Kenneth A. Dockins v. Benchmark Communications , 176 F.3d 745 ( 1999 )

Affirmed by published opinion. Chief Judge WILKINSON wrote the majority opinion in which Judge WILKINS joined. Judge KING wrote a dissenting opinion.

OPINION

WILKINSON, Chief Judge:

Kenneth A. Dockins brought suit against his former employer, Benchmark Communications, alleging that Benchmark fired him because of his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. The district court, holding that Dockins failed to raise a triable issue of fact as to whether age was the real reason for his termination, granted summary judgment to Benchmark. Because it is clear that Benchmark discharged Dockins because of poor performance rather than his age, we affirm.

I.

From 1975 until his discharge in 1996, Dockins worked as an account executive for WESC, a radio station in Greenville, South Carolina. Dockins sold air time to advertisers in the station’s listening area. WESC paid Dockins on a straight commission basis augmented by occasional bonuses. Dockins was supervised by Charles Wayne Sumner who, as the station’s senior account executive, also sold advertising time.

In March 1995, Benchmark Communications purchased WESC. Benchmark hired Mike LoConte to oversee the seven to eight sales representatives of WESC as well as the representatives of its sister station, WTPT.

LoConte, whose remuneration depended in part on the revenues generated by those under his command, attempted to improve advertising sales. Once a month he met with each representative to establish sales goals for the forthcoming month and to analyze the previous month’s sales. In one of LoConte’s first meetings with Doc-kins in August, LoConte informed him that his performance was substandard and requested that he submit daily call sheets to focus his sales activities.

Despite LoConte’s warning to Dockins about his performance, Dockins’ output continued to lag behind that of his colleagues. In the third quarter of 1995 Doc-kins sold less than any other salesman who worked for WESC for the full quarter— generating $20,000 less in sales than the representative selling the next lowest amount. In the fourth quarter, Dockins was second-to-last in sales revenue generated. Most notably, Dockins failed to cultivate new accounts. His new account sales for the third quarter totaled only $2,490, placing him roughly $6,000 behind the next lowest full-time sales representative. In the fourth quarter, Dockins’ new account sales dipped to just $900.

In response to Dockins’ scant output, LoConte called a meeting with Sumner and Dockins on January 15, 1996. Lo-Conte informed Dockins that he was placing him on a thirty-day probationary period, during which LoConte expected his sales numbers to improve. When they did not, LoConte terminated Dockins’ employment. Dockins was sixty years old at the time.

Alleging that Benchmark fired him because of his age rather than for any legitimate reason, Dockins brought suit in the United States District Court for the District of South Carolina. The district court granted summary judgment to Benchmark.

II.

Dockins attempts to prove his claim of discrimination by relying on the extended burden-shifting scheme first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At this stage in the litigation, however, the ultimate question is whether Dockins can demonstrate that Benchmark discharged him because of his age. See United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983). We agree with the district court that Benchmark discharged Dockins because of his poor performance, and that this case is clearly one about business realities rather than age animus.

A.

Benchmark claims that it fired Dockins due to his poor performance rather than because of his age. Benchmark offers substantial evidence that Dockins’ sales output during the second two quarters of 1995 pegged him as WESC’s least effective sales representative. During the third quarter, Dockins posted a total of $60,229 in sales, fully $20,000 less than the next lowest performing full-time representative. During the fourth quarter, Dockins sold $74,776 worth of air time, a sum which landed him second from the bottom.

Just as importantly, Dockins’ sales from new accounts were below those of his fellow sales representatives. He generated only $2,490 in July and none in August or September, making him the lowest producing full-time salesman by nearly $6,000. Similarly, he created no sales from new accounts in October and November, and only $900 worth in December.

Notably, Sumner, who is close in age and experience to Dockins, consistently turned in sales figures that far outstripped Dockins’. For instance, Sumner sold $207,515 in air time for the third quarter of 1995 as compared with Dockins’ $60,229. And in the fourth quarter Sumner sold $210,313 worth of advertising while Doc-kins’ sold only $74,776. Finally, Sumner’s new business sales for the third quarter alone were well over Dockins’ for the third and fourth quarters combined.

Dockins does not dispute the fact that his numbers place him not at the top, not even in the middle, but at the absolute bottom of the list. Instead, he offers excuses. Dockins alleges that Benchmark took a series of actions to lower his sales figures during the last half of 1995. But even if Benchmark attempted to decrease Dockins’ sales, that fact is irrelevant unless Dockins can show Benchmark did so because of age bias. This, he cannot do.

First, Dockins alleges that Benchmark failed to include in his sales figures the “trade business”—the trading of air time for goods and services rather than money — in which he engaged during the last half of the year. Second, Dockins claims that Benchmark transferred one of his accounts to another WESC sales representative. Third, Dockins claims that LoConte refused to provide some of Dockins’ accounts with bonus commercials, forcing them to discontinue their advertising with WESC.

Benchmark presents unrefuted evidence, however, that in each instance it acted pursuant to neutral corporate policies which it applies equally to each of its representatives regardless of age.¹ With regard to Dockins’ trade business, it is Benchmark’s standard practice to exclude those figures from a representative’s sales. Similarly, Benchmark followed its traditional rule of assigning accounts by company rather than brand name when it transferred Dockins’ account. Finally, Benchmark introduces uncontested evidence that providing bonus commercials to Dockins’ other accounts would have made them unprofitable.

Dockins makes two additional accusations that Benchmark hampered his performance, but he fails to provide any evi-dentiary support beyond mere supposition. In no event does he tie his allegations to age bias on the part of Benchmark.

Initially, he claims that LoConte was rude to a representative from an advertising agency to which Dockins had sold advertising slots, causing the agency to purchase air time elsewhere. Even assuming that LoConte was rude to the advertising agency’s representative, Dockins provides no evidence that age animus was the reason. In addition, Dockins proffers nothing other than his belief that it was LoConte’s behavior that ultimately caused the agency to look elsewhere.

Dockins further claims that LoConte diverted “call in business” — business in which potential advertisers call the station unsolicited — away from him. Again, conspicuously absent from Dockins’ claim is any evidence that age motivated LoConte. Moreover, Dockins himself admits that he has no knowledge of any instance in which call in business was channeled away from him. Indeed, he introduces only the testimony of another sales representative, Allan Jenkins, that call in business “probably” was diverted. Such unspecific and speculative opinions are simply insufficient to raise a triable issue of fact as to Dockins’ performance. See, e.g., EEOC v. Clay Printing Co., 955 F.2d 936, 945-46 (4th Cir.1992).

Finally, excuses aside, Dockins attempts to cast doubt on Benchmark’s performance rationale by referencing the fact that Benchmark awarded him three bonuses during the last half of 1995. But with regard to two of the bonuses, Dockins gives us no reason to believe they say anything about his individual performance. Benchmark awards bonuses for any number of reasons, for instance, as rewards for being part of a team that performs well. Dockins does explain his third bonus; Benchmark rewarded him for reaching ninety percent of his sales goal mid-month. Dockins’ partial performance for one month, however, says nothing about his overall performance for the entire second half of 1995.²

In sum, Dockins’ poor sales figures go virtually unrebutted. Dockins’ output lagged behind that of WESC’s other representatives for the entire second half of 1995. It lagged both in total sales and in new business. LoConte warned Dockins and attempted to refocus his efforts by requiring daily call sheets. Still, Dockins’ sales were spare. Finally, at the end of a thirty-day probationary period Benchmark terminated his employment. In the face of this evidence, Dockins presents nothing more than accusations that are either unsupported by the record or refuted by neutral policies. Dockins simply fails to indicate that any of Benchmark’s actions demonstrate discrimination on account of age.

B.

Unable to demonstrate that any of the aforementioned actions were motivated by his age, Dockins alleges that LoConte and Sumner made comments revealing age bias. First, he claims that LoConte made comments referencing Dockins’ age and health. For example, Dockins claims that when he and LoConte discussed Dockins’ probation, LoConte said, “With your health and your age, you need to pick up the slack in your sales and I’m going to put you on 30-day probation.” Dockins contends that LoConte made similar statements on other occasions such as when LoConte discharged him. Dockins, however, produces nothing other than his own affidavit to support his allegations that LoConte made inappropriate comments about his age. We have long held that “a plaintiffs own assertions of discrimination in and of themselves are insufficient to counter substantial evidence of legitimate nondiscriminatory reasons” for a discharge. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir.1989).

The only version of LoConte’s statements for which Dockins presents any outside evidence — here, the corroborating testimony of LoConte himself — is one in which LoConte mentioned Dockins’ health. As an initial matter, it is not surprising that LoConte mentioned Dockins’ health since Dockins had on several occasions approached LoConte to ask for time off due to illness. Moreover, even if LoConte discussed Dockins’ health, that fact in no way implies he was discriminating against Dockins because of his age. Health problems do increase with age. Consequently, “[r]ather than indicating a discriminatory purpose, ... such statements seem only truisms.” Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir.1980). Stating a fact of life does not make one an age bigot.

Second, Dockins presents the testimony of James Rice, another sales representative at WESC, that Sumner once referred to Dockins as a “dinosaur.” Dockins fails, however, to connect Sumner’s comment to any decision regarding his employment. See Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.1994); Clay Printing Co., 955 F.2d at 942. Indeed, it was LoConte, not Sumner, who made the decision to place Dockins on probation and who recommended his ultimate termination. Moreover, Rice himself testified that he had no reason to believe the comment related in any way to Dockins’ age.. Finally, as noted, Sumner is roughly the same age as Dockins.

In any case, statements about age, unlike statements about race or gender, do not rest on a we/they dichotomy and therefore do not create the same inference of animus. “[B]arring unfortunate events, everyone will enter the protected age group at some point in their lives.” Birkbeck, 30 F.3d at 512. Thus, every individual speaks with the knowledge that there with the grace of God go I.

Moreover, Benchmark produces significant evidence that it provides an environment that is receptive to older workers. Far from purging its older employees, Benchmark routinely employs and gives responsibility to workers over the age of forty. See Clay Printing Co., 955 F.2d at 941. Indeed, during the period of Dockins’ employment all but one of the sales representatives were in the protected age group. Sumner, WESC’s most prodigious salesman, was himself nearly sixty years old when Dockins was fired. And the station’s chief engineer was close to sixty-five. Yet of all of these older employees, only Dockins was let go. The character of Benchmark’s workforce, both before and after Dockins’ termination, “suggests anything but a youth movement at [Benchmark].” Id.

III.

At base, it is clear that Benchmark’s decision rested wholly on the necessities of the business world. It is not that we are without sympathy for Dockins’ situation. We understand the fact that bottom line business realities produce decisions that are difficult for the individuals affected by them. But the lifeblood of any business is its ability to sell its product. If salesmen under perform, a business cannot survive. And if a business does not survive, all of its employees, including its senior ones, will be out of work. This is why the ADEA does not “require an employer to adopt a life of economic altruism and thereby immunize protected class members from discharge or demotion despite their poor performance.” Gairola v. Virginia Dep’t of Gen. Servs., 753 F.2d 1281, 1287 (4th Cir.1985). The ADEA prevents employers from acting on the basis of age — not performance.

Here Dockins’ sales numbers dipped precipitously during the latter half of 1995. Despite repeated warnings that he should improve those numbers and suggestions about how he might do so, Dockins’ output remained stagnant. Dockins does not establish a triable issue of fact that Benchmark discharged him for any reason other than his failure to perform. Indeed, he gives no reason why Benchmark would want to discharge any employee, young or old, who was earning a profit for the station.

The judgment of the district court is

AFFIRMED.

1 . The lone exception to Benchmark's neutral policy explanation is an account that changed ownership and whose new owners decided to pursue other advertising outlets.

2 . Dockins also trumpets the fact that Benchmark placed him on its company-wide All-Star Sales Team for 1995. The team included those representatives who sold $300,000 or more in air time for the year. Dockins fails to dispute, however, the fact that with the exception of one representative who had been with WESC for only two months every WESC salesman received a spot on the team. Receipt of such an award simply says nothing about Dockins’ relative performance.