UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2331
DEBORAH T. RUFF,
Plaintiff - Appellant,
versus
TARGET STORES, Incorporated,
Defendant - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
District Judge. (CA-04-54-3)
Argued: January 30, 2007 Decided: March 14, 2007
Before WIDENER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Williams wrote the opinion,
in which Judge Widener concurred. Judge Shedd wrote a separate
concurring opinion.
ARGUED: Jenny Lu Sharpe, Charlotte, North Carolina, for Appellant.
Raymond Charles Baldwin, SEYFARTH & SHAW, L.L.P., Washington, D.C.,
for Appellee. ON BRIEF: Jessica R. Hughes, SEYFARTH & SHAW,
L.L.P., Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
WILLIAMS, Circuit Judge:
Deborah Ruff appeals the district court’s grant of summary
judgment to Target Stores, Inc. (“Target”) on Ruff’s claims of age
discrimination in violation of the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2006), and
the North Carolina Equal Employment Practices Act, N.C. Gen. Stat.
§ 143-422.2 (2005). Ruff argues that the district court erred in
finding that she could not show that she was meeting Target’s
legitimate expectations or that Target’s justification for
terminating her was pretextual and in concluding that she could not
proceed under the “mixed-motive” framework established by the
Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),
because she lacked direct evidence of age discrimination. Because
Ruff has not provided evidence that would allow a reasonable jury
to determine that Target discriminated against her on the basis of
age, we affirm.
I.
Because this is an appeal from the district court’s grant of
summary judgment to Target, we review the facts in the light most
favorable to Ruff. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (noting that all evidence must be construed in the
light most favorable to the party opposing summary judgment).
2
In 1990, Ruff was hired as an area manager at a Target store
in Gastonia, North Carolina. Her job required her to manage a
particular area of the store, called “hardlines,” which included
merchandise such as electronics, books and sporting goods. Target
referred to this position as Executive Team Leader or “ETL”
hardlines.1 As part of her job, Ruff managed the entire store on
a rotating basis with other area managers. On these days she was
the “Leader on Duty” or “LOD.” Ruff’s immediate supervisor at the
Gastonia Target was the Store Team Leader, Mark Burud.
Toward the end of the 1990s, Target stores in the Charlotte
district, of which Gastonia formed a part, were underperforming.
In an effort to boost their profitability, Target hired J.J.
Erlbacher as the District Team Leader for the Charlotte district in
2000. At some point after Erlbacher accepted the position, Marvin
Glenn Kiser, the Gastonia Target’s Assets Protection Team Leader,
heard Erlbacher make a statement to the effect that “he wanted to
replace team leaders with younger college graduates, because they
were ‘the way of the future for Target.’” (J.A. at 632.)2 Kiser
could not remember if Erlbacher made the statement before or after
Ruff was terminated. Ruff remembers a lunchtime conversation at
1
Target stores generally have ETLs for the following
departments: hardlines, softlines, guest services, logistics, and
team relations, although the total number of ETLs in a given store
may vary by the size and sales volume of the store.
2
Citations to the “J.A.” refer to the joint appendix filed
with this appeal.
3
Target in which another ETL, Bill Plafcan, mentioned that everyone
Erlbacher hired seemed to be young and straight out of college.
Ruff responded that she had been told that “that was the direction
of the company, that . . . you could not be an executive anymore
unless you were a college graduate.” (J.A. at 347.) Ruff did not
have a college degree, but at the time she was hired, Target
required “either a college degree or . . . years of experience in
retail management,” which she did have. (J.A. at 347-48.) She
asked Plafcan, who did not have a college degree, “weren’t you
hired by [Erlbacher],” and he responded that he “slipped in under
the fence before [Erlbacher] got here.” (J.A. at 348.)
Ruff was 47 years old in 2000, when Erlbacher became the
Charlotte DTL. After 2000, the scores that she received on her job
evaluations began to decline. Ruff’s 2000 job evaluation was an
83.2 out of 100, which Target considered “excellent,” although the
evaluation identified a number of areas in which Ruff’s performance
was weak, such as “effective use of time,” “manag[ing] performance
and development plans,” and “establish[ing] clear directions.”
(J.A. at 61-73.) Ruff received a score of 75.4 on her 2001 job
evaluation, which Target considered “satisfactory plus.” The 2001
evaluation again identified “effective use of time,” “manag[ing]
performance and development plans,” and “establish[ing] clear
directions” as areas in which Ruff needed to improve. (J.A. at 83,
219-231.)
4
In January 2002, Brian Fiala, the Senior Vice President of the
North/East Region of Target, conducted a visit to the Gastonia
store. Ruff was the LOD on the day of his visit, which meant that
she was responsible for the condition of the store. Fiala was very
displeased with what he saw and complained to Erlbacher. Fiala
expressed concern that product in the back was not being put out on
display and also criticized the general condition of the store and
the leadership in the building. He was particularly upset that
Ruff seemed “nonchalant” about the problems. Erlbacher remembers
Fiala remarking that Ruff had “kind of laughed” and made a comment
about getting to it later, which Fiala perceived as evidencing a
lack of accountability and desire to excel at Target. (J.A. at
132.) According to Erlbacher, Fiala would have preferred that Ruff
“be up front with [him]” and let him know that she had a “plan of
action” to address the problems. (J.A. at 133.)
In July 2002, Burud told Ruff that Erlbacher wanted her
resignation, which Ruff declined to give. Burud explained that a
store visit that Erlbacher had conducted had not gone well. Ruff
responded that this was because another ETL, Ames Livingston, had
left the store in disarray, and merchandise was stacked in the
aisles when she arrived at the store on the date of the inspection.
She asked if Livingston would also be asked to resign. Burud
replied that Livingston would “get a message,” but it “[would not]
be the same message [as Ruff received] because . . . he [was]
5
working on his master’s and [Erlbacher could] see him as a future
store manager and [Erlbacher did not] see [Ruff] as ever running a
Target store.” (J.A. at 382.) Ruff responded that she had never
claimed that she wanted to become a store team leader and that
Erlbacher’s predecessor had been aware of and comfortable with her
desire to remain an area manager throughout her career at Target.
Ruff’s 2002 mid-year job evaluation covered her performance
from January to July of that year. Target had changed the format
for its evaluations in 2002 and was no longer using a numerical
score. Instead, Target had adopted “The E’s of Excellence.” The
E’s refer to Energy, Enthusiasm, Execution, and Excellence, and
Target has a pamphlet that explains how to excel in each of the
E’s. Ruff was rated medium low in all E’s except enthusiasm, in
which she was medium. The evaluation included comments explaining
the rating under each E. The comments indicated that she needed to
“hold her team accountable,” “manage performance consistently,”
“manage execution consistent everyday,” and that “consistent brand
management must be achieved each day.” (J.A. at 87.) The new
format also rated the employee’s performance as either “meeting
expectations” or “not meeting expectations.” Ruff’s evaluation
indicated that she was not meeting expectations. Ruff questioned
the validity of criticism contained in the 2002 mid-year
evaluation, because much of it related to incidents that occurred
early in the year and had never been previously discussed with her;
6
these incidents included poor inspections in January, February,
March, and April. There was no independent documentation
supporting the criticism.
Over the next two months, Burud documented several instances
in which Ruff’s performance was lacking. Burud’s notes indicated
that the problems included failing to have a “total store focus,”
not meeting deadlines, failing to follow up on the days she was in
charge of the store, spending too much time talking, gossiping, and
loafing, failing to give staff an action plan over a long weekend,
and disrespecting staff. Burud also noted instances in which Ruff
did not return to work after an appointment and did not call to
explain her continued absence, as well as one occasion on which
Livingston found himself obligated to “pull together a lot of
things . . . in [Ruff’s] area” before a visit from Erlbacher.
(J.A. at 1230.)
In August 2002, Burud issued Ruff a Written Counseling, the
first disciplinary step in Target’s discipline program, identifying
the problems with her performance over the course of 2002. Ruff’s
work did not improve, and in September 2002, Burud issued her a
Written Warning, the second step in Target’s discipline program,
identifying many of the same problems as in her Written Counseling.
Ruff complained about her evaluation to Burud, who told her,
“Debbie, do you know how bad this is tearing me up to do this.”
(J.A. at 480.) Still, Ruff’s performance did not improve, and
7
Erlbacher remained both dissatisfied and unsympathetic. He
conducted three or four inspections of the Gastonia store during
Ruff’s final months as ETL hardlines and noticed that Ruff was
either not present at all during his visits or appeared briefly,
only to leave the store in what he perceived as an inexplicable
hurry. Erlbacher attributed Ruff’s absence to “a major problem
with conflict avoidance” and was unaware of any legitimate reasons
that Ruff might have had for her absence or unavailability. (J.A.
at 876-77.) In November 2002, Burud issued Ruff a Final Warning,
the third and final step in Target’s discipline program,
identifying the same problems as the earlier warnings. Ruff asked
Burud what she could do to improve her performance and stop
receiving negative feedback. He replied “well, Debbie, I know you
are working very hard, and I know there are some days that you are
making the time lines down there, but . . . there is not going to
be any change in your performance unless upper management changes.”
(J.A. at 502-03.) Ruff responded, “I guess I will be terminated
because J.J. Erlbacher is not going away.” (J.A. at 503.)3
Ruff believed that at that point Erlbacher had already made up
his mind about her and had decided to force her to resign.
Previously, Kiser had told Ruff that Erlbacher and Burud had stated
3
Only Burud, Erlbacher, and another supervisor, Landis, would
have had input into the decision to issue counseling or warnings to
Ruff. Both Burud and Erlbacher had input into the decision to
terminate Ruff.
8
in his presence that, “When a person is perceived . . . as a poor
performer, one of the best ways to deal with getting rid of that
person is to shut them out as a team; in other words, don’t give
them any help and don’t include them.” (J.A. at 1291.) Also,
Burud had told Ruff to give another former ETL at the Gastonia
Target, Pam Rea, this treatment, instructing her not to help Rea
and to “[l]et her hang herself.” (J.A. at 366.) Burud explained
that he had spoken to Erlbacher and that if Rea’s coworkers shut
her off from the team and declined to support her, she would “go
away.” (J.A. at 367.) Rea did leave the Gastonia store. She
resigned in the beginning of 2002 at age 50 and was replaced by
Seth Finkey, age 23.
Burud told Ruff that Erlbacher disliked Rea immediately,
explaining that, “He didn’t like how she toured. He didn’t like
how she giggled. He did not like her personality.” (J.A. at 368.)
Ruff believed that Rea had been “doing adequate,” but noted that
Rea seemed to irritate some of the executives because she was “a
perfectionist” and “very by the book.” (J.A. at 368.) Ruff did
not opine as to whether Burud or Erlbacher shared her belief that
Rea’s performance was adequate and did not specify whether
Erlbacher and Burud were among the executives irritated by Rea’s
inflexibility.
Ruff believed that Andrew Kehoe, another ETL who left the
Gastonia Target in early 2002, fell victim to the same scheme.
9
According to Ruff, “He was under a lot of pressure. They were
saying that he wasn’t doing his job. He wasn’t meeting his time
lines and expectations and he gave his resignation in February and
left.” (J.A. at 1203.) She felt that although Kehoe might have
appeared to be falling short of Target’s expectations, this
appearance was due to the fact that “he didn’t get the payroll
support and the scheduling support that he needed in the back
room.” (J.A. at 1203.) Kehoe was 32 at the time of his
resignation and was replaced by Bill Plafcan, age 36.
Ruff perceived her treatment by supervisors to be worse than
simply being isolated or denied support. She believed that
Livingston and another ETL, Therese Roberts, at Erlbacher’s
request, purposefully sabotaged her by ensuring that she was
consistently understaffed and overworked. This sabotaging made it
impossible for her to meet deadlines and keep the store looking
nice, and sometimes required her to have staff work overtime.
At one point, Ruff asked Erlbacher to tell her what he did not
like about her and what she could do to change his opinion.
Erlbacher “kind of reared back and [said] high energy,
enthusiastic, do you get where I’m coming from?” (J.A. at 401.)
Ruff took Erlbacher’s comment to mean that she “was not young and
peppy and high energy and bubbly because he had made the comment
that we wanted young and bubbly people or [Burud] had told us
that’s what [Erlbacher] had wanted, young, bubbly people.” (J.A.
10
at 401.) When asked about this exchange by Target’s attorney, Ruff
described it in slightly different terms. She explained that she
had asked Erlbacher what exactly was wrong with her performance,
and Erlbacher replied that she was “not high energy and energetic
and that’s what I’m looking for.” (J.A. at 157.) Ruff interpreted
the “high energy” comments as related to her age but never asked
Erlbacher for clarification on this point.
Ruff filed a charge of discrimination with the EEOC on
November 18, 2002. When asked why she filed the charge at that
time, after never having mentioned that she thought the counseling
and warnings were the product of discrimination when she received
them, Ruff responded that, “I think that’s when it . . . hit home
to me that this is going to the end. You are going to be
unemployed on December 1st, and it’s no fault of yours. It’s
because one person in this company does not like you.” (J.A. at
175-76.)
Ruff was terminated on December 18, 2002. She was replaced by
Ames Livingston, a 24-year-old who had been the manager of another
area (the “ETL softlines”). Livingston’s numeric score for 2001
was 76.9, and his 2002 mid-year review indicated that he was
“meeting expectations.” (J.A. at 769, 774.) Livingston had
received numerous counselings over performance issues at Target
while he was ETL softlines. He had arrived late on a number of
occasions, once because he was being bailed out of jail for an
11
alcohol-related offense. He also had attendance issues and had
come to work smelling of alcohol. Target claimed that Livingston
was not asked to resign as a result of these instances because he
responded to constructive criticism and improved his performance,
and because he had the motivation and the potential to advance in
his career at Target. Ruff corroborated this explanation somewhat,
noting that when Burud had told her in July 2002 that he was asking
for her resignation and not Livingston’s, it was because Erlbacher
could see Livingston, but not Ruff, as a future store team leader.
In addition, Ruff asserted that Livingston was “protected” because
he was a friend of Erlbacher’s. (J.A. at 337.) Kiser also opined
that Erlbacher seemed to favor Livingston over other ETLs because
Erlbacher was a friend of Livingston’s father.
On January 6, 2004, Ruff filed a complaint alleging age
discrimination in violation of the ADEA and the North Carolina
Equal Employment Practices Act, as well as other claims arising out
of her dismissal,4 in state court in Gaston County, North Carolina.
Target removed the case to the United States District Court for the
Western District of North Carolina. Target moved for summary
judgment, and the district court granted the motion, finding that
Ruff could not establish a prima facie case of age discrimination
4
Ruff’s complaint included gender discrimination claims, which
she dismissed during the proceedings before the district court.
Ruff also unsuccessfully pursued a retaliatory discharge claim
before the district court, but chose not to appeal that issue.
12
because she could not show that she was meeting Target’s legitimate
expectations. Assuming arguendo that Ruff had established a prima
facie case, the district found that Ruff’s age discrimination
claims would still fail, because she could not show that Target’s
asserted reason for her dismissal was pretextual. The district
court assumed that Ruff could not benefit from a “mixed-motive”
analysis because she lacked direct evidence of discrimination.
Ruff timely appealed. We have jurisdiction pursuant to 28
U.S.C.A. § 1291 (West 2006) (providing for appellate jurisdiction
over “final decisions” of the district court).
II.
We review de novo the district court’s grant of summary
judgment, applying the same standards that the district court was
required to apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006) (en banc). “Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en
banc) (internal quotation marks omitted). We construe the evidence
in the light most favorable to the non-moving party (Ruff) and draw
all reasonable influences in her favor. Id.
13
The ADEA makes it illegal for an employer to “discharge any
individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C.A. §
623(a)(1). To succeed on an ADEA claim, the plaintiff must
demonstrate, by a preponderance of the evidence, that “the
plaintiff’s age . . . actually played a role in the employer’s
decisionmaking process and had a determinative influence on the
outcome.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 141 (2000) (internal quotation marks and alteration omitted).
A plaintiff can establish an ADEA claim “through two alternative
methods of proof:” (1) a “pretext” framework that employs the
McDonnell Douglas burden-shifting analysis used in Title VII cases,
or (2) a “mixed-motive” framework. EEOC v. Warfield-Rohr Casket
Co., 364 F.3d 160, 163 (4th Cir. 2004).5 The district court
applied the pretext framework to Ruff’s case. Ruff argues that (1)
her age discrimination claims should have survived summary judgment
under the pretext framework, and (2) the district court erred in
assuming that she was not entitled to proceed under the mixed-
5
The North Carolina Equal Employment Practices Act, N.C. Gen.
Stat. § 143-422.2 (2005), provides, in pertinent part, that it is
North Carolina’s public policy to “protect and safeguard the right
and opportunity of all persons to seek, obtain and hold employment
without discrimination or abridgment on account of . . . age . . .
by employers which regularly employ 15 or more employees.” We
apply the same evidentiary standards utilized in evaluating ADEA
claims to state law claims under § 143-422.2. See Hughes v.
Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995).
14
motive framework because she lacked direct evidence of age
discrimination. We address each argument in turn.
A.
Under the “pretext” framework, a plaintiff must establish a
prima facie case of discrimination by showing, by a preponderance
of the evidence, that (1) she is a member of a protected class6;
(2) she suffered adverse employment action; (3) she was performing
her job duties at a level that met her employer’s legitimate
expectations at the time of the adverse employment action; and (4)
the position remained open or she was replaced by a substantially
younger individual. O’Connor v. Consol. Coin Caterers Corp., 517
U.S. 308, 310-11 (1996) (assuming that the McDonnell Douglas
framework applies in the ADEA context); Hill, 354 F.3d at 285. If
the plaintiff establishes a prima facie case, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. The employer’s burden is one of
production, not persuasion. Hill, at 285. If the employer meets
this burden of production “the McDonnell Douglas framework - with
its presumptions and burdens - disappear[s], and the sole remaining
issue [i]s discrimination vel non.” Reeves, 530 U.S. at 142-43
6
For ADEA purposes, the protected class is individuals who are
at least 40 years of age. See 29 U.S.C.A. § 631(a) (“The
prohibitions in this chapter shall be limited to individuals who
are at least 40 years of age.”).
15
(internal quotation marks omitted). “Although intermediate
evidentiary burdens shift back and forth under this framework, the
ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Id. at 143 (internal quotation marks
and alteration omitted). “And in attempting to satisfy this
burden, the plaintiff . . . must be afforded the opportunity to
prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but
were a pretext for discrimination.” Id. (internal quotation marks
omitted). Thus, “the plaintiff may attempt to establish that [s]he
was the victim of intentional discrimination by showing that the
employer’s proffered explanation is unworthy of credence.” Id.
(internal quotation marks omitted).
The district court found that Ruff could not establish a prima
facie case of age discrimination because she could not show that
she was meeting Target’s legitimate expectations. Ruff argues that
this finding was in error because she met Target’s standards from
the time she was hired through 2001 -- during that period her
performance evaluations never dipped below “satisfactory plus” --
and in 2002, Target’s expectations were not legitimate.
To be sure, a plaintiff may establish a prima facie case by
proffering evidence that demonstrates (or at least creates a
question of fact) that the employer’s expectations were
16
illegitimate. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, (4th
Cir. 2006) (explaining that “[a]lthough on summary judgment an
employer is free to assert that the job expectation prong has not
been met, nothing prohibits the employee from countering this
assertion with evidence that demonstrates (or at least creates a
question of fact) that the proffered ‘expectation’ is not, in fact,
legitimate at all.”). Even if we assume that Ruff was consistently
understaffed and overworked such that she could not legitimately be
expected to meet certain timelines, however, there remain numerous
instances in which there was, in the words of the district court,
“both a reasonable expectation of performance by the employer and
a failure to live up to the standard.” (J.A. at 1402.) Ruff’s
being denied necessary support would not excuse her failure to
demonstrate initiative and accountability during the scheduled
visit from regional vice-president Fiala, nor would it explain her
absence during Erlbacher’s visits. Similarly, Ruff’s being shut
out of the team would not justify her disrespecting staff, not
giving staff an “action plan” before leaving for a long weekend, or
failing to return to work after an appointment despite having
promised to do so.
Ruff has not shown, nor even argued, that she was meeting
Target’s expectations to the extent that they were legitimate.
Although Burud’s comment that despite her hard work and periodic
success at meeting her timelines, “there [was] not going to be any
17
change in [her] performance unless upper management change[d],”
(J.A. at 502-03), supports an inference that Erlbacher was
unwilling to evaluate Ruff objectively, it does not demonstrate
that the instances in which Ruff did not meet expectations (many of
which were documented by Burud) were fabricated. Ruff does not
challenge the veracity of the documented criticism. Rather, she
contends that Target failed to recognize legitimate excuses. For
example, Ruff attempts to cast doubt on the validity of Erlbacher’s
complaints regarding her availability on the dates of his visits by
suggesting that she may have had legitimate motives for her
absences of which he was unaware, but does not dispute the veracity
of his statements that she was unavailable and that he considered
this unavailability a problem. Likewise, Ruff contends that she
did have a plan of action on the date of the disastrous Fiala
visit, but does not challenge Target’s contention that no such plan
was communicated to Fiala. In so doing, Ruff ignores that the
relevant question is whether Target believed she was doing a good
job, not whether someone more familiar with her situation would
have thought so. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.
2003) (holding that an employee’s own testimony cannot establish a
genuine issue of material fact as to whether the employer’s
legitimate expectations were met, because “[i]t is the perception
of the decision maker which is relevant” (internal quotation marks
and citation omitted)).
18
Rather than demonstrating that Target in fact considered her
job performance to be adequate, Ruff attempts to show that any
inadequacies were not the true motivation for her discharge. In
support of this position, Ruff points primarily to Erlbacher’s
statement evincing a desire “to replace team leaders with younger
college graduates,” (J.A. at 632), and to Livingston’s continued
employment with Target despite his failure to meet expectations on
several occasions. The district court found this evidence
insufficient to show pretext, and we agree.
Ruff relies heavily on Erlbacher’s comment that he “wanted to
replace team leaders with younger college graduates, because they
were ‘the way of the future for Target.’” (J.A. at 632.)
Erlbacher’s statement does evidence a bias in favor of younger
employees. It does not, however, indicate that the existing team
leaders who would be replaced would be selected on the basis of
their age. Ruff’s own testimony is that the people Erlbacher went
after were those who were perceived as “poor performers.” Her
testimony also suggested that his primary focus was on the college
degree, which had become a prerequisite to obtaining an executive
position at Target. Ruff noted that the one other employee over 40
who experienced treatment similar to her own was a person whom
Erlbacher disliked personally. The other employee who left the
Gastonia Target during the relevant time period was 32, and he was
replaced by a 36-year-old. Moreover, Ruff stated that she filed a
19
discrimination charge with the EEOC upon realizing that she was
about to lose her job because one person did not like her.
Erlbacher’s comment, although troubling, does not constitute
sufficient evidence on which a jury could conclude that Ruff was
fired because of her age, particularly when viewed in light of the
complete picture that Ruff painted before the district court. We
have previously held that “[t]he mere existence of a scintilla of
evidence in support of the plaintiff’s position will be
insufficient; there must be evidence upon which the jury could
reasonably find for the plaintiff.” EEOC v. Clay Printing Co., 955
F.2d 936, 943 (4th Cir. 1992) (internal quotation marks omitted).
In Clay Printing, a company brought in a consultant who suggested
that “too many people have been around here too long and make too
much money;” he recommended that the company seek to attract
“newer, younger, people” and indicated that “if employees had been
there 10 years or more, they needed to move on.” Id. at 938, 942.
Nevertheless, we concluded that the employees’ claims could not
survive summary judgment, primarily because (1) the rationale for
terminating people –- that they were being overpaid -– applied
equally to employees outside of the protected class, and (2) there
was no statistical evidence that older workers were replaced by
younger workers. Id. Thus, it was clear that employees were being
discharged because they were being overpaid for the work that they
were doing, not because they were old(er).
20
Of course, we noted in Tuck v. Henkel Corp., 973 F.2d 371 (4th
Cir. 1992), overruled on other grounds by Hazen Paper Co. v.
Biggens, 507 U.S. 604 (1993), that in Clay Printing, “the evidence
did not show that the employer’s positive references to younger
potential employees suggested the older existing employees should
be fired.” Id. at 377 n.5 (emphasis added). We stated that “[w]e
do not read Clay Printing’s holding to prevent statements that a
company wants to replace its older employees with younger ones from
being considered evidence of age discrimination . . . .” Id.
(emphasis added). In the case before us, however, Erlbacher’s
statement applies equally to all existing employees and does not
specifically reference older employees. In that respect, it stands
in contrast to Tuck, in which the employees established a prima
facie case, and in which a supervisor “repeatedly stated that he
wanted to get rid of the older people and replace them with ‘young
blood’” and had “pointedly told several older employees . . . that
what Henkel needed was ‘younger people.’” Id. at 377. Such
comments “suggest[ed] a desire to fire older employees and replace
them with younger ones.” Id.
Ruff suggests that Target’s decision not to fire Livingston,
who also failed to meet expectations on a number of occasions,
demonstrates that Target was willing to tolerate substandard work
on the part of a younger employee, and would not have fired her had
she been younger. Livingston’s continued employment, however, is
21
not probative of a discriminatory animus in terminating Ruff.
Target claimed that any difference in the treatment of Livingston’s
and Ruff’s shortcomings resulted from Livingston’s willingness and
ability to improve his job performance and advance his career at
Target and Ruff’s corresponding unwillingness to alter her settled
ways. Ruff partially corroborated Target’s portrayal of the
situation; she offered deposition testimony in which she stated
that when Burud asked for her resignation in July 2002, he revealed
that he would not be making a similar request of Livingston because
Livingston was working on his masters degree and Erlbacher could
see him as an store manager some day, but could not see Ruff ever
running a Target store. Moreover, Ruff offered an additional age-
neutral explanation for any disparate treatment of Livingston. She
asserted that she and her coworkers “all knew [Livingston] was
protected because he was friends with [Erlbacher].” (J.A. at 337.)
Kiser, who offered deposition testimony in support of Ruff’s case,
also stated that he noticed Erlbacher’s relationship with
Livingston “seemed to be more personable and more personal than
[his relationship with] the rest of the ETLs, and [Kiser thought]
that was due to some sort of relationship between [Erlbacher] and
[Livingston’s] father.” (J.A. at 610.)
Accordingly, we conclude that the district court did not err
in finding that the evidence Ruff provided did not show that she
was meeting Target’s legitimate expectations, nor could it support
22
a finding that Ruff’s age, and not her failure to meet her job
requirements, was the reason she was terminated.
B.
The district court stated that Ruff could not benefit from the
“mixed-motive” framework established by the Supreme Court in Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). Ruff concedes that she
lacks direct evidence of age discrimination, but urges us to take
the opportunity to extend the Supreme Court’s holding in Desert
Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003) -- that direct
evidence is not required in Title VII mixed-motive cases -- to age-
discrimination claims. Because we need not address the direct
evidence requirement in order to resolve the case before us, we
decline the invitation.
Ruff contends that the district court was correct in finding
that she lacked direct evidence of age discrimination, but wrong in
assuming that a plaintiff who presents only circumstantial evidence
of discrimination is not entitled to proceed under a mixed-motive
framework. We need not address this issue, however, because even
if we were to hold that a mixed-motive framework is available to
ADEA claimants who lack direct evidence of age discrimination, Ruff
would not be entitled to a mixed-motive jury instruction in this
instance. To pursue a mixed-motive case, a plaintiff must
demonstrate that a “protected trait . . . actually played a role in
23
the employer’s decisionmaking process and had a determinative
influence on the outcome.” Hill, 354 F.3d at 286 (explaining that
“[r]egardless of the type of evidence offered by a plaintiff as
support for her discrimination claim (direct, circumstantial, or
evidence of pretext), or whether she proceeds under a mixed-motive
or single-motive theory, the ultimate question in every employment
discrimination case involving a claim of disparate treatment is
whether the plaintiff was the victim of intentional discrimination”
and “[t]o demonstrate such an intent to discriminate . . . an
individual . . . must produce sufficient evidence upon which one
could find that the protected trait actually motivated the
employer’s decision” (internal quotation marks and alteration
omitted)); Warch, 435 F.3d at 521 (holding that a plaintiff who had
produced some direct and circumstantial evidence had nevertheless
“failed to create a genuine dispute that he was the victim of
illegal age discrimination”); Sanghvi, M.D. v. St. Catherine’s
Hosp., Inc., 258 F.3d 570, 574-75 (7th Cir. 2001) (holding that
“[e]ven in discrimination cases where the plaintiff has direct
evidence, an adverse grant of summary judgment may be proper” as
“in a few select cases a review of the record as a whole may reveal
that the evidence is so one-sided that [the defendant] must prevail
as a matter of law” (internal quotation marks omitted) (alteration
in original)). As discussed above, Ruff cannot prove that she
was the victim of intentional discrimination, because she has not
24
presented sufficient evidence for a reasonable jury to conclude
that Target’s decision to terminate Ruff was motivated, in whole or
in part, by her age.
III.
In sum, we conclude that the district court did not err in
concluding that Ruff had not presented sufficient evidence for a
reasonable jury to determine that Target discriminated against her
on the basis of age. Accordingly, we affirm the judgment of the
district court.
AFFIRMED
25
SHEDD, Circuit Judge, concurring:
I concur in the result reached by the majority. Based on the
record presented, I believe that the district court appropriately
analyzed this case under the McDonnell Douglas framework.* In
doing so, the district court correctly determined that Ruff failed
to establish a prima facie case because she did not show that at
the time she was terminated she was performing at a level that met
Target’s legitimate expectations. Ruff’s inability to establish a
prima facie case is fatal to her claim, and it is unnecessary for
us to consider the district court’s alternative holding regarding
the issue of pretext. Accordingly, I would affirm the summary
judgment.
*I note that Ruff has conceded that she does not have direct
evidence of discrimination, and I agree with the majority that the
mixed-motive framework is not appropriate in this case.
26