Throckmorton v. Waste Management of Carolinas, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RONALD THROCKMORTON, 
Plaintiff-Appellant,
v.
 No. 01-1968
WASTE MANAGEMENT OF CAROLINAS,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CA-00-116)
Argued: April 5, 2002
Decided: May 3, 2002
Before NIEMEYER and KING, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Rudolph Alexander Ashton, III, MCCOTTER, MCAFEE
& ASHTON, P.L.L.C., New Bern, North Carolina; David Edward
Gurganus, New Bern, North Carolina, for Appellant. Randy C. Gepp,
ARRINGTON & HOLLOWELL, P.C., Atlanta, Georgia, for Appel-
lee. ON BRIEF: David P. Voerman, VOERMAN LAW FIRM,
2 THROCKMORTON v. WASTE MANAGEMENT OF CAROLINAS
P.L.L.C., New Bern, North Carolina, for Appellant. Karen M. Patten,
ARRINGTON & HOLLOWELL, P.C., Atlanta, Georgia; Randall D.
Avram, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Ronald Throckmorton brought suit against his employer,
Waste Management of Carolinas, Incorporated ("WMI"), in the East-
ern District of North Carolina, for violating the Age Discrimination
in Employment Act of 1967 ("ADEA"). WMI sought summary judg-
ment on Throckmorton’s claim, maintaining that the evidence was
insufficient to justify trial and also asserting that the majority of his
contentions were barred because they had not been timely filed with
the Equal Employment Opportunity Commission ("EEOC"). By its
Order of June 25, 2001, the district court awarded summary judgment
to WMI. Throckmorton v. Waste Mgmt. of Carolinas, Inc., Order, No.
7:00-CV-116-F(1) (E.D.N.C. June 25, 2001) (the "Opinion"). Throck-
morton has appealed, and we affirm.
I.
WMI operates a business involved in recycling and waste disposal
in Jacksonville and Wilmington, North Carolina. Throckmorton was
first hired by WMI in 1992 to work at Jacksonville as a route driver
in its recycling program. His duties included driving a recycling truck
and, with a helper, picking up recyclable materials. Following coro-
nary bypass surgery in 1994, however, Throckmorton was assigned
to other duties.
Throckmorton maintains that, since 1994, his former recycling
route position has been open three or four times, and that he has
THROCKMORTON v. WASTE MANAGEMENT OF CAROLINAS 3
unsuccessfully applied for reassignment to it on each occasion.
According to Throckmorton, WMI has consistently hired a younger
person to fill the position. WMI’s records reflect only one request by
Throckmorton for assignment to the recycling driver position, made
on May 6, 1999.* His supervisor, Gerald Murrell, refused to award
him the job on that occasion, citing Throckmorton’s lack of produc-
tivity. Instead, on July 5, 1999, WMI hired a thirty-two-year-old man
to fill the position. Throckmorton filed an age discrimination com-
plaint with the EEOC on October 19, 1999, and thereafter, on June
8, 2000, Throckmorton filed this lawsuit, contending that he had been
subjected to age discrimination by WMI.
As evidence that WMI’s refusal to assign him as the recycling
route driver was based on age animus, Throckmorton testified, inter
alia, that (1) he heard Murrell assert that he wanted only "scrawny
young studs" on the routes, and (2) that another WMI employee told
him that Murrell had said he "was looking for young, small males"
to work a residential route. Throckmorton made other contentions in
support of his age discrimination claim, including (1) Murrell’s com-
ments to him and to another employee regarding their receipt of mili-
tary pensions (implying that they would not be harmed by shortened
work weeks); (2) the denial of special and incentive pay due to his
age; (3) excessive drug testing as a result of age; and (4) scheduling
him for shortened four-day work weeks more frequently than other
employees.
The district court rejected Throckmorton’s claim and awarded sum-
mary judgment to WMI on June 26, 2001. Throckmorton then filed
this appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
*WMI contends that Throckmorton did not directly request assignment
to the recycling route on the previous occasions. Because the other inci-
dents occurred earlier, and Throckmorton must, under 29 U.S.C.
§ 626(d), demonstrate an ADEA violation within 180 days prior to the
filing of his EEOC complaint, we must first examine the May 6, 1999
incident, which was within the statutory 180-day window. If we see that
incident as insufficiently supported, there can be, as explained infra at 6,
no "continuing violation" warranting consideration of the earlier inci-
dents, and any dispute of fact concerning them is of no relevance.
4 THROCKMORTON v. WASTE MANAGEMENT OF CAROLINAS
II.
Our standard of review on appeal is de novo, applying the same
principles employed by the district court. Causey v. Balog, 162 F.3d
795, 800 (4th Cir. 1998). Summary judgment is appropriate only if
there are no genuine issues of material fact and if the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In reviewing
an award of summary judgment, we view the evidence in the light
most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
III.
In order to utilize the alleged incidents of discrimination occurring
more than 180 days prior to the filing of his EEOC complaint,
Throckmorton must show that those prior incidents "can be related to
a timely incident as a series of separate but related acts amounting to
a continuing violation." Beall v. Abbott Labs, 130 F.3d 614, 620 (4th
Cir. 1997) (internal citation and quotation omitted); see supra n.1. If
no incident unlawful under the ADEA occurred within the 180-day
period prior to October 19, 1999 (i.e., after April 22, 1999), Throck-
morton is unable, as a matter of law, to establish a continuing viola-
tion. Hill v. AT&T Techs., Inc., 731 F.2d 175, 180 (4th Cir. 1984).
The district court found the evidence insufficient to support the find-
ing of a "timely incident," and it concluded that because "the evidence
in the record is insufficient to sustain the plaintiff’s claim of age dis-
crimination — i.e., the court finds no ‘present violation’ — the court
cannot consider any other alleged instances of discrimination that
occurred prior to April 22, 1999." Opinion at 3 (emphasis in original).
On appeal, Throckmorton asserts that a present violation did exist,
primarily relying upon the May 6, 1999, failure of WMI to assign him
to the recycling route driver position for which he had applied, an
event within the 180-day window, as establishing the basis for his
continuing age discrimination violation. His first contention is that
Murrell’s comments that he sought young employees constituted
direct evidence of discrimination. The court rejected this contention
because Throckmorton had failed to "illustrate a nexus between that
THROCKMORTON v. WASTE MANAGEMENT OF CAROLINAS 5
animus and the employment action" alleged to have been taken
against him. Id. at 6 (citation and quotation omitted).
The district court correctly analyzed Throckmorton’s claim under
the burden-shifting analysis of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). It observed that three of Throckmorton’s
asserted incidents of discrimination failed immediately for lack of
evidence. Throckmorton offered no more than "speculation and inad-
missible evidence" in support of his allegation that he had been sub-
jected to more of the shortened four-day work weeks than younger
employees. Opinion at 8. It also pointed out that "the record is devoid
of evidence that the plaintiff achieved the requisite performance goals
to entitle him to incentive pay," and that Throckmorton had failed "to
show any connection between his age and receipt of special pay or
incentive pay." Id. at 10. Additionally, the court observed that
Throckmorton offered no evidence "other than his own speculative
conclusion" that there was any connection between his purportedly
high rate of drug testing and his age. Id. at 11.
The district court also examined Throckmorton’s assertion that
WMI had failed to promote him to the position of full-time recycling
route driver as the result of age animus. The court, taking the evi-
dence in the light most favorable to Throckmorton, concluded that he
had established a prima facie case of age discrimination, i.e., (1) he
was a member of a protected class; (2) he applied for an open posi-
tion; (3) he was qualified for the position, and (4) he was denied pro-
motion under circumstances that create an inference of unlawful
discrimination. O’Connor v. Consol. Coin Caterers Corp., 517 U.S.
308, 310-11 (1996). The court also concluded, however, that WMI
had refuted any inference of age discrimination by demonstrating that
its refusal to assign Throckmorton to the position of recycling route
driver was a reasonable business judgment, based in part on Throck-
morton’s alleged lack of productivity. Opinion at 13. As a result,
Throckmorton was then required to present evidence that WMI’s
proffered rationale was pretextual. Although Throckmorton denies
that he was nonproductive, he has made an insufficient showing of
pretext. Job performance is a valid nondiscriminatory basis for an
adverse employment action, and an employer is vested with the dis-
cretion to choose among equally qualified candidates, so long as its
decision is not based upon unlawful criteria. Evans v. Techs. Apps. &
6 THROCKMORTON v. WASTE MANAGEMENT OF CAROLINAS
Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). It is the perception of the
decisionmaker, and not that of the employee, which is relevant. Id. at
960-61. After thorough consideration, the district court concluded that
Throckmorton had demonstrated "nothing more than the unremark-
able fact that the plaintiff and Murrell disagreed about the plaintiff’s
productivity." Opinion at 14 (citation and quotation omitted).
IV.
We have carefully reviewed Throckmorton’s claim, and we agree
that Throckmorton has failed to establish an age discrimination case
against WMI. We are therefore content to affirm the award of sum-
mary judgment to WMI on the reasoning of the district court. Throck-
morton v. Waste Mgmt. of Carolinas, Inc., Order, No. 7:00-CV-116-
F(1) (E.D.N.C. June 25, 2001).
AFFIRMED