Mitchell v. USBI Company

Raymond MITCHELL, Plaintiff-Appellant,
v.
USBI COMPANY, Defendant-Appellee.
No. 98-6690.
United States Court of Appeals,
Eleventh Circuit.
Sept. 1, 1999.
Appeal from the United States District Court for the Northern District of Alabama. (No. CV 97-H-1134-NE),
James H. Hancock, Judge.
Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.
PER CURIAM:
Plaintiff Raymond Mitchell appeals the district court's grant of summary judgment in favor of
defendant USBI on his claim that USBI terminated his employment because of his age in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Mitchell contends that he stated a
prima facie case of age discrimination and that he presented sufficient evidence for a reasonable jury to
conclude that USBI's proffered reasons for terminating his employment were pretextual. For the reasons set
forth below, we affirm the district court.
I. FACTS AND PROCEDURAL HISTORY
On July 21, 1981, Mitchell began working for USBI at its Huntsville, Alabama, facility. In 1985,
Mitchell transferred to the Engineering Department, where he was classified as a "Senior Systems Engineer."
His duties, which included updating certain documents, required some technical knowledge.
In 1991 and 1992, USBI laid off a total of 250 employees from its Huntsville workforce. In October
1993, USBI informed Don Reed, the head of the Engineering Department and the Vice President for
Engineering, that he would have to eliminate 46 or 47 positions from the Engineering Department, because
*
Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by
designation.
NASA had canceled a USBI program known as the "ASRB program." Because many Huntsville employees
worked on ASRB projects on a part-time basis, the total number of Engineering Department layoffs
represented a compilation of all employee hours spent on ASRB projects. USBI's written layoff policy
mandated that employees who worked on the ASRB program be laid off first.
Reed told his subordinates to prepare a department-wide list of potential layoff prospects. After
compiling this list, the Engineering Department managers worked with the Human Resources Department
to determine whether any of the layoff prospects were entitled to "bump" other employees. Under USBI's
layoff policy, a more senior employee slated for layoff could bump a less senior employee in the same job
classification or job family, if the more senior employee possessed the requisite qualifications to perform the
less senior employee's job. The Engineering Department managers prepared a written justification for each
decision to retain a less senior employee.
Mitchell's supervisor, Lou Trivett, submitted a list of nine or ten candidates for layoff to his boss, Phil
Taylor. Mitchell was one of the layoff prospects, because Trivett and his two section chiefs determined that
Mitchell's job functions would either be eliminated by the loss of the ASRB program or could be absorbed
by other employees. USBI then determined that Mitchell did not possess the requisite qualifications to bump
any of the 20 less senior employees who worked in his job classification or job family. Mitchell contends
that he was qualified to fill at least some of those positions.
There is some dispute as to whether Mitchell's performance evaluations played a role in the bumping
process. Ed Liverett, Mitchell's former supervisor, admits that he gave Mitchell lower performance
evaluations in 1989, 1990, and 1991, because of Mitchell's age. Liverett explained that he gave higher
performance evaluations to younger employees in order to increase their salaries and encourage them to
remain with USBI. Liverett did not prepare Mitchell's 1992 performance evaluation, however, which was the
last evaluation before the 1993 reduction-in-force. Although USBI eventually decided not to use the
performance evaluations in assessing whether less senior employees should be "bumped," four of the
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justifications relating to Mitchell did mention some of his performance evaluations without identifying their
dates.
On November 5, 1993, Mitchell and the other employees on the final list were informed of their
terminations. At the time of his termination, Mitchell was 57 years old. After pursuing all three steps of the
employee appeals process without success, Mitchell filed an EEOC charge alleging age discrimination. He
then sued USBI, and the district court granted summary judgment against him.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo, applying the same standard as the district court.
See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (1998), reh'g and reh'g en banc denied, 172
F.3d 884 (11th Cir.1999). Summary judgment is appropriate where, after viewing the evidence in the light
most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See id.III. DISCUSSION
In order to state a prima facie case of age discrimination involving a reduction-in-force, a plaintiff
must demonstrate that: (1) he was a member of the age group protected by the ADEA and was adversely
affected by an employment decision; (2) he was qualified for his current position or to assume another
position at the time of discharge; and (3) there is evidence from which a reasonable factfinder could conclude
that the employer intended to discriminate on the basis of age in making its employment decision. See
Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.1997). If the plaintiff satisfies this burden, the
employer then must offer a legitimate, non-discriminatory reason for the employment action. See Maddow
v. Procter & Gamble Co., Inc., 107 F.3d 846, 851 (11th Cir.1997). If the employer does so, the plaintiff bears
the ultimate burden of demonstrating that the employer's proffered reasons are a pretext for discrimination.
See id.; Watkins v. Sverdrup, 153 F.3d 1308, 1314 (11th Cir.1998).
The district court assumed that Mitchell had presented a prima facie case of age discrimination, but
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ruled that he had failed to offer any evidence that USBI's legitimate, non-discriminatory reasons for its
employment decision were pretextual. The court found that USBI had engaged in a detailed process of
identifying candidates for layoff and explained why Mitchell could not replace 20 less senior employees, with
each written justification citing his lack of specific qualifications. On appeal, Mitchell contends that the
district court erred because he offered sufficient evidence for a reasonable factfinder to conclude that USBI's
proffered reasons were pretextual. We address each of Mitchell's arguments in turn.
First, Mitchell argues that USBI's proffered reason for not allowing him to bump less senior
employees—that he was not qualified for any of their positions—was pretextual, because several witnesses
opined that he was qualified. None of these witnesses, however, were actual decision makers in the layoff
process. Four were co-workers of Mitchell, and one was a former supervisor who stated only that Mitchell
could have become qualified with proper training. This Court repeatedly has stated that it will not
second-guess a company's legitimate assessment of whether an employee is qualified for a particular position.
See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir.1991) (noting that "[f]ederal courts do
not sit as a super-personnel department that reexamines an entity's business decisions" and that the key
inquiry is "whether the employer gave an honest explanation of its behavior") (citations and internal
quotations omitted); Smith v. Horner, 839 F.2d 1530, 1538 (11th Cir.1988) ("If an employer selects the
person it believes is best qualified, an argument of pretext ordinarily will fail.") (citations and internal
quotations omitted).
Second, Mitchell argues that comments by various USBI employees demonstrate a corporate culture
conducive to age discrimination. He cites a number of comments by a manager named Frank Batty, although
he admits that Batty did not participate in the decision to terminate his employment. He also cites another
manager's suggestion that the layoffs were aimed at the employees who were more secure and did not have
young children in school, although he concedes that this manager also was not a decisionmaker.
Nevertheless, Mitchell argues that, taken together, these comments constitute circumstantial evidence of
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discrimination. In several age discrimination cases, however, this court has explained that comments by
non-decisionmakers do not raise an inference of discrimination, especially if those comments are ambiguous.
See Standard, 161 F.3d at 1329-30 (statement by non-decisionmaker that "older people have more go wrong"
was not probative of discriminatory intent); Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir.1987)
(statement by non-decisionmaker that "[t]he Hardy Corporation was going to weed out the old ones" did not
raise a genuine issue of material fact regarding discriminatory intent); Barnes v. Southwest Forest Industries,
Inc., 814 F.2d 607, 610-11 (11th Cir.1987) (statement by decisionmaker that employee could not pass a
physical examination "at [his] age," when weighed against other evidence, did not raise issue of
discriminatory intent).
Third, Mitchell argues that the district court erred in concluding that his performance evaluations did
not play a role in the bumping process. Mitchell's former supervisor has admitted that he gave Mitchell lower
performance evaluations for 1989, 1990, and 1991, because of Mitchell's age. Several of the written
justifications refer to Mitchell's performance evaluations, although they do not specify the dates.
Emphasizing the lack of specific dates and the testimony of Reed and others that they did not use the
performance evaluations in the bumping process, the district court concluded that the tainted performance
evaluations did not play a role in the bumping process. Viewing the evidence in the light most favorable to
Mitchell, however, we must assume that some of the decisionmakers examined the tainted evaluations.
Nevertheless, we affirm the district court because the written justifications indicate that Mitchell
lacked specific, objective qualifications for each potential replacement position. Mitchell does not argue that
he possessed these qualifications, and therefore he has failed to raise a genuine issue as to whether USBI's
proffered reason for not allowing him to bump less senior employees—his lack of qualifications—was
pretextual. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407(1993) ("[A] reason cannot be proved to be 'a pretext for discrimination ' unless it is shown both that the
reason was false, and that discrimination was the real reason."); Clark v. Coats & Clark, Inc., 990 F.2d 1217,
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1228 (11th Cir.1993) ("The burden of proving pretext merges with the plaintiff's ultimate burden of proving
that age was a determining factor in his discharge.").
Fourth, Mitchell argues that USBI failed to follow its stated policy of first laying off employees who
worked on the ASRB program. Even assuming that USBI did deviate from its policy, this deviation does not
raise an inference of discrimination. Standing alone, deviation from a company policy does not demonstrate
discriminatory animus. See EEOC v. Texas Instruments Inc., 100 F.3d 1173, 1182 (5th Cir.1996) (deviation
from company policy not evidence of discrimination, absent a nexus between deviation and employee's
protected status); Friedel v. City of Madison, 832 F.2d 965, 973 (7th Cir.1987) (inaccurate application of
departmental policy not enough to prove discrimination). See also Berg v. Florida Dep't of Labor and
Employment Security, 163 F.3d 1251, 1255 (11th Cir.1998) (plaintiff failed to support claim of ADA
violation by arguing that state agency had failed to apply its policies correctly, absent showing that policies
were misapplied because of his disability).
Finally, Mitchell argues that the district court relied too heavily on statistical evidence indicating that
the reduction-in-force did not have a disparate impact on older employees. While statistical evidence does
play a larger role in disparate impact cases, this court has examined such evidence in disparate treatment cases
as well. See Watkins, 153 F.3d at 1314-15; Maddow, 107 F.3d at 852. Moreover, the district court also
relied upon affidavits and other evidence relating to Mitchell's specific situation.
Thus, we conclude that Mitchell has failed to present sufficient evidence to rebut USBI's legitimate,
non-discriminatory reasons for laying him off and not allowing him to bump any less senior employees.
Accordingly, we affirm the district court's grant of summary judgment in favor of USBI.
AFFIRMED.
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