Ralph Arthur v. Pet Dairy , 593 F. App'x 211 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2530
RALPH WILFRED ARTHUR,
Plaintiff – Appellant,
v.
PET DAIRY; LAND-O-SUN DAIRIES, LLC,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:11-cv-00042-NKM-RSB)
Argued: December 9, 2014 Decided: February 9, 2015
Before WILKINSON, SHEDD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., P.C.,
Roanoke, Virginia, for Appellant. Victor O’Neil Cardwell, WOODS
ROGERS PLC, Roanoke, Virginia, for Appellees. ON BRIEF: Frank
K. Friedman, J. Benjamin Rottenborn, WOODS ROGERS PLC, Roanoke,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ralph Arthur (“Appellant”) sued his employer, Pet
Dairy (“Appellee”), alleging that he was terminated because of
his age in violation of the Age Discrimination in Employment Act
(“ADEA”). He appeals from the district court’s order of summary
judgment in his employer’s favor.
To lodge a claim of age discrimination, a plaintiff
may proceed through either of two avenues of proof: by raising a
presumption of discrimination, or by offering direct or
circumstantial evidence of the employer’s discriminatory animus.
Regardless of the method employed, the burden remains the same:
plaintiff must prove that age was the but-for cause of his
termination. In this case, Appellant’s evidence fails to raise
a genuine dispute as to whether he can satisfy this burden; he
offers nothing to cast doubt upon Appellee’s stated reasons for
terminating him, including numerous customer complaints and his
lengthy history of performance issues. Accordingly, we affirm.
I.
A.
Appellant was a milk delivery driver and salesman for
Appellee, a corporation serving Lynchburg, Virginia’s dairy
needs. Appellant initially worked for Pet Dairy in 1992 or 1993
for about six months, and was most recently rehired in January
2003 when he was 57 years old. Appellant was assigned Pet
2
Dairy’s largest and most profitable sales route, which supplied
Barnes & Noble and the Lynchburg City School Division (the
“School Division”), among others.
At the time of his termination, Appellant’s direct
supervisor was Appellee’s branch manager for the Lynchburg
office, Mike Reynolds (“Reynolds”). Appellant testified in
deposition that on Reynolds’s first day as Appellant’s
supervisor, Reynolds told Appellant, “[Y]ou are too old to be
here and I’m going to get rid of you.” J.A. 363. 1 Appellant
also offered the sworn affidavit of his coworker, Judith
Hickman, who generally confirmed that “Reynolds told Arthur that
he was too old to be working.” Id. at 537. Appellant further
testified that around Thanksgiving in November 2009, about three
weeks before Appellant’s termination, Reynolds told Appellant
that he “need[ed] to go ahead and hang it up because [he was]
just too old to do [his] job.” Id. at 983-84.
But the record also shows Appellant demonstrated
significant work performance issues, beginning almost
immediately after he was hired in 2003. For example, on May
16th, 2003, Appellant crashed his milk truck into an SUV,
striking it hard enough to send the SUV into a triple barrel
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
3
roll. 2 For this, Appellant was given a written warning. He was
also issued two formal, written reprimands in September 2003 for
consistently failing to supply customers with adequate
quantities of milk.
Appellee hired Mike Reynolds in 2005. Reynolds often
communicated his dissatisfaction with Appellant’s performance,
threatening to fire him either verbally or in writing about once
every two weeks. Appellant claimed Reynolds left him at least
17 sticky-notes threatening termination, but Appellant admitted
that none of them concerned his age; all criticized his job
performance. In one sticky note, Reynolds threatened to fire
Appellant for damaging three truck bumpers by hitting objects
with his work truck. In another, Reynolds demanded for the
“last time” that Appellant take inventory of his delivery load.
J.A. 464-65. Reynolds also verbally reprimanded Appellant when
customers complained about his failure to deliver adequate
quantities of milk, and threatened to terminate Appellant when
he refused to deliver the goods as requested.
Reynolds said that he received more complaints about
Appellant than about any of the other drivers, and that
Appellant had problems with customers “from day one.” J.A. 738.
2
In his deposition, Appellant attempted to understate his
blameworthiness for this accident, insisting that he merely
“tapped” the other driver’s vehicle. J.A. 447.
4
Reynolds said that after he corrected Appellant, Appellant
“would get better for three or four months” before reverting to
his bad habits. Id. at 739. Reynolds was not alone in his
assessment of Appellant. Both he and his assistant manager,
Steven Good (“Good”), told Appellant on several occasions that
his performance was lacking and he “would end up getting fired
because of his problems” if he did not improve. Id. at 738.
Appellant also generated several complaints from
Appellee’s customers, and from the School Division especially.
Appellee disciplined Appellant in writing after a Barnes & Noble
store complained that Appellant failed to deliver enough milk.
Later, the Barnes & Noble store demanded Appellee assign its
account to another driver after Appellant spilled a gallon of
milk on the store’s carpet. Additionally, the School Division,
the largest customer on Appellant’s route, repeatedly complained
that Appellant left milk on outdoor loading docks, where it
would be exposed to weather; delivered to the schools cartons of
milk covered in rust; failed to provide the schools with enough
milk; argued with school cafeteria managers; sped through school
parking lots; maneuvered his hand truck “at breakneck speed”
through school kitchens, “to the point it created a safety
hazard”; failed to inventory his load of milk; and exhibited a
rude and hostile attitude. J.A. 604.
5
The School Division annually hosted an in-service
meeting where school staff would express their opinions on
services provided by various contractors. By 2009, the School
Division had complained about Appellant for “several years,” and
it had “exhausted [its] patience.” J.A. 1021. Meryl Smith
(“Smith”), the director of school nutrition, invited Reynolds to
the School Division’s August 2009 in-service meeting because she
received such a high number of complaints from school cafeteria
managers that she “wanted [Reynolds] to hear [these complaints]
directly from [the managers].” Id. at 630. Reynolds attended
the meeting and heard these complaints in person. This was the
first time Smith had requested a representative of any of the
School Division’s “many” vendors to attend an in-service meeting
in order to hear complaints from school staff about an
employee’s job performance. Id. at 632. But even after this
unprecedented in-service meeting, Smith still heard complaints
from cafeteria managers and contacted Reynolds “on and
off . . . expressing [her] concern that things were not getting
better.” Id. at 602-03.
In her deposition, Smith said that Reynolds approached
her several months after the in-service meeting and asked her to
“put [her] concerns [about Appellant] in writing” because
Reynolds was considering whether to “get[] rid of [Appellant] as
an employee,” and needed a written complaint “in order to make
6
changes.” J.A. 600, 602, 625. In a memorandum dated December
4, 2009 (the “Smith Memorandum”), Smith documented the School
Division’s complaints about Appellant. Smith wrote that
although she was sure Appellant was “aware that [the School
Division was] not happy with his work performance . . . he [did]
not make an effort to change those things that he [was] capable
of changing,” that she had “exhausted [her] patience in working
with [Appellant], and [that she] no longer want[ed] to deal with
the problems he create[d]” for the School Division’s food
service program. Id. at 1021. “With this in mind,” Smith
“stat[ed] that [she] no longer want[ed] [Appellant] to service
any of the Lynchburg City School accounts,” and she asked
Appellee to “assign another route driver to cover the Lynchburg
School accounts as soon as possible.” Id. Smith penned that
she believed the School Division’s “long term bid contracts with
[Appellee] . . . [gave her] the leverage to make this request.”
Id. Good testified that when management for Appellee received
this memorandum, they believed the School Division “would pull
the accounts or the contract if [Appellant] continued to be
their service person representing [Appellee].” Id. at 560. The
School Division gave Appellee a choice of either removing
Appellant from the route or losing one of its most lucrative
contracts.
7
On December 8, 2009, Reynolds forwarded the Smith
Memorandum to Anthony Heyward (“Heyward”) in Appellee’s human
resources department, stating, “Ralph Arthur needs to be
terminated” because he “is an ongoing problem.” J.A. 724, 727.
Based on Reynolds’s recommendation and the Smith Memorandum,
Heyward submitted to his superior, Marion Terrell (“Terrell”),
that Appellant should be terminated. Heyward did not
independently investigate any complaints about Appellant’s
performance before making this recommendation. Terrell
concurred with the recommendation. Appellant was terminated on
December 17, 2009.
Appellant testified that Appellee dissolved his route
the day after he was terminated. Appellee later divided this
route among seven other drivers who then supplied the customers
Appellant formerly serviced. Of these drivers, only one was
under 40 years old. Appellee did not hire any new employees to
replace Appellant.
B.
Appellant filed suit in the Western District of
Virginia alleging age discrimination in violation of the ADEA,
29 U.S.C. § 623(a)(1). In addition to offering direct evidence
of Reynolds’s derogatory statements, Appellant also offered
circumstantial evidence that Reynolds intended to discriminate
against Appellant because of his age: deposition testimony in
8
which Reynolds denied procuring the Smith Memorandum, disclaimed
any desire to fire Appellant before he received the memorandum,
and disavowed having a significant role in the termination.
This testimony was directly contradicted by Smith’s account of
events.
Appellant also claimed he performed his job duties
adequately, and he contested the truth of most of the complaints
about his work performance, insisting that both the School
Division and Reynolds exaggerated or fabricated the basis for
their grievances. 3 Appellant provided uncontested testimony that
3
Appellant argues we cannot consider many of the School
Division’s complaints about his performance because they are
inadmissible hearsay. See Appellant’s Br. 5-6, 29-36 (“‘[I]n
assessing a summary judgment motion, a court is entitled to
consider only the evidence that would be admissible at trial.’”
(quoting Kennedy v. Joy Technologies, Inc., 269 F. App’x 302,
308 (4th Cir. 2008))). This argument misses the point. The
issue in this case is whether Appellee fired Appellant because
complaints were made, not whether the School Division was
justified in complaining. See Holland v. Washington Homes,
Inc., 487 F.3d 208, 217 (4th Cir. 2007) (upholding order of
summary judgment because “uncontested evidence” showed that
employer “honestly believed” that employee should be discharged
for threatening coworker, because “it is the perception of the
decisionmaker which is relevant,” not whether employee actually
made threats (internal quotation marks omitted)). Therefore,
this evidence is admissible, not for the truth of the statement,
but to show Appellee’s state of mind. See Fed. R. Evid.
801(c)(2); see also Arrington v. E.R. Williams, Inc., 490 F.
App’x 540, 543 (4th Cir. 2012) (“[T]hird party statements
concerning the plaintiff’s performance are offered not for the
truth of the matters asserted therein, but as an explanation of
why [the employer] believed that terminating the plaintiff’s
employment . . . was necessary and appropriate . . . .”
(internal quotation marks omitted)).
9
despite the complaints, Appellee did not remove him from the
top-selling sales route, and did not formally discipline him in
writing in the past six years. Reynolds said in his deposition
that despite numerous complaints about Appellant’s performance,
he did not want to fire Appellant until he received the Smith
Memorandum.
Appellant also opined that before he was terminated,
Reynolds received an email from upper management requiring the
Lynchburg branch to increase the sales of three delivery routes,
and that “[t]here was no other way [Reynolds] could do that” but
to shut down Appellant’s route and divide it among the other
drivers. J.A. 417. Reynolds testified that a “number of
individuals” employed by Appellee or by its parent corporation
in Chicago periodically evaluated truck route patterns to
determine whether routes could be consolidated or eliminated, in
order to save costs. Id. at 681. According to Reynolds, these
route “territory planner[s]” decided to eliminated Appellant’s
route. Id. at 696. Indeed, according to Appellant’s testimony,
his route was fragmented the day following his termination. But
in his deposition, Appellant maintained he did not think
business necessity was “the primary reason” Appellee fired him.
Id. at 981.
After discovery, Appellee moved the district court for
summary judgment. The district court granted the motion. See
10
Arthur v. Pet Dairy, No. 6:11-cv-00042, 2013 WL 6073465 (W.D.
Va. Nov. 19, 2013).
II.
A.
We review orders granting summary judgment de novo,
viewing the evidence in a light most favorable to the nonmoving
party. See Educational Media Co. at Va. Tech, Inc. v. Insley,
731 F.3d 291, 297 (4th Cir. 2013). A party moving for summary
judgment must prove that no genuine dispute of material fact
exists, and that the moving party must prevail as a matter of
law. See Fed. R. Civ. P. 56(a). The nonmoving party may avoid
summary judgment by offering sufficient evidence to show the
existence of a genuine dispute. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Evidence raises a genuine
dispute if it “is such that a reasonable jury could return a
verdict for the nonmoving party,” and not “so one-sided that one
party must prevail as a matter of law.” Id. at 248, 252.
Therefore, when judging whether a “genuine” dispute exists, the
court must, to some extent, evaluate the evidence as a
reasonable juror would. See id. at 248. But we may not “weigh
the evidence and determine the truth of the matter,” because
genuine disputes as to the truth of material facts should be
submitted to the jury. Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (internal quotation marks omitted) (reversing order of
11
summary judgment because “the court improperly weighed the
evidence and resolved disputed issues in favor of the moving
party” (internal quotation marks omitted)). However, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient [to create a genuine
dispute]; there must be evidence on which the jury could
reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at
252.
B.
The ADEA makes it “unlawful for an employer . . . to
fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.
§ 623(a)(1). The ADEA plaintiff may prove age discrimination in
one of two ways: by proving a “prima facie case” of age
discrimination, which establishes a rebuttable presumption that
the employer violated the ADEA; or by offering direct or
circumstantial evidence of an employer’s discriminatory animus.
See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,
284 (4th Cir. 2004) (en banc), abrogated in part by Gross v. FBL
Fin. Servs., Inc., 129 S. Ct. 2343 (2009). Regardless of the
method chosen, it remains the plaintiff’s ultimate burden to
prove that his age was the but-for cause of the adverse
12
employment action. See Gross, 129 S. Ct. at 2351. The district
court held Appellant’s evidence does not raise a genuine dispute
sufficient to meet his burden on either ground. Appellant
claims the district court erred; he contends he provided
evidence establishing a genuine dispute as to whether he can
make out a prima facie case of discrimination, and that he also
offered sufficient direct or circumstantial evidence to prove
his age was the but-for cause of his termination. Therefore, we
must evaluate the evidence on both grounds.
1.
Prima Facie Case
a.
An ADEA plaintiff may establish a presumption of
discrimination by making out a prima facie case of age
discrimination according to McDonnell Douglas Corp. v. Green and
its descendants. See 411 U.S. 792, 802 (1973); see also Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 142-43 (2000);
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).
Though “the plaintiff’s burden is not onerous,” he must
nevertheless prove his prima facie case by a preponderance of
the evidence. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515
(4th Cir. 2006) (internal quotation marks omitted). To
establish a prima facie case, the plaintiff must show (1) he was
a member of the protected class, namely, “individuals who are at
13
least 40 years of age,” 29 U.S.C. § 631(a); (2) he was
performing his job duties to his employer’s legitimate
expectations at the time of termination; (3) he was terminated;
and (4) he was replaced by a substantially younger individual.
Hill, 354 F.3d at 285. Appellant cannot get beyond step two. 4
Whether an employee met his employer’s legitimate
expectations at the time of termination depends on the
“perception of the decision maker . . . , not the self-
assessment of the plaintiff,” and not the opinions of the
plaintiff’s coworkers. Hawkins v. PepsiCo, Inc., 203 F.3d 274,
280 (4th Cir. 2000). And because it is the plaintiff’s burden
to persuade the trier of fact that he met his employer’s
legitimate subjective employment expectations, at the prima
facie stage we must consider the employer’s “evidence that the
employee was not meeting those expectations.” Warch, 435 F.3d
at 515-16. Otherwise, it would be “difficult to imagine a case
where an employee could not satisfy the . . . legitimate
4
Because Appellant has failed to make out a McDonnell
Douglas prima facie case, we do not opine on whether Appellant
could have satisfied the ultimate burden of proof applicable to
his pretext case: that his age was the but-for cause of his
termination. See Reeves, 530 U.S. at 142-43 (explaining that
the core issue of “discrimination vel non” in an ADEA pretext
case is not reached unless the employee proves a prima facie
case and the employer meets its burden to produce “legitimate,
nondiscriminatory reason[s]” for the adverse employment action
(internal quotation marks omitted)).
14
expectation element.” Id. at 516 (internal quotation marks
omitted).
b.
The district court found Appellant failed to create a
genuine dispute about whether he satisfied the legitimate
expectations of his employer at the time of termination for two
reasons. First, Appellant’s work performance generated numerous
customer complaints long before he was terminated. Second,
nearer to his termination, Appellee’s largest customer refused
Appellant’s services. Both of these reasons support the
district court’s decision to grant summary judgment to Appellee.
To attempt to show he fulfilled his employer’s
legitimate expectations, Appellant highlights the fact that
Appellee, despite its claims regarding Appellant’s performance
record, did not formally discipline him during the six years
prior to his termination and did not reassign him to a less
economically important route. In fact, Appellee took no formal
action against Appellant until approximately four months after
it received the Smith Memorandum. However, Appellant’s evidence
as to his work performance is “simply not enough to genuinely
dispute the considerable evidence of [Appellant’s] repeated
failures and negative performance.” Warch, 435 F.3d at 518.
Compared to the mountain of evidence demonstrating Appellant
consistently failed to meet Appellee’s expectations, Appellant’s
15
evidence is a mere a molehill; it is either very weakly
probative, or not probative at all, of the material issue. 5
Indeed, the evidence of Appellant’s lacking job performance “is
so one-sided” that as a matter of law he cannot establish a
prima facie case. Garofolo v. Donald Heslep Assocs., Inc., 405
F.3d 194, 199 (4th Cir. 2005) (internal quotation marks
omitted). Although Appellee did not formally discipline
Appellant in writing, this carries little weight because
Appellant admitted he was informally counselled about his
performance on several occasions over several years.
Furthermore, one of Appellee’s largest customers, the School
Division, devoted an in-service meeting to airing its complaints
about Appellant’s performance. The School Division also
threatened to terminate its contract with Appellee because of
these complaints. Of note, Appellant does not dispute that this
meeting occurred, or that the School Division threatened to
terminate its contract because of him.
Taking Appellant’s allegations as true, the fact that
Reynolds stated he did not want to fire Appellant before he
received the Smith Memorandum, and that Appellant was permitted
to keep his route as long as he did despite numerous complaints
5
Appellant has never claimed that his employer’s
expectations were illegitimate, and we therefore deem this point
conceded.
16
about his performance, does not help Appellant’s case. Nor does
the bare fact that Appellant was not formally disciplined for
generating these complaints. Where there is evidence an
employee has repeatedly failed to meet his employer’s
expectations, and yet the employer has refrained from taking
certain disciplinary actions, the absence of discipline is
weakly probative of adequate performance. See Smith v. Flax,
618 F.2d 1062, 1067 (4th Cir. 1980) (concluding “the fact
[employee] was kept on for many months after it was determined
that he could not perform at an acceptable level of
competence . . . shows a high degree of patience and
consideration” on the employer’s part, not that the employee was
performing adequately). Furthermore, Appellant’s interpretation
of the law is actually against his own interest and the
interests of others similarly situated; he is suggesting that in
order for an employer to be free of potential ADEA claims, it
should terminate an employee at the first sign of poor
performance, else a court will find the employee met his
employer’s legitimate expectations. This view is not only
unsupportable as a matter of law, it is also bad policy.
Appellant’s evidence is simply insufficient for a
reasonable jury to find that Appellant met his employer’s
legitimate employment expectations. Therefore, we affirm the
district court’s order of summary judgment as to Appellant’s
17
inability to prevail on his ADEA claim by proving a prima facie
case of age discrimination.
2.
Direct or Circumstantial Evidence
a.
i.
We now turn to the question of whether Appellant has
established a genuine dispute of material fact as to his ability
to prove with direct or circumstantial evidence that Appellee
terminated him because of his age. We conclude that Appellant
cannot meet this burden, and therefore affirm the district
court’s order of summary judgment, because Appellant has not
proffered evidence tending to show that there was no other
explainable basis for Appellee’s decision to fire him.
Derogatory comments about an employee’s age may be
direct evidence of age discrimination, provided they concern the
employee’s age and sufficiently demonstrate that the employer’s
age-related animus affected the employment decision at issue.
See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,
300 (4th Cir. 2010) (noting that “in the absence of a clear
nexus [between an employer’s derogatory comments and] the
employment decision in question, the materiality of stray or
isolated remarks is substantially reduced”); Hill, 354 F.3d at
288-89 (requiring that ADEA plaintiffs prove the person acting
18
pursuant to discriminatory animus was “the one principally
responsible for, or the actual decisionmaker behind, the action”
(internal quotation marks omitted)); Dockins v. Benchmark
Commc’ns, 176 F.3d 745, 751 (4th Cir. 1999) (finding ADEA
plaintiff met burden to “present affirmative evidence of age-
based animus” by offering “his testimony regarding the comments
relating to his age” made by decisionmaker for employer
(internal quotation marks omitted)). 6
We have not expressly adopted an analytical framework
for determining if derogatory comments are direct evidence of
actionable age discrimination, but the Fifth Circuit has created
a four-part test for this purpose. See Jackson v. Cal-W.
Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010). Comments
must be “1) related to the protected class of persons of which
the plaintiff is a member; 2) proximate in time to the
complained-of adverse employment decision; 3) made by an
individual with authority over the employment decision at issue;
and 4) related to the employment decision at issue.” Id. This
test is consistent with our precedent, and we are content to
adopt it here.
6
See also McCray v. Pee Dee Reg’l Transp. Auth., 263 F.
App’x 301, 306 (4th Cir. 2008) (“While isolated statements can
constitute direct evidence of discrimination, the statements
must be contemporaneous to the adverse employment action.”).
19
As for circumstantial evidence of intentional
discrimination, the Supreme Court has concluded that an
employer’s false explanation about the circumstances of the
plaintiff’s termination, accompanied by evidence that the
employer acted with an illicit motive, may circumstantially
prove discriminatory intent. See Reeves, 530 U.S. at 147
(discussing the probative value of evidence that an employer’s
stated reason is pretext).
ii.
ADEA plaintiffs face a high causation burden: in order
to prevail, an ADEA plaintiff must prove that discrimination was
“the but-for cause” of the adverse employment action. 7 Gross,
129 S. Ct. at 2351 (emphasis supplied) (internal quotation marks
omitted). “[T]he ordinary meaning of the ADEA’s requirement
that an employer took adverse action because of age is that age
was the reason that the employer decided to act.” Id. at 2350
7
This burden differs greatly from that applied to so-called
mixed-motive claims pursuant to Title VII, which allow a
plaintiff to avoid summary judgment “when [the] employee alleges
that he suffered an adverse employment action because of both
permissible and impermissible considerations.” Gross, 557 U.S.
at 171; see 42 U.S.C. § 2000e-2(m); see, e.g., Pitrolo v. Cnty.
of Buncombe, N.C., No. 12-2375, 2014 WL 5315362, at *6 (4th Cir.
Oct. 20, 2014) (holding that plaintiffs who prevail on mixed-
motive Title VII claims are entitled to seek declaratory
relief).
20
(emphasis supplied) (internal quotation marks omitted).
According to Gross v. FBL Financial Services, to show “a but-for
causal relationship” for ADEA purposes the plaintiff must
present evidence that discriminatory animus was a “necessary
logical condition” for the adverse employment action and that
the employer did not act “because” of other legitimate
motivations for the action. Id. (internal quotation marks
omitted).
We agree with the majority of circuits that have
considered the issue and concluded that Gross elevated the
burden of proof many courts applied to ADEA claims. See, e.g.,
Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013) (noting “the
‘but-for’ standard of proof [developed in Gross] is more
demanding than the ‘motivating factor’ standard of proof”
applied to Title VII cases); Sims v. MVM, Inc., 704 F.3d 1327,
1336 (11th Cir. 2013) (“[T]he ADEA requires more than what must
ordinarily be proven under an analogous Title
VII . . . action.”). But cf. Jones v. Okla. City Pub. Schs.,
617 F.3d 1273, 1277-78 (10th Cir. 2010) (recalling that the
“Tenth Circuit has long held that a plaintiff must prove but-for
causation” to prevail on an ADEA claim, and concluding that
“Gross does not disturb [this] precedent by placing a heightened
evidentiary requirement on ADEA plaintiffs to prove that age was
the sole cause of the adverse employment action”).
21
But, pursuant to Gross, for an event to be the “but-
for cause,” it need not be the sole cause of the adverse
employment action. See Leal, 731 F.3d at 415 (concluding “the
district court misread Gross, since but-for cause does not mean
sole cause” (internal quotation marks omitted)). Age
discrimination cases often present more than one reason for an
employer to take adverse action against an employee, but an
employee need not refute each negative mark on his record or
every possible legitimate ground for the employment decision to
avoid summary judgment. Rather, according to Gross, to prevail
on summary judgment the employee must only demonstrate, age-
related considerations aside, that under the circumstances these
other nondisciminatory grounds did not animate the employer to
take the adverse employment action. See Gross, 129 S. Ct. at
2350 (indicating that an employer acts “because of” age when
“the employee’s protected trait actually played a role in the
employer’s decisionmaking process and had a determinative
influence on the outcome” (emphasis omitted) (quoting Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). 8 In other
8
We join at least five circuits that have adopted this view
of Gross. See Scheick v. Tecumseh, 766 F.3d 523, 532 (6th Cir.
2014) (holding that “notwithstanding the evidence of
dissatisfaction with [Appellant’s job] performance and the
concurrent need to respond to the budget crisis” a reasonable
juror could find that Appellant’s “age was the but-for cause of
[his employer’s] decision not to renew the contract for his
(Continued)
22
words, if there existed other legitimate motivations for the
decision, the employee must offer sufficient evidence to show
these factors were not “the reason” for the employer’s decision. 9
Id. at 176 (internal quotation marks omitted). So “direct
evidence of age discrimination[, such as derogatory comments
alone,] may not always be sufficient to create a question of
fact for trial in the ADEA context.” Scheick, 766 F.3d at 532.
When evaluating cases like this on summary judgment, our focus
services”); Leal, 731 F.3d at 414 (concluding that a “but-for
cause” for ADEA purposes is one “without which the event could
not have occurred,” and that even despite employer’s proffer of
multiple alleged bases for the adverse employment action,
Appellant adequately pleaded but-for causation (internal
quotations marks omitted)); Sims, 704 F.3d at 1332; Shelly v.
Green, 666 F.3d 599, 622 (9th Cir. 2012) (affirming order of
summary judgment on ADEA claim because, in light of Gross,
Appellant’s evidence could not “show that the [employer’s]
decision is unexplainable on any basis other than age
discrimination”); Jones, 617 F.3d at 1277-78 (“[A]n employer may
be held liable under the ADEA if other factors contributed to
its taking an adverse action, as long as age was the factor that
made a difference.” (internal quotation marks omitted)).
9
Appellant argues he only need prove “‘ that age was
[a] “but for” cause of the employer’s adverse decision,’” because
in its recent discussion of Gross, the Supreme Court “submitted a
bracketed ‘[a]’ for the word ‘the’ preceding the expression ‘but
for cause.’” Appellant’s Br. 48 (alteration in original)
(quoting Burrage v. United States, 134 S. Ct. 881, 889 (2014)).
Burrage v. United States had nothing to do with the ADEA. That
case interpreted the term “results from” as it appears in the
Controlled Substances Act. See Burrage, 134 S. Ct. at 885.
Although we are unsure how to regard the Supreme Court’s
alteration of this excerpt from Gross, we suspect that if the
Court desired to make a radical change to recent precedent, it
would not do so quietly in a case having nothing to do with
employment discrimination.
23
is on whether the plaintiff has provided sufficient evidence to
cast doubt upon the employer’s stated reasons for the employment
action, such that a reasonable juror may find age was the
determinative factor in that decision.
b.
Here, the district court concluded that Reynolds’s
comments, as alleged by Appellant, “do appear to be reflecting a
discriminatory attitude, and . . . appear to bear on the
decision to terminate [Appellant].” Arthur v. Pet Dairy, No.
6:11-cv-00042, 2013 WL 6073465, at *3 (W.D. Va. Nov. 19, 2013).
The district court nonetheless held that Appellant’s direct and
circumstantial evidence could not save his claim from summary
judgment because Reynolds’s disparaging comments “were not made
contemporaneous to the adverse employment action.” Id. This is
incorrect. In his deposition, Appellant stated that around
Thanksgiving in November 2009, Reynolds repeated his view that
Appellant was “too old to do [his] job” and “need[ed] to go
ahead and hang it up . . . .” J.A. at 983-84. Appellant’s
coworker, Judith Hickman also corroborated his claim that
Reynolds had made ageist comments of this sort in the past. 10
10
The district court dismissed Hickman’s testimony as a
coworker’s opinion “‘as to the quality of plaintiff’s work [that
is] . . . close to irrelevant.’” J.A. 1098 (quoting DeJarnette
v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)). The
district court misapplied this case. In DeJarnette v. Corning,
(Continued)
24
Appellant offers garden variety direct evidence of age
discrimination that sufficiently ties Reynolds’s alleged
discriminatory intent to the relevant time period.
Although we depart from the district court on this
point, we nonetheless affirm its conclusion because Appellant
does not contest record evidence demonstrating that his employer
terminated him for other lawful reasons. Appellee argues it
terminated Appellant because he had a long history of
performance issues and because its largest customer threatened
to leave unless Appellant was removed from the route. Indeed,
the record demonstrates Appellee believed the School Division
would “pull . . . the contract if [Appellant] continued to be
their service person representing [Appellee].” J.A. 560. While
“the perception of the decisionmaker” is the relevant issue in
determining whether an employee was terminated for lawful
reasons other than age, the Smith Memorandum and Appellee’s
reaction to it are powerful evidence that Appellee had a
Inc., the appellant attempted to show her employer’s reasons for
terminating her were pretext by offering her coworkers’
testimony that she “was an average or good employee.”
DeJarnette, 133 F.3d at 299. We rejected the coworkers’
opinions about DeJarnette’s performance, because “it is the
perception of the decision maker which is relevant.” Id.
(internal quotation marks omitted). But Hickman’s testimony is
indeed relevant because it corroborates Appellant’s claim that
Reynolds made derogatory statements about his age.
25
legitimate motive in terminating Appellant. Holland v.
Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007).
Further, even assuming that Reynolds’s alleged attempt
to cover his role in Appellant’s termination by denying he
procured the Smith Memorandum is circumstantial evidence of
discriminatory intent, see Reeves, 530 U.S. at 147, Appellee
still must prevail as a matter of law. Faced with Appellee’s
evidence, Appellant offered nothing to show that the Smith
Memorandum, and his past work performance issues, did not
independently form an animating reason for Appellee’s decision
to terminate him. Indeed, Appellant admitted that he was
criticized both verbally and in writing on numerous occasions
over his seven-year tenure at Pet Dairy because of his
substandard performance. Consequently, viewing the evidence in
a light most favorable to Appellant, the evidence at best
demonstrates that his “age was simply a motivating factor” in
Appellee’s decision, not “the but-for cause” of Appellant’s
termination. Gross, 129 S. Ct. at 2349, 2351.
Appellant also provides us with another reason to
affirm summary judgment in this case: he testified that Appellee
had another legitimate business reason to terminate him.
According to Appellant, upper management instructed Reynolds to
increase the sales of three other sales routes, and “[t]here was
no other way he could do that” but to eliminate his position and
26
distribute his route among others. J.A. 417. He also admitted
that this business decision was “one of the reasons why”
Appellee terminated him, although he insists it was not the
“primary reason.” Id. at 981, 982. But whether a legitimate
business decision was the “primary” reason for his termination
is not material; Appellant’s burden is to show his age was the
but-for cause of the adverse employment action -- a necessary
logical condition for his termination. See Gross, 192 S. Ct. at
2351. And here, Appellant’s own testimony demonstrates his
employer had other legitimate business motives to terminate him.
Therefore, viewing the evidence in a light most
favorable to Appellant, we hold that no reasonable jury could
find that Appellant has offered sufficient direct or
circumstantial evidence that his age was the but-for cause of
this adverse employment action.
III.
For the foregoing reasons, the district court’s order
of summary judgment is
AFFIRMED.
27