O'Connor v. Consolidated Coin Caterers

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No, 94-1214

JAMES O'CONNOR,

Plaintiff- Appellant,

CONSOLIDATED COIN CATERERS

CORPORATION,

Defendant- Appellee.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CA- 91- 277- C- C- P)

Argued: January 31, 1995

Decided: April 21, 1995

Amended opinion filed: June 8, 1995

Before HAMILTON and LUTTIG, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

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Affirmed by published opinion. Judge Hamilton wrote the opinion, in

which Judge Luttig joined. Senior Judge Butzner wrote a separate

opinion, concurring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: George Daly, GEORGE DALY, P.A., Charlotte, North

Carolina, for Appellant. Barbara L. Sloan, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C., for Amicus

Curiae. James Bernard Spears, Jr., HAYNSWORTH, BALDWIN,

JOHNSON & GREAVES, P.A., Charlotte, North Carolina, for Appel-

lee. ON BRIEF: Sharon Samek, GEORGE DALY, P.A., Charlotte,

North Carolina, for Appellant. James R. Neely, Jr., Deputy General

Counsel, Gwendolyn Young Reams, Associate General Counsel, Lor-

raine C. Davis, Assistant General Counsel, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, Washington, D.C., for Amicus

Curiae. Jacob J. Modla, HAYNSWORTH, BALDWIN, JOHNSON &

GREAVES, P.A., Charlotte, North Carolina, for Appellee.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

James O'Connor (O'Connor) brought a claim against Consolidated

Coin Caterers Corporation (Consolidated) pursuant to the Age Dis-

crimination in Employment Act (ADEA), 29 U.S.C.A.§ § 621- 634

(West 1985 & Supp. 1994), contending that Consolidated terminated

him because of his age. The district court granted summary judgment

in favor of Consolidated, holding that O'Connor could not succeed on

his claim of age discrimination. We affirm.

Consolidated operates cafeterias and vending machines primarily

for use in industrial plants, businesses, schools and health care facili-

ties. Although separately incorporated, Consolidated operates as a

division of its parent company, Canteen Corporation (Canteen). In

1986, O'Connor was the general manager of Consolidated's northern

region known as 4Cs North, which was centered in Raleigh, North

Carolina, and served northern North Carolina and southern Virginia;

Edward Williams (Williams) was O'Connor's direct supervisor, and

Williams reported to Ted Arts (Arts), President of Canteen's Central

Division.

In 1989, Canteen restructured its operations so as to have three

geographic territories instead of four. As a result of this reorganiza-

tion, O'Connor became the general manager of 4Cs South, which was

based in Charlotte, North Carolina, and served southern and western

North Carolina, as well as northern South Carolina, and Mike Kiser

(Kiser) of Consolidated took over O'Connor's job as general manager

of 4Cs North. Allen Hunter (Hunter) and Ted Finnell (Finnell),

employees of Canteen, remained respectively the managers of Can-

teen's Greensboro/Raleigh and Greenville/Spartanburg operations.

On July 10, 1990, Williams reassigned three geographic territories

from O'Connor to Kiser, resulting in the following management

scheme:

Kiser Hunter O'Connor

4Cs North Manager Canteen Manager 4Cs South Manager

Burlington Raleigh Charlotte

Smithfield Greensboro Laurinburg

Tarboro Shelby

Hickory

Asheville

Albemarle

South Boston

According to Consolidated, Williams reassigned the territories from

O'Connor to Kiser because O'Connor was slow in responding to

problem accounts. When this decision was made, Williams did not

know that Arts was planning another reorganization to consolidate

Canteen and Consolidated's operations.

Sometime subsequent to July 10, 1990, Arts contacted Williams,

informing him that he wanted to reorganize Canteen and Consoli-

dated's operations in North and South Carolina to reduce operating

costs under the following terms: combine Consolidated with Can-

teen's North and South Carolina's operations into a single, larger geo-

graphic territory, have this new territory managed by Williams, and

have Williams combine the management responsibilities of Finnell,

Kiser, Hunter, and O'Connor. Subsequently, Williams decided to

divide this new territory into two newly- organized districts: the

Northern District serving northern North Carolina and southern Vir-

ginia, and the Southern District serving southern North Carolina and

all of South Carolina. These two new districts were substantially

larger in geographic territory than under the previous organizations.

In August of 1990, this new "Carolinas Region" was organized as fol-

lows:

CAROLINAS REGION

Finnell Kiser

Southern District Northern District

Charlotte Burlington

Shelby Smithfield

Laurinburg Tarboro

Greenville Raleigh

Spartanburg Greensboro

Columbia South Boston

Hickory

Asheville

Albemarle

As a consequence of this reorganization, on August 10, 1990,

O'Connor, age fifty- six, was discharged, and Hunter, age fifty- seven,

was demoted.

Having created two new, large districts, Williams chose Finnell,

age forty, to manage the Southern District, and Kiser, age thirty- five,

to manage the Northern District. According to Consolidated, crucial

to selecting the managers for the new districts was the fact that there

were substantially greater management responsibilities than had been

required under the previous organizations and the new districts were

substantially larger in geographic area. Williams asserted he selected

Finnell and Kiser because he was Finnell's former direct superior, had

firsthand knowledge of both men's work and abilities, and considered

them competent to handle the greater responsibilities and larger geo-

graphic territory.

According to Consolidated, it did not select O'Connor to manage

one of the two new districts because they served a greater number of

customers, entailed more accounts, covered a substantially larger geo-

graphic territory, and O'Connor was slow in responding to problem

accounts. Consolidated asserted that a critical factor in not selecting

O'Connor was the fact that even before the second reorganization,

Williams had reduced the size of O'Connor's territory from six terri-

tories to three. Given that O'Connor was slow with his already-

reduced territory, Consolidated concluded that he could not handle an

even larger region. Also, Consolidated asserted that O'Connor had

not timely responded to a problem involving food delivery in unre-

frigerated trucks.

Discrediting Consolidated's reasons for terminating him, O'Connor

asserted that he was discharged because of his age; consequently, he

brought suit under the ADEA. The district court granted summary

judgment in favor of Consolidated. Although observing that this case

was not the typical reduction- in- force case characterized by mass lay-

offs, because here the reduction consisted of only O'Connor and

Hunter and O'Connor was essentially replaced by Finnell, the district

court nevertheless applied the modified McDonnell Douglas four-

prong test used in reduction- in- force suits and concluded that

O'Connor failed to establish a prima facie case because O'Connor

failed to present any evidence that Consolidated did not treat age neu-

trally in deciding to terminate him. Next, the district court held that

O'Connor failed to establish his case by the ordinary burden of estab-

lishing by direct and/or circumstantial evidence that he was termi-

nated because of his age.

Subsequently, O'Connor moved for a new trial, ostensibly on the

basis of newly- discovered evidence. See Fed. R. Civ. P. 59(a).

O'Connor's proffered evidence was an affidavit of a former co-

worker, Phillip Dennis (Dennis). Because there had been no trial, but

a grant of summary judgment, the district court construed O'Connor's

motion as one for relief from judgment based on newly- discovered

evidence and denied it. See Fed. R. Civ. P.60(b)(2). This appeal fol-

lowed.

II.

Rule 56(c) requires that the district court enter judgment against a

party who, "after adequate time for . . . discovery fails to make a

showing sufficient to establish the existence of an element essential

to that party's case, and on which that party will bear the burden of

proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To

prevail on a motion for summary judgment, Consolidated must dem-

onstrate that: (1) there is no genuine issue as to any material fact; and

(2) it is entitled to judgment as a matter of law. See Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether

a genuine issue of material fact has been raised, we must construe all

inferences in favor of O'Connor. See id. 257- 58. If, however, "the

evidence is so one- sided that one party must prevail as a matter of

law," we must affirm the grant of summary judgment in that party's

favor. Id. at 251- 52. O'Connor "cannot create a genuine issue of fact

through mere speculation or the building of one inference upon

another." See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). To

survive Consolidated's motion, O'Connor may not rest on his plead-

ings, but must demonstrate that specific, material facts exist that give

rise to a genuine issue. See Celotex Corp., 477 U.S. at 324. As the

Anderson Court explained, the "mere existence of a scintilla of evi-

dence in support of the plaintiff's position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff." Anderson, 477 U.S. at 244. Our review of a grant of sum-

mary judgment is plenary. See Cooke v. Manufactured Homes, Inc.,

998 F.2d 1256, 1260 (4th Cir. 1993).

Contending that his employment was terminated because of his

age, O'Connor brought this suit against Consolidated pursuant to the

ADEA. In order to establish his claim, O'Connor may rely on the nor-

mal methods of succeeding on a civil suit by establishing by a prepon-

derance of the evidence that but for Consolidated's motive to

discriminate against him because of his age, he would not have been

discharged. See Lovelace v. Sherwin- Williams Co. , 681 F.2d 230, 239

(4th Cir. 1982). O'Connor "may meet this burden under the ordinary

standards of proof by direct or indirect evidence relevant to and suffi-

ciently probative of the issue." EEOC v. Clay Printing Co., 955 F.2d

936, 940 (4th Cir. 1992). Alternatively, O'Connor may resort to the

proof scheme articulated for Title VII cases in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), which we have applied to

ADEA claims, see Mitchell v. Data General Corp. , 12 F.3d 1310,

1314- 15 (4th Cir. 1993); EEOC v. Western Elec. Co., 713 F.2d 1011,

1014 (4th Cir. 1983). To establish a prima facie case on an ADEA

claim under the McDonnell Douglas rubric, O'Connor must prove the

following elements:

(1) [he] is in the protected age group; (2)[he] was dis-

charged or demoted; (3) at the time of discharge or demo-

tion, [he] was performing his job at a level that met his

employer's legitimate expectations; and (4) following his

discharge or demotion, [he] was replaced by someone of

comparable qualifications outside the protected class.

Id.

Although the parties and the district court characterized the present

appeal as a reduction- in- force case, the reduced"force" consisted of

only two people, O'Connor and Hunter, and while O'Connor's posi-

tion was eliminated, he was essentially replaced by Finnell. Thus, the

complexities and difficulties of determining what employee was

replaced by whom in the typical mass layoff case is simply not an

issue here. See Clay Printing Co., 955 F.2d at 937 (twenty- three

employees laid off); Western Elec. Co., 713 F.2d at 1013 (reduction-

in- force test applied to work force of 225 employees). Also, unlike

the typical reduction- in- force case, O'Connor can point to his replace-

ment. See Duke v. Uniroyal, Inc., 928 F.2d 1413, 1418 (4th Cir.)

(explaining that in reduction- in- force suits determining the employee

that replaced the plaintiff may prove difficult, often because jobs have

been eliminated or combined), cert. denied, 502 U.S. 963 (1991). We

are not persuaded, therefore, that this case is properly characterized

as a reduction- in- force suit. Thus, application of the reduction- in-

force paradigm is inapt here. Applying the McDonnell Douglas para-

digm, we conclude that O'Connor cannot establish a prima facie case

because he fails to satisfy the fourth element, i.e., he was not replaced

by someone outside the protected class.1 Here, Finnell was forty years

_________________________________________________________________

1 While some circuits hold that an ADEA plaintiff can satisfy the fourth

element of McDonnell Douglas by showing that he was replaced by

someone younger or that younger coworkers were retained in the same

or similar positions, even if, as here, the replacements were in the pro-

tected age group, see, e.g., Roper v. Peabody Coal Co., No. 94- 2694, at

*1 (7th Cir. Feb. 17, 1995); Douglas v. Anderson, 656 F.2d 528, 532 (9th

Cir. 1981), Fourth Circuit precedent has required a plaintiff to demon-

strate that his replacement was outside the protected class to satisfy that

old, and thus he was within the protected class. See 29 U.S.C.A.

§ 631(a) (West Supp. 1994). Having failed to satisfy an element of his

claim, O'Connor cannot prevail. The district court, therefore, properly

entered summary judgment in favor of Consolidated.

We conclude that even applying the reduction- in- force test to this

suit, O'Connor cannot prevail on his claim. In the typical reduction-

in- force case, we apply a modified version of the McDonnell Douglas

prima facie standard:

(1) the employee was protected by the ADEA; (2) he was

selected for discharge from a larger group of candidates; (3)

he was performing at a level substantially equivalent to the

lowest level of those of the group retained; and (4) the pro-

cess of selection produced a residual work force of persons

in the groups containing some unprotected persons who

were performing at a level lower than that at which he was

performing.

Mitchell, 12 F.3d at 1315. This fourth element is usually characterized

by stating that a plaintiff must produce "some other evidence that the

employer did not treat age neutrally." Western Elec. Co., 713 F.2d at

1015. We have made this modification in such cases because the

plaintiff's position may have been eliminated or it may be difficult for

_________________________________________________________________

element, see, e.g., Clay Printing Co. , 955 F.2d at 943 (explaining that

because the replacements in a reduction- in- force suit were within the

protected class, the plaintiffs had to demonstrate that the employer did

not treat age neutrally in making its employment decisions); Western

Elec. Co., 713 F.2d at 1014 (holding that "in the usual ADEA case," a

plaintiff must prove that he "was replaced by someone of comparable

qualifications outside the protected class"); cf. Lovelace, 861 F.2d at

238- 39 & n.5 & 242- 43 n.13 (noting in dicta that it did not rely on the

fact that the plaintiff was replaced by someone in the protected class in

reaching its decision and noting further that "[w]hether the absolute and

relative ages of [plaintiff] and replacement may be factually relevant to

the discrimination issue [was] . . . a different matter").

the plaintiff to show precisely who replaced him. See id. at 1014.

While we have noted that "the fourth element[of the McDonnell

Douglas scheme] will not fit well in most reduction- in- force cases,"

we have concluded that an ADEA plaintiff "should not be permitted

to establish a `prima facie case' by satisfying only the first three ele-

ments." Id.

Indisputably, O'Connor satisfies elements one and two, i.e., he is

in the protected class and was discharged. The third element requires

that O'Connor perform at a level substantially equivalent to the low-

est level of those of the group retained. Essentially, this element

demands that O'Connor perform his job satisfactorily, thereby meet-

ing Consolidated's legitimate expectations. According to Consoli-

dated, O'Connor cannot satisfy this element because even prior to the

reorganization that gave rise to the two new district manager posi-

tions, O'Connor was slow in dealing with problem accounts, his terri-

torial responsibilities had already been greatly reduced, and he

experienced a problem with food delivery in an unrefrigerated truck.

Thus, Consolidated posits, O'Connor fails the third prong.

Conversely, O'Connor contends that his performance was satis-

factory and that his evidence tended to establish that Consolidated did

not treat age neutrally in discharging him. To support these conten-

tions, he relies on: (1) a good performance review dated January 1990

that reviewed the latter part of 1989 along with a large bonus he

received in 1989 for good work and comparative salary data; (2) Fin-

nell and Kiser, the younger men, one of whom was outside the pro-

tected class, were retained while he and Hunter, the older men, were

respectively discharged and demoted; and (3) testimony of Williams

that O'Connor had made progress with individual accounts and 4Cs

South made some improvement, despite the fact that 4Cs South gen-

erally had a lower profit margin than 4Cs North.

This evidence, however, does not tend to establish that O'Connor

was a satisfactory employee because Williams did not consider these

facts in his decision to discharge O'Connor; rather, Consolidated had

already substantially reduced O'Connor's geographic territory, and

given this fact, he was not a contender for one of the new positions.

The 1990 review of 1989, 1989 bonus, salary data, and some

improvement in 4Cs South are irrelevant because O'Connor was not

performing well in August of 1990, the time of termination. See

Anderson v. Stauffer Chem. Co., 965 F.2d 397, 401 (7th Cir. 1992)

(stating that a 1984 evaluation, even if given in December of 1984,

and a pay raise given at the start of 1985 was not relative to a dis-

charge on May 1, 1985). Moreover, at the time Consolidated decided

to terminate O'Connor, Williams did not know of Art's decision to

consolidate Canteen's and Consolidated's organizations. With respect

to the evidence that O'Connor was improving, even if O'Connor were

making some progress with respect to some accounts, that does not

negate the fact that he did not react timely to other problem accounts

or that 4Cs South's performance was still not up to par. Because

under Art's reorganization the geographic territories were even larger,

and O'Connor's territory was already reduced, O'Connor's evidence

tending to establish that he was working up to expectations does not

create a genuine issue of material fact.

The fourth prong of the reduction- in- force test requires that

O'Connor show "that persons outside the protected class were

retained in the same position or that there was some other evidence

indicating that the employer did not treat age neutrally in deciding to

dismiss the plaintiff." Herold v. Hajoca Corp., 864 F.2d 317, 320 (4th

Cir.), cert. denied, 490 U.S 1107 (1988). We conclude that O'Connor

failed to demonstrate Consolidated did not treat age neutrally in dis-

charging him.2 Focusing on retaining Finnell and Kiser, O'Connor is

not comparable to Kiser or Finnell since his territory was reduced

prior to his termination due to his slow response to problem accounts.

Because O'Connor is not comparable to these men, comparing perfor-

mance reviews and salaries is inapt. See Cone v. Longmont United

Hosp. Ass'n, 14 F.3d 526, 533 (10th Cir. 1994) (opining that in an age

discrimination case, the plaintiff must be comparable to her replace-

ment). In deciding to keep Finnell and Kiser and discharge O'Connor,

Williams' decision was based on Finnell and Kiser's ability to handle

an enlarged geographic territory; three territories were reassigned to

Kiser because O'Connor was slow in responding to problem

accounts; the fact that these men could handle the larger territories

was critical to the decision to discharge O'Connor. Also, there is

nothing in the record disclosing Hunter's ability or performance dur-

ing the relevant time. Therefore, no comparison can be made between

_________________________________________________________________

2 See n.1.

Hunter and Finnell or Kiser. In fact, a month before O'Connor was

discharged, Williams considered Kiser's ability to manage a larger

geographic territory superior to that of O'Connor. The decision to dis-

charge O'Connor, therefore, was not grounded in invidious dis-

crimination, but rather on the age- neutral reason that O'Connor's per-

formance did not recommend him for the job, while Finnell and

Kiser's did. O'Connor's evidence does not create a genuine issue of

material fact that Consolidated did not treat age neutrally in making

its employment decisions. Additionally, the case law reveals examin-

ing a small pool of employees is not probative of discrimination. See

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir.) (com-

paring four individuals is too small a sample to be probative of dis-

crimination in a ADEA suit), cert. denied, 115 S. Ct. 666 (1994);

Simpson v. Midland- Ross Corp., 823 F.2d 937, 943 & n.7 (6th Cir.

1987) (stating that sample of seventeen in an age discrimination case

was suspect) (collecting cases); see also Iturbe v. Wandel & Golter-

man Technologies, Inc., 23 F.3d 401 (4th Cir. 1994) (unpublished)

(per curiam) (stating that a "court cannot properly draw an inference

of discrimination from a pool of only three employees"). Under these

precedents, no inference of discrimination may be drawn in this suit.

We find that O'Connor failed to satisfy the fourth prong.

III.

As stated, an ADEA plaintiff can establish his claim under the

proof scheme articulated in McDonnell Douglas or under the ordinary

standards of proof used in civil cases. Here, O'Connor appeared to

proceed under both proof schemes. Having concluded that O'Connor

cannot prevail under the McDonnell Douglas paradigm, we analyze

his claim under the standards of proof by direct and circumstantial

evidence used in civil cases.

To succeed on his ADEA claim under the direct standard of proof

scheme, O'Connor must establish the following elements: "(1) that he

. . . was an employee covered by the [ADEA], (2) who suffered an

unfavorable action by an employer covered by the[ADEA], and (3)

that age was a determining factor in the action in the sense that but

for [Consolidated's] intent to discriminate on the basis of age,

[O'Connor] would not have been subjected to the employment

action." Clay Printing Co., 955 F.2d at 941 (internal quotation marks

omitted). To defeat a motion for summary judgment under this

scheme, O'Connor must "`produce direct evidence of a stated purpose

to discriminate [on the basis of age] and/or circumstantial evidence of

a stated purpose to discriminate [on the basis of age] of sufficient pro-

bative force to reflect a genuine issue of material fact.'" Id. (quoting

Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988))

(alteration in original). "Direct evidence of discrimination is evidence

which, if believed, would prove the existence of a fact . . . without

any inference or presumptions." Bodenheimer v. PPG Indus., Inc., 5

F.3d 955, 958 (5th Cir. 1993). The same summary judgment standard

applies under this proof scheme.

The direct evidence on which O'Connor relies to establish his case

are three statements about age- related matters made by Williams.

While derogatory remarks may be direct evidence of age discrimina-

tion, see Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.

1985), cert. denied, 475 U.S. 1016 (1986), the decisional law "clearly

reflects that isolated and ambiguous statements . . . `are too abstract,

in addition to being irrelevant and prejudicial, to support a finding of

age discrimination,'" Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d

309, 314 (6th Cir. 1989) (quoting Chappell v. GTE Prods. Corp., 803

F.2d 261, 268 n.2 (6th Cir.), cert. denied, 480 U.S. 919 (1987)). Dis-

criminatory remarks concerning age, therefore, cannot be stray or iso-

lated statements. According to the Seventh Circuit,"[u]nless the

remarks upon which plaintiff relies were related to the employment

decision in question, they cannot be evidence of a discriminatory dis-

charge." McCarthy v. Kempter Life Ins. Co. , 924 F.2d 683, 686- 87

(7th Cir. 1991). As this court has opined, there must be some "nexus

. . . between the alleged discriminatory statements and any of the

employment decisions made by the [employer]." Clay Printing Co.,

955 F.2d at 942; see also Figures v. Board of Pub. Utils., 967 F.2d

357, 360- 61 (10th Cir. 1992) (noting that racial comments are not

probative of discrimination unless they are linked to the challenged

action); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438- 39 (9th

Cir. 1990) (holding that certain statements unconnected to the

employment decision- making process are simply stray remarks that

do not demonstrate discriminatory intent). With these principles in

mind, we consider the challenged statements.

The first statement was made two days before O'Connor's dis-

charge. Williams remarked that "[i]t's about time we get some young

blood in this company." (J.A. 122). This comment was made in

response to a comment by Don Dillingham, another Consolidated

employee, that his fiftieth birthday was fast approaching. This appar-

ently humorous comment is not probative of age discrimination. First,

as the Birkbeck court explained, comments such as this are innocuous

and create no inference of age bias. The Birkbeck court ruled that the

statement "`there comes a time when we have to make way for youn-

ger people,'" simply lacks discriminatory intent and is more accu-

rately understood as a commentary on the fact that all people age.

Birkbeck, 30 F.3d at 511- 12; see also Clay Printing Co., 955 F.2d at

942 (holding that an employer's comment that the employer needed

to "`attract newer, younger people'" and needed "`young blood'"

failed to establish direct evidence of age discrimination); Gagne, 881

F.2d at 314 (holding that the employer's comment that he "`needed

younger blood'" did not raise a material fact with respect to establish-

ing age discrimination). Second, there is no nexus linking this state-

ment to O'Connor's termination as required by Clay Printing Co. See

Cone, 14 F.3d at 531 (ruling that "[i]solated comments, unrelated to

the challenged action, are insufficient to show discriminatory animus

in termination decisions"). Additionally, this comment does not

evince an intent to discharge an older employee, but merely to attract

some young ones. See Clay Printing Co., 955 F.2d 942.

The second statement, made two weeks prior to O'Connor's dis-

charge, consisted of the following: "`O'Connor, you are too damn old

for this kind of work.'" (J.A. 125). O'Connor testified, however, that

he did not remember what he and Williams were discussing when this

comment was made or whether this comment was in relation to a

business matter. (J.A. 124- 25). Thus, there is no evidence that this

statement was made in the context of replacing O'Connor. Without

this requisite nexus, this statement evinces no discriminatory intent.

See id.

The third statement, uttered in either June or July of 1990, was

made in connection with O'Connor's ability to play golf. That state-

ment was made under the following circumstances: O'Connor, Wil-

liams, and Steve Carpman, another Consolidated employee, were

watching a golf match on television. O'Connor stated that he

"couldn't walk that many rounds of golf for five days to play 18 holes

for five days." (J.A. 127). Williams responded to this comment by

stating that O'Connor was just "too old." Again this inane statement

was in reply to O'Connor's jocular declaration that he was too old to

play eighteen holes of golf. Here again, there is nothing linking this

remark with O'Connor's discharge. We agree with the district court

that these remarks are simply stray comments that do not establish

evidence of age discrimination.

We explained the infirmities with respect to O'Connor's indirect

evidence in section IIB. The same reasoning obtains here. The district

court dismissed this evidence as insufficiently probative to establish

O'Connor's claim, and we agree with this conclusion.

IV.

O'Connor raises two other issues, but they merit scant attention.

First, he asserts that the district court erred in refusing him certain dis-

covery requests. Reversal of discovery rulings is proper "only on a

clear showing of abuse, and `it is unusual to find abuse of discretion

in these matters.'" United Presbyterian Church in the United States

v. Reagan, 738 F.2d 1375, 1382 (D.C. 1984) (quoting Swanner v.

United States, 406 F.2d 716, 719 (5th Cir. 1969)). We have carefully

examined the discovery issues and conclude that the district court did

not err with respect to these rulings. Second, O'Connor contends that

the district court erred in denying his Rule 59 motion, which the dis-

trict court construed as a Rule 60(b)(2) motion, based on Dennis' affi-

davit. We have examined this affidavit, and we agree with the district

court that this evidence fails to satisfy the criteria for granting relief

under either Rule 59 or Rule 60. See Boryan v. United States, 884

F.2d 767, 771 (4th Cir. 1989).

We conclude that regardless of how O'Connor's claim of age dis-

crimination is viewed, he failed to raise a genuine issue of material

fact precluding summary judgment. We therefore affirm the district

court's grant of summary judgment in favor of Consolidated. We

have examined carefully O'Connor's discovery request and his Rule

59 motion and conclude that they are without merit; thus, we affirm

those rulings as well. The judgment of the district court is, in all

respects, affirmed.

AFFIRMED

BUTZNER, Senior Circuit Judge, concurring in part and dissenting

in part:

I reluctantly concur in the court's conclusion that O'Connor cannot

make out a prima facie case of discrimination under the framework

set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

because he was not replaced by someone outside the protected class.

This circuit's version of the McDonnell Douglas formula requires

an ADEA plaintiff to demonstrate that he was replaced by someone

outside the protected age group. See, e.g., EEOC v. Clay Printing Co.,

955 F.2d 936, 943 (4th Cir. 1992); EEOC v. Western Elec. Co., 713

F.2d 1011, 1015 (4th Cir. 1983). These cases compel my concurrence.

Such an absolute requirement, however, has no justification in law

or policy. The Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq., states that its objective is"to prohibit arbitrary age dis-

crimination." 29 U.S.C. § 621(b). The Act contains no language per-

mitting employers to favor a younger employee over an older one on

the basis of age simply because the younger employee is within the

protected age group.

As a method of proof, the McDonnell Douglas paradigm was "not

intended to be rigid, mechanistic or ritualistic." Furnco Constr. Co.

v. Waters, 438 U.S. 567, 577 (1978). The age of a replacement

employee should be a relevant, but not dispositive, factor for a court

to consider when deciding whether the plaintiff has established a

prima facie case under the McDonnell Douglas framework.

Most other circuits take this approach and observe that a plaintiff

need only show he was replaced by someone younger, whether out-

side or within the protected age group. See Freeman v. Package

Machinery Co., 865 F.2d 1331, 1335 n.2 (1st Cir. 1988); Haskell v.

Kaman Corp., 743 F.2d 113, 122 (2d Cir. 1984); Maxfield v. Sinclair

Int'l, 766 F.2d 788, 792- 93 (3d Cir. 1985); Bienkowski v. American

Airlines, 851 F.2d 1503, 1506 (5th Cir. 1988); Kralman v. Illinois

Dep't of Veterans' Affairs, 23 F.3d 150, 153- 56 (7th Cir. 1994);

Rinehart v. City of Independence, 35 F.3d 1263, 1265- 66 (8th Cir.

1994); Douglas v. Anderson, 656 F.2d 528, 531- 33 (9th Cir. 1981);

Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1547 (10th Cir.

1988); Carter v. City of Miami, 870 F.2d 578, 582- 83 (11th Cir.

1989); Cuddy v. Carmen, 694 F.2d 853, 857 (D.C. Cir. 1982); see

also Lovelace v. Sherwin- Williams Co., 681 F.2d 230, 237 n.5 (4th

Cir. 1982) (dictum). But see LaPointe v. United Autoworkers Local

600, 8 F.3d 376, 379 (6th Cir. 1993) (requiring plaintiff to show that

replacement was outside protected age group).

I respectfully dissent from the court's conclusion that, under ordi-

nary standards of proof, O'Connor failed to raise an inference of dis-

crimination. An ADEA plaintiff may prevail on a discrimination

claim by demonstrating, through direct or circumstantial evidence,

that but for an employer's motive to discriminate on the basis of age

the plaintiff would not have been discharged. Clay Printing, 955 F.2d

at 940; Lovelace, 681 F.2d at 239.

O'Connor has presented sufficient evidence of discriminatory

motive to survive summary judgment. He testified in his deposition

that Ed Williams, his supervisor, told him two weeks before his dis-

charge, "O'Connor, you're too damn old for this kind of work." Wil-

liams denied making this statement.

Additionally, in his postjudgment motion, O'Connor provided the

court with the affidavit of Phillip Dennis, who was a coworker of

O'Connor. In his affidavit Dennis states that Williams told him Ted

Arts, Williams's boss, had ordered Williams to fire O'Connor. When

Dennis asked why O'Connor was fired, Williams responded "that all

of us were getting old, that Jim [O'Connor] was getting old." Because

this affidavit was not reasonably available earlier, I believe the district

court should not have rejected it.

These statements create a genuine issue of material fact that should

be decided at trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A jury could reasonably infer from Williams's statement

or from the information contained in the Dennis affidavit that age was

the determining factor in O'Connor's discharge. Because a trier of

fact should determine O'Connor's claim, I would vacate the judgment

of the district court and remand for a full evidentiary hearing.

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