PUBLISH
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT ___________________________ 09/01/99 THOMAS K. KAHN No. 98-6690 CLERK ___________________________ D.C. Docket No. CV 97-H-1134-NE
RAYMOND MITCHELL, Plaintiff - Appellant,
versus
USBI COMPANY, Defendant - Appellee. ____________________________
Appeal from the United States District Court for the Northern District of Alabama ____________________________ (September 1, 1999)
Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.
PER CURIAM:
_________________________ *Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by designation.
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
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
2 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.
3 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 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
4 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.
Svedrup, 153 F.3d 1308, 1314 (11th Cir. 1998).
5 The district court assumed that Mitchell had presented a prima facie case of
age discrimination, but 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.
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT ___________________________ 09/01/99 THOMAS K. KAHN No. 98-6690 CLERK ___________________________ D.C. Docket No. CV 97-H-1134-NE
RAYMOND MITCHELL, Plaintiff - Appellant,
versus
USBI COMPANY, Defendant - Appellee. ____________________________
Appeal from the United States District Court for the Northern District of Alabama ____________________________ (September 1, 1999)
Before TJOFLAT and DUBINA, Circuit Judges, and THRASH*, District Judge.
PER CURIAM:
_________________________ *Honorable Thomas W. Thrash, U.S. District Judge for the Northern District of Georgia, sitting by designation.
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
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
2 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.
3 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 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
4 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.
Svedrup, 153 F.3d 1308, 1314 (11th Cir. 1998).
5 The district court assumed that Mitchell had presented a prima facie case of
age discrimination, but 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
6 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
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
7 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
8 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, (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,
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
9 (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.