct. regardless We conclude that of how age O’Con- replacement employee of a should be a viewed, nor’s claim age relevant, of discrimination is dispositive, factor for a he failed to raise a issue of material court deciding to consider when whether the summary fact precluding judgment. plaintiff prima has established case grant therefore affirm Douglas the district court’s under the of McDonnell framework.
551 boss, Arts, him Ted Williams’s approach and told Williams circuits take Most other fire ordered Williams to O’Connor. only show he had plaintiff need that a observe fired, why O’Connor was When Dennis asked younger, whether replaced get- responded “that all of us were age group. Williams outside or within old, getting Machinery ting [O’Connor] that Jim Package 865 v. Freeman See (1st Cir.1988); this affidavit was not reason- 1331, 2 Haskell old.” Because n. F.2d 1335 (2d earlier, 113, ably 122 I believe the district Corp., 743 F.2d Cir. available Kaman v. Int'l, 1984); rejected F.2d have it. 766 court should not v. Sinclair Maxfield (3d Cir.1985); 788, v. Bienkowski 792-93 of create a issue These statements (5th 1503, Airlines, 1506 American at trial. fact that should be decided material Cir.1988); Dep’t Vet Kralman v. Illinois Liberty Lobby, 477 Anderson v. (7th Cir. Affairs, F.3d 153-56 erans’ 2505, 2510, U.S. 1994); City Independence, v. Rinehart jury reasonably A could (8th Cir.1994); F.3d 1265-66 statement or from the infer from Williams’s (9th Anderson, F.2d 531-33 Cir. v. contained in the Dennis affidavit information 1981); Expert Cooper Asplundh v. Tree factor Cir.1988); Carter discharge. Because a trier Miami, City v. claim, I fact should determine O’Connor’s Carmen, Cir.1989); Cuddy v. judgment of the district vacate the would (D.C.Cir.1982); v. see also Lovelace evidentiary for a full hear- court and remand n. 5 Sherwin-Williams ing. (4th Cir.1982) (dictum). But see LaPointe 600, 8 F.3d Autoworkers Local United (6th Cir.1993) (requiring plaintiff to show replacement was outside
group).
II. court’s con- respectfully dissent from the I America, UNITED STATES that, ordinary standards of under clusion Plaintiff-Appellee, an inference proof, failed to raise plaintiff An ADEA of discrimination. claim demon- prevail on a discrimination WALTON, Defendant- Eric Arthur circumstantial evi- strating, through direct or Appellant. dence, employer’s an motive that but for No. 94-5580. basis of discriminate on the discharged. Clay been would not have Appeals, United States Court Lovelace, 940; Printing, F.2d at Circuit. Fourth F.2d at 239. April Argued presented sufficient evidence has 7, 1995. Decided June summary discriminatory motive to survive deposition that in his judgment. He testified Williams, him two supervisor, told
Ed his “O’Connor, discharge, his
weeks before for this kind of work.”
you’re too damn old making this statement. denied motion,
Additionally, postjudgment in his with the affida- provided the court Dennis, coworker of Phillip who was a
vit of states In his affidavit Dennis
O’Connor.