Lеster C. McLawhorn brought an age discrimination claim, under the Age Discrimination in Employment Act, in federal district court against his former employer, John W. Daniel and Company (Daniel). Daniel moved for summary judgment and, after a hearing, the Court granted this motion. McLawhorn did not appeal the grant of summary judgment, but instead, three and one-half months later, moved for relief from this order under Federal Rule of Civil Procedure 60(b). The district court ruled against this 60(b) motion, and, finding that the court did not abuse its discretion, we affirm.
I.
On June 12, 1987, after thirty-one years of employment, plaintiff McLawhorn, then sixty-one years old, was terminated from his job as a construction superintendent for defendant Daniel. According to the affidavits of Daniel’s president (John P. Wall) and regional vice-president (Samuel W. Daniel), McLawhorn was let go because of his poor safety record and his poor job performance.
McLawhorn filed suit against Daniel on May 11, 1989, alleging that he had been fired because of his age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. Daniel thereafter moved for summary judgment and submitted the affidavits of Wall and Daniel. After a hearing on October 4, 1989, the United States District Court for the Eastern District of Virginia granted defendant’s motion.
In attempting to make out the required prima facie case of age discrimination needed to defeat the summary judgment motion, McLawhorn did not proffer any extrinsic, independent evidence of the discrimination, but instead relied on the judicially fashioned affirmative proof scheme established for such cases. Under this scheme, in order for the plaintiff to establish a prima facie case of discrimination, he must submit evidence showing:
(1) the plaintiff is in the protected age group; (2) the plaintiff was discharged or demoted; (3) at the time of discharge or demotion, the plaintiff was performing his job at a level that met his employer’s legitimate exрectations; and (4) following his discharge or demotion, the plaintiff was replaced by someone of comparable qualifications outside the protected class.
EEOC v. Western Electric Co.,
The court in its findings of fact and conсlusions of law found that McLawhorn did not satisfy prongs three and four of this test. On the third prong, the district court compared the two affidavits submitted by defendant with job appraisals and salary information offered by McLaw-horn. The court found that much of McLawhorn’s evidence was not relevant because it concerned time periods before McLawhorn’s work performance began to deteriorate. By contrast, McLawhorn’s оwn evidence showed that on November 1, 1986, seven months before his dismissal, the company was very concerned about his performance; also, in 1987 McLawhorn was the only salaried employee of Daniel nоt to receive a pay raise. As for prong four, McLawhorn did not offer any evidence to show that he had been replaced by someone outside the forty-plus protected class. In fact, of the sixtеen superintendents employed by Daniel, the five under forty were hired before McLawhorn’s dismissal and the three hired since then have all been above forty.
McLawhorn did not appeal the summary judgment order, but instead, on January 26, 1990, filed a motion for relief from this order pursuant to Fed.R.Civ.P. 60(b). In this motion, plaintiff alleged that “Defendant did not permit Plaintiff to review its records as directed by the Court until the day before the hearing on the motion for summary judgment,” and that “Defendant failed to make availablе to Plaintiff all of the documents which were responsive to Plaintiff’s Request for Production of Documents.” Both sets of documents, those which McLawhorn did not review until the day before the hearing and those Daniel suppоsedly never made available, concerned safety inspection records pertaining to Daniel construction jobs for which McLawhorn did not act as superintendent. This evidence would supposedly demоnstrate that other Daniel superintendents had safety records as poor as or poorer than McLawhorn’s. Attached to plaintiff’s motion was an affidavit from Barbara Ash-by, Daniel’s former safety director, asserting that to the best of her knowledge there should have existed more safety records than those turned over by Daniel to McLawhorn. In response to this motion, Daniel presented the affidavit of Howard J. Burnette, its in-housе counsel, who swore that to the best of his knowledge all documents requested by McLawhorn had been made available and that there existed no other safety records.
On March 6, 1990, the district court entered an order denying McLawhorn’s motion for relief pursuant to Rule 60(b). The court so ruled for three independent reasons: (1) the motion was not brought in a timely manner; (2) McLawhorn failed to meet his burden of establishing fraud or misconduct by clear and convincing evidence; and (3) even had McLawhorn shown that other superintendents with poor safety records had not been fired, this would not have altered the court’s disposition of the earlier summary judgment mоtion. McLawhorn now appeals the district court’s denial of his Rule 60(b) motion.
II.
Rule 60(b) of the Federal Rules of Civil Procedure states that:
On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligenсe could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... оr (6) any other reason justifying relief from the operation of the judgment. The motion shall bemade within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceеding was entered or taken....
Disposition of Rule 60(b) motions is within the discretion of the district court and such rulings will not be overturned absent an abuse of that discretion.
Werner v. Carbo,
McLawhorn brought his motion for relief under subsections (2), (3), and (6) of Rule 60(b), and the court treated it as having been brought under (3), which it found “most applicable and appropriate.” Of the three independent grounds cited by the court to deny the 60(b) motion, we find each one to be valid.
First, the district court denied the motion because it was not brought in a timely manner. Motions under Rule 60(b) must be brought “within a reasonable time” and “the movant must make a showing of timeliness.”
Werner,
the delay.
See, e.g., Central Operating Co. v. Utility Workers of America,
Second, the triаl court held that under Rule 60(b)(3), McLawhorn failed to make a sufficient showing of fraud or misconduct by Daniel. The party seeking 60(b)(3) relief must “prove the misconduct complained of by clear and convincing evidence аnd demonstrate that such misconduct prevented him from fully and fairly presenting his claim or defense.”
Square Const. Co.,
Finally, the district court ruled that even had McLawhorn timely filed his motion and shown the fraudulent withholding of evidence, his Rule 60(b) motion would still have been denied, since no additional evidence concerning the safety records of other Daniel superintendents would have changed the disposition of the summary judgment motion. McLawhorn failed the third prong of the alternative proof scheme not only because Daniel showed him to have a poor safety record, but also because he did not rebut the сompany’s evidence that he had performed poorly as a superintendent. The plaintiff also failed the fourth prong of the proof scheme, in that it was never shown that he had been replaced by someone outside the protected class.
AFFIRMED.