Kenneth A. Dockins v. Benchmark Communications

176 F.3d 745, 1999 U.S. App. LEXIS 5627, 75 Empl. Prac. Dec. (CCH) 45,806, 79 Fair Empl. Prac. Cas. (BNA) 848, 1999 WL 292103
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 29, 1999
Docket98-1285
StatusPublished
Cited by25 cases

This text of 176 F.3d 745 (Kenneth A. Dockins v. Benchmark Communications) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenneth A. Dockins v. Benchmark Communications, 176 F.3d 745, 1999 U.S. App. LEXIS 5627, 75 Empl. Prac. Dec. (CCH) 45,806, 79 Fair Empl. Prac. Cas. (BNA) 848, 1999 WL 292103 (4th Cir. 1999).

Opinions

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 [747]*747continued 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 [748]*748for 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.

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176 F.3d 745, 1999 U.S. App. LEXIS 5627, 75 Empl. Prac. Dec. (CCH) 45,806, 79 Fair Empl. Prac. Cas. (BNA) 848, 1999 WL 292103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenneth-a-dockins-v-benchmark-communications-ca4-1999.