UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 97-60116
Summary Calendar
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GEORGE E. DULIN,
Plaintiff-Appellant,
versus
DOVER ELEVATOR COMPANY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:96-CV-15-B-A)
_________________________________________________________________
March 2, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Plaintiff-appellant George Dulin brought suit against his
employer, Dover Elevator, claiming age discrimination under the Age
Discrimination in Employment Act 29 U.S.C. §621 et. seq. (ADEA).
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
The district court granted Dover Elevator’s motion for summary
judgment. We affirm.
I. FACTS
Appellant was employed by Dover Elevator as a
Construction Superintendent II. His primary duty was to supervise
construction crews within the company’s Memphis, Tennessee,
district. He was paid one of the highest salaries in the Memphis
district.
On September 22, 1994, at the age of sixty, appellant was
terminated. He had been employed by the appellee for twenty-seven
years and had an exemplary record. Appellant claims that his
termination was the result of age discrimination, because his
position was not eliminated, but rather he was replaced by a
younger person.
Appellee asserts that the Memphis district construction
division began to lose substantial amounts of money in 1990 and
that, as a result, various cost cutting measures were implemented.
Appellee asserts that after projecting further losses in 1994, it
eliminated appellant’s supervisory position and divided his duties
among two other existing employees. District manager Ken Dover and
the New Equipment Sales Manager, George Robbins, both took some of
appellant’s former duties, but without promotion or a pay raise.
Appellee maintains that there has been no Construction
2
Superintendent II in the Memphis district since the appellant was
terminated in 1994.
II. DISCUSSION
A. Standard of Review
This court reviews a grant of summary judgment de novo.
See Brown v. CSC Logic, Inc., 82 F.3d. 651, 653 (5th Cir. 1996).
It may affirm the district court’s grant of summary judgment on any
ground raised in the district court and upon which both parties had
the opportunity to present evidence. See id. at 653-54. Summary
judgment is proper if the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to summary judgment as
a matter of law.” FED. R. CIV. P. 56(c). On a motion for summary
judgment, the movant has the initial burden of showing the absence
of a genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). To find that no genuine issue of
material fact exists, the court must determine that no reasonable
trier of fact could find for the nonmovant. See Matsushita Elec.
Indus. v. Smith Radio Corp., 475 U.S. 574, 587 (1986). In making
that determination, the court must draw all justifiable inferences
in favor of the nonmoving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
B. The Parties’ Evidentiary Burden
3
The ADEA makes it unlawful 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. § 623(a)(1). The
parties’ evidentiary burdens are well established. See Brown, 82
F.3d. at 654. The plaintiff must first establish a prima facie
case of employment discrimination by a preponderance of the
evidence, which creates a rebuttable presumption. See Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 957 (5th Cir. 1993). To rebut
this presumption, the defendant must articulate a legitimate, non-
discriminatory reason for the adverse employment action taken. See
Texas Dep’t. Of Community Affairs v. Burdine, 450 U.S. 248, 253-54
(1981). If the employer is able to present such evidence, the
presumption dissolves, and the burden of production shifts back to
the plaintiff to present probative evidence that the employer’s
stated reason was not the true reason for the action taken, but
rather a pretext for age discrimination. See Bodenheimer, 5 F.3d
at 957-58.
C. The Prima Facie Case
Four elements make up a prima facie case under the ADEA.
The plaintiff must prove that: (1) he was discharged; (2) he was
qualified for the position; (3) he was within the protected class;
and (4) he was replaced by someone outside the protected class,
4
someone younger, or was otherwise discharged because of his age.
See Bodenheimer, 5 F.3d at 957.
The appellee has conceded, and the district court agreed,
that the appellant has established the first three elements of his
prima facie case. The district court found that appellant had not
established the fourth element, agreeing with the appellee that
appellant’s position had been eliminated and his duties divided
among other employees. On appeal, appellant contends that he
established the fourth element, by showing that he was replaced by
someone outside the protected class. We agree with the district
court and the appellee that appellant has failed to raise an issue
of material fact surrounding the fourth element .
The evidence presented by the appellant is insufficient
to establish the fourth element of his prima facie case. Appellant
has failed to show by a preponderance of the evidence that he was
replaced by someone outside the protected class or by someone
younger, or that he was otherwise discharged because of age. The
evidence that the appellant offers to prove this element serves
only to support the contention of the appellee that the appellant’s
position was eliminated and that the duties of construction
superintendent were taken up by two existing employees, Ken Donner
and George Robbins. First, the personnel record of George Robbins
states that the responsibilities of construction superintendent
were added to his duties after appellant was fired. Second, the
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memo to George Robbins of February 7, 1996, refers to his sales and
construction supervisory duties. Third, the affidavits of Larry
Wilson, Shelby County Code Enforcement Officer, Curt Wilson,
business representative of the International Union of Elevator
Constructors, Billy Keith Wilson, employee of Dover Elevator
Company and Mark Ward, Director of Operations and Maintenance for
St. Jude Hospital in Memphis, Tennessee, stating that George
Robbins (and later Bill Batts) began performing the duties once
performed by George Dulin support Dover Elevator’s assertion that
other employees took over appellant’s former duties.1
Appellant cites several cases in support of his argument
that he was replaced. First, appellant cites Gallo v. Prudential
Residential Serv. LTD. Partnership, 22 F.3d 1219 (2nd Cir. 1994).
In Gallo, unlike the present case, the employer’s policy and
procedure manual required that Gallo be considered for a transfer.2
Additionally, the employer refused to consider Gallo when she
applied for the new position it created by resurrecting Gallo’s
former position and, instead, hired a much younger new employee.
1
Appellant also points to the 1995 and 1996 editions of a
publication entitled Who’s Who in Memphis and Midsouth Business,
which lists George Robbins as the Construction Superintendent for
Dover Elevator. This document has not been authenticated and was
not addressed by the district court.
2
A similar situation existed in Rottersman v. CBS, Inc.,
726 F.Supp 484 (S.D.N.Y., 1989), also cited in the appellant’s
brief. Again, in that case the employer’s company manual required
an attempt to place the terminated employee in another position.
No such company policy exists in the present case.
6
Here, Dover Elevator did not hire a new employee to take
appellant’s place.
Second, appellant cites Moody v. Pepsi Cola Metro.
Bottling Co., 915 F.2d 201 (6th Cir. 1990). In this case, the
employer’s stated reason for termination was a reduction in force,
but after plaintiff’s termination the employer had only one less
employee than before. Later the employer tried to claim that Moody
had been discharged for poor work performance. Here, appellant was
told that it was only his job that was being eliminated and
appellee has never claimed otherwise.
In contrast to the cases cited by appellant, applicable
case law holds that when an employee’s position has been eliminated
and the job duties reassigned to existing employees, that employee
has not been replaced. See Smith v. F.W. Morse & Co., 76 F.3d 413,
423 (1st Cir. 1996) (finding that a position elimination defense is
not defeated merely because another employee, already on the
payroll, is designated to carry out some or all of the discharged
employee’s duties in addition to his own, or because those duties
are otherwise reallocated within the existing work force); Barnes
v. GenCorp., Inc., 896 F.2d 1457, 1465 (6th Cir. 1990) (finding
that a person is not replaced when another employee is assigned to
perform the plaintiff’s duties in addition to their other duties,
or when the work is redistributed among other existing employees
already performing related work).
7
This court agreed with the basic reasoning of the First
and Sixth Circuits in Armendariz v. Pinkerton Tobacco Co., 58 F.3d
144 (5th Cir. 1995). In Armendariz, the appellant’s sales job
covering specific territory was eliminated. Part of the territory
was given to another salesperson while the remaining territory was
taken over by an independent broker. This court found that the
employer had properly characterized the appellant’s termination as
a “reduction in force” or “job elimination.” See id. at 150.
In the alternative, to prove the fourth element of his
prima facie case for age discrimination, the appellant may offer
evidence to prove that he was otherwise discharged because of age.3
The district court found that the only evidence that appellant
could offer to prove he was discharged because of age was his own
subjective belief.4
3
In his brief, appellant does not draw a distinction
between the alternative arguments to establish his prima facie
case.
4
In his brief, appellant raises such fact issues as
whether appellee suffered overall financial loses in 1994-96 and
that he was not offered a lateral transfer to another position.
These points would be better argued in an attempt to show that
appellee’s stated reasons for appellant’s termination were not the
true reasons, but a pretext for age discrimination. At any rate,
the evidence on record shows that Dover Elevator did suffer losses
in the construction division in 1994-96. Further, appellant has
offered no proof that Dover Elevator was required by its company
policies and procedures to offer appellant a transfer or that any
such positions were available and that a transfer was requested by
appellant.
8
Because we find that the appellant has failed to
establish the fourth element of his prime facie case, it is not
necessary to proceed further in our analysis.
III. CONCLUSION
Because plaintiff-appellant has failed to establish his
prima facie case for age discrimination, we affirm.
AFFIRMED.
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