Ralph Arthur v. Pet Dairy

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2530

RALPH WILFRED ARTHUR,

Plaintiff – Appellant,

v.

PET DAIRY; LAND-O-SUN DAIRIES, LLC,

Defendants - Appellees.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:11-cv-00042-NKM-RSB)

Argued: December 9, 2014 Decided: February 9, 2015

Before WILKINSON, SHEDD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Terry Neill Grimes, TERRY N. GRIMES, ESQ., P.C.,
Roanoke, Virginia, for Appellant. Victor O’Neil Cardwell, WOODS
ROGERS PLC, Roanoke, Virginia, for Appellees. ON BRIEF: Frank
K. Friedman, J. Benjamin Rottenborn, WOODS ROGERS PLC, Roanoke,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Ralph Arthur (“Appellant”) sued his employer, Pet

Dairy (“Appellee”), alleging that he was terminated because of

his age in violation of the Age Discrimination in Employment Act

(“ADEA”). He appeals from the district court’s order of summary

judgment in his employer’s favor.

To lodge a claim of age discrimination, a plaintiff

may proceed through either of two avenues of proof: by raising a

presumption of discrimination, or by offering direct or

circumstantial evidence of the employer’s discriminatory animus.

Regardless of the method employed, the burden remains the same:

plaintiff must prove that age was the but-for cause of his

termination. In this case, Appellant’s evidence fails to raise

a genuine dispute as to whether he can satisfy this burden; he

offers nothing to cast doubt upon Appellee’s stated reasons for

terminating him, including numerous customer complaints and his

lengthy history of performance issues. Accordingly, we affirm.

I.

A.

Appellant was a milk delivery driver and salesman for

Appellee, a corporation serving Lynchburg, Virginia’s dairy

needs. Appellant initially worked for Pet Dairy in 1992 or 1993

for about six months, and was most recently rehired in January

2003 when he was 57 years old. Appellant was assigned Pet

2
Dairy’s largest and most profitable sales route, which supplied

Barnes & Noble and the Lynchburg City School Division (the

“School Division”), among others.

At the time of his termination, Appellant’s direct

supervisor was Appellee’s branch manager for the Lynchburg

office, Mike Reynolds (“Reynolds”). Appellant testified in

deposition that on Reynolds’s first day as Appellant’s

supervisor, Reynolds told Appellant, “[Y]ou are too old to be

here and I’m going to get rid of you.” J.A. 363. 1 Appellant

also offered the sworn affidavit of his coworker, Judith

Hickman, who generally confirmed that “Reynolds told Arthur that

he was too old to be working.” Id. at 537. Appellant further

testified that around Thanksgiving in November 2009, about three

weeks before Appellant’s termination, Reynolds told Appellant

that he “need[ed] to go ahead and hang it up because [he was]

just too old to do [his] job.” Id. at 983-84.

But the record also shows Appellant demonstrated

significant work performance issues, beginning almost

immediately after he was hired in 2003. For example, on May

16th, 2003, Appellant crashed his milk truck into an SUV,

striking it hard enough to send the SUV into a triple barrel

1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

3
roll. 2 For this, Appellant was given a written warning. He was

also issued two formal, written reprimands in September 2003 for

consistently failing to supply customers with adequate

quantities of milk.

Appellee hired Mike Reynolds in 2005. Reynolds often

communicated his dissatisfaction with Appellant’s performance,

threatening to fire him either verbally or in writing about once

every two weeks. Appellant claimed Reynolds left him at least

17 sticky-notes threatening termination, but Appellant admitted

that none of them concerned his age; all criticized his job

performance. In one sticky note, Reynolds threatened to fire

Appellant for damaging three truck bumpers by hitting objects

with his work truck. In another, Reynolds demanded for the

“last time” that Appellant take inventory of his delivery load.

J.A. 464-65. Reynolds also verbally reprimanded Appellant when

customers complained about his failure to deliver adequate

quantities of milk, and threatened to terminate Appellant when

he refused to deliver the goods as requested.

Reynolds said that he received more complaints about

Appellant than about any of the other drivers, and that

Appellant had problems with customers “from day one.” J.A. 738.

2
In his deposition, Appellant attempted to understate his
blameworthiness for this accident, insisting that he merely
“tapped” the other driver’s vehicle. J.A. 447.

4
Reynolds said that after he corrected Appellant, Appellant

“would get better for three or four months” before reverting to

his bad habits. Id. at 739. Reynolds was not alone in his

assessment of Appellant. Both he and his assistant manager,

Steven Good (“Good”), told Appellant on several occasions that

his performance was lacking and he “would end up getting fired

because of his problems” if he did not improve. Id. at 738.

Appellant also generated several complaints from

Appellee’s customers, and from the School Division especially.

Appellee disciplined Appellant in writing after a Barnes & Noble

store complained that Appellant failed to deliver enough milk.

Later, the Barnes & Noble store demanded Appellee assign its

account to another driver after Appellant spilled a gallon of

milk on the store’s carpet. Additionally, the School Division,

the largest customer on Appellant’s route, repeatedly complained

that Appellant left milk on outdoor loading docks, where it

would be exposed to weather; delivered to the schools cartons of

milk covered in rust; failed to provide the schools with enough

milk; argued with school cafeteria managers; sped through school

parking lots; maneuvered his hand truck “at breakneck speed”

through school kitchens, “to the point it created a safety

hazard”; failed to inventory his load of milk; and exhibited a

rude and hostile attitude. J.A. 604.

5
 The School Division annually hosted an in-service

meeting where school staff would express their opinions on

services provided by various contractors. By 2009, the School

Division had complained about Appellant for “several years,” and

it had “exhausted [its] patience.” J.A. 1021. Meryl Smith

(“Smith”), the director of school nutrition, invited Reynolds to

the School Division’s August 2009 in-service meeting because she

received such a high number of complaints from school cafeteria

managers that she “wanted [Reynolds] to hear [these complaints]

directly from [the managers].” Id. at 630. Reynolds attended

the meeting and heard these complaints in person. This was the

first time Smith had requested a representative of any of the

School Division’s “many” vendors to attend an in-service meeting

in order to hear complaints from school staff about an

employee’s job performance. Id. at 632. But even after this

unprecedented in-service meeting, Smith still heard complaints

from cafeteria managers and contacted Reynolds “on and

off . . . expressing [her] concern that things were not getting

better.” Id. at 602-03.

In her deposition, Smith said that Reynolds approached

her several months after the in-service meeting and asked her to

“put [her] concerns [about Appellant] in writing” because

Reynolds was considering whether to “get[] rid of [Appellant] as

an employee,” and needed a written complaint “in order to make

6
changes.” J.A. 600, 602, 625. In a memorandum dated December

4, 2009 (the “Smith Memorandum”), Smith documented the School

Division’s complaints about Appellant. Smith wrote that

although she was sure Appellant was “aware that [the School

Division was] not happy with his work performance . . . he [did]

not make an effort to change those things that he [was] capable

of changing,” that she had “exhausted [her] patience in working

with [Appellant], and [that she] no longer want[ed] to deal with

the problems he create[d]” for the School Division’s food

service program. Id. at 1021. “With this in mind,” Smith

“stat[ed] that [she] no longer want[ed] [Appellant] to service

any of the Lynchburg City School accounts,” and she asked

Appellee to “assign another route driver to cover the Lynchburg

School accounts as soon as possible.” Id. Smith penned that

she believed the School Division’s “long term bid contracts with

[Appellee] . . . [gave her] the leverage to make this request.”

Id. Good testified that when management for Appellee received

this memorandum, they believed the School Division “would pull

the accounts or the contract if [Appellant] continued to be

their service person representing [Appellee].” Id. at 560. The

School Division gave Appellee a choice of either removing

Appellant from the route or losing one of its most lucrative

contracts.

7
 On December 8, 2009, Reynolds forwarded the Smith

Memorandum to Anthony Heyward (“Heyward”) in Appellee’s human

resources department, stating, “Ralph Arthur needs to be

terminated” because he “is an ongoing problem.” J.A. 724, 727.

Based on Reynolds’s recommendation and the Smith Memorandum,

Heyward submitted to his superior, Marion Terrell (“Terrell”),

that Appellant should be terminated. Heyward did not

independently investigate any complaints about Appellant’s

performance before making this recommendation. Terrell

concurred with the recommendation. Appellant was terminated on

December 17, 2009.

Appellant testified that Appellee dissolved his route

the day after he was terminated. Appellee later divided this

route among seven other drivers who then supplied the customers

Appellant formerly serviced. Of these drivers, only one was

under 40 years old. Appellee did not hire any new employees to

replace Appellant.

B.

Appellant filed suit in the Western District of

Virginia alleging age discrimination in violation of the ADEA,

29 U.S.C. § 623(a)(1). In addition to offering direct evidence

of Reynolds’s derogatory statements, Appellant also offered

circumstantial evidence that Reynolds intended to discriminate

against Appellant because of his age: deposition testimony in

8
which Reynolds denied procuring the Smith Memorandum, disclaimed

any desire to fire Appellant before he received the memorandum,

and disavowed having a significant role in the termination.

This testimony was directly contradicted by Smith’s account of

events.

Appellant also claimed he performed his job duties

adequately, and he contested the truth of most of the complaints

about his work performance, insisting that both the School

Division and Reynolds exaggerated or fabricated the basis for

their grievances. 3 Appellant provided uncontested testimony that

3
Appellant argues we cannot consider many of the School
Division’s complaints about his performance because they are
inadmissible hearsay. See Appellant’s Br. 5-6, 29-36 (“‘[I]n
assessing a summary judgment motion, a court is entitled to
consider only the evidence that would be admissible at trial.’”
(quoting Kennedy v. Joy Technologies, Inc., 269 F. App’x 302,
308 (4th Cir. 2008))). This argument misses the point. The
issue in this case is whether Appellee fired Appellant because
complaints were made, not whether the School Division was
justified in complaining. See Holland v. Washington Homes,
Inc., 487 F.3d 208, 217 (4th Cir. 2007) (upholding order of
summary judgment because “uncontested evidence” showed that
employer “honestly believed” that employee should be discharged
for threatening coworker, because “it is the perception of the
decisionmaker which is relevant,” not whether employee actually
made threats (internal quotation marks omitted)). Therefore,
this evidence is admissible, not for the truth of the statement,
but to show Appellee’s state of mind. See Fed. R. Evid.
801(c)(2); see also Arrington v. E.R. Williams, Inc., 490 F.
App’x 540, 543 (4th Cir. 2012) (“[T]hird party statements
concerning the plaintiff’s performance are offered not for the
truth of the matters asserted therein, but as an explanation of
why [the employer] believed that terminating the plaintiff’s
employment . . . was necessary and appropriate . . . .”
(internal quotation marks omitted)).

9
despite the complaints, Appellee did not remove him from the

top-selling sales route, and did not formally discipline him in

writing in the past six years. Reynolds said in his deposition

that despite numerous complaints about Appellant’s performance,

he did not want to fire Appellant until he received the Smith

Memorandum.

Appellant also opined that before he was terminated,

Reynolds received an email from upper management requiring the

Lynchburg branch to increase the sales of three delivery routes,

and that “[t]here was no other way [Reynolds] could do that” but

to shut down Appellant’s route and divide it among the other

drivers. J.A. 417. Reynolds testified that a “number of

individuals” employed by Appellee or by its parent corporation

in Chicago periodically evaluated truck route patterns to

determine whether routes could be consolidated or eliminated, in

order to save costs. Id. at 681. According to Reynolds, these

route “territory planner[s]” decided to eliminated Appellant’s

route. Id. at 696. Indeed, according to Appellant’s testimony,

his route was fragmented the day following his termination. But

in his deposition, Appellant maintained he did not think

business necessity was “the primary reason” Appellee fired him.

Id. at 981.

After discovery, Appellee moved the district court for

summary judgment. The district court granted the motion. See

10
Arthur v. Pet Dairy, No. 6:11-cv-00042, 2013 WL 6073465 (W.D.

Va. Nov. 19, 2013).

II.

A.

We review orders granting summary judgment de novo,

viewing the evidence in a light most favorable to the nonmoving

party. See Educational Media Co. at Va. Tech, Inc. v. Insley,

731 F.3d 291, 297 (4th Cir. 2013). A party moving for summary

judgment must prove that no genuine dispute of material fact

exists, and that the moving party must prevail as a matter of

law. See Fed. R. Civ. P. 56(a). The nonmoving party may avoid

summary judgment by offering sufficient evidence to show the

existence of a genuine dispute. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). Evidence raises a genuine

dispute if it “is such that a reasonable jury could return a

verdict for the nonmoving party,” and not “so one-sided that one

party must prevail as a matter of law.” Id. at 248, 252.

Therefore, when judging whether a “genuine” dispute exists, the

court must, to some extent, evaluate the evidence as a

reasonable juror would. See id. at 248. But we may not “weigh

the evidence and determine the truth of the matter,” because

genuine disputes as to the truth of material facts should be

submitted to the jury. Tolan v. Cotton, 134 S. Ct. 1861, 1866

(2014) (internal quotation marks omitted) (reversing order of

11
summary judgment because “the court improperly weighed the

evidence and resolved disputed issues in favor of the moving

party” (internal quotation marks omitted)). However, “[t]he

mere existence of a scintilla of evidence in support of the

plaintiff’s position will be insufficient [to create a genuine

dispute]; there must be evidence on which the jury could

reasonably find for the plaintiff.” Liberty Lobby, 477 U.S. at

252.

B.

The ADEA makes it “unlawful for an employer . . . to

fail or refuse to hire or 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 ADEA plaintiff may prove age discrimination in

one of two ways: by proving a “prima facie case” of age

discrimination, which establishes a rebuttable presumption that

the employer violated the ADEA; or by offering direct or

circumstantial evidence of an employer’s discriminatory animus.

See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277,

284 (4th Cir. 2004) (en banc), abrogated in part by Gross v. FBL

Fin. Servs., Inc., 129 S. Ct. 2343 (2009). Regardless of the

method chosen, it remains the plaintiff’s ultimate burden to

prove that his age was the but-for cause of the adverse

12
employment action. See Gross, 129 S. Ct. at 2351. The district

court held Appellant’s evidence does not raise a genuine dispute

sufficient to meet his burden on either ground. Appellant

claims the district court erred; he contends he provided

evidence establishing a genuine dispute as to whether he can

make out a prima facie case of discrimination, and that he also

offered sufficient direct or circumstantial evidence to prove

his age was the but-for cause of his termination. Therefore, we

must evaluate the evidence on both grounds.

1.

Prima Facie Case

a.

An ADEA plaintiff may establish a presumption of

discrimination by making out a prima facie case of age

discrimination according to McDonnell Douglas Corp. v. Green and

its descendants. See 411 U.S. 792, 802 (1973); see also Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 142-43 (2000);

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993).

Though “the plaintiff’s burden is not onerous,” he must

nevertheless prove his prima facie case by a preponderance of

the evidence. Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 515

(4th Cir. 2006) (internal quotation marks omitted). To

establish a prima facie case, the plaintiff must show (1) he was

a member of the protected class, namely, “individuals who are at

13
least 40 years of age,” 29 U.S.C. § 631(a); (2) he was

performing his job duties to his employer’s legitimate

expectations at the time of termination; (3) he was terminated;

and (4) he was replaced by a substantially younger individual.

Hill, 354 F.3d at 285. Appellant cannot get beyond step two. 4

Whether an employee met his employer’s legitimate

expectations at the time of termination depends on the

“perception of the decision maker . . . , not the self-

assessment of the plaintiff,” and not the opinions of the

plaintiff’s coworkers. Hawkins v. PepsiCo, Inc., 203 F.3d 274,

280 (4th Cir. 2000). And because it is the plaintiff’s burden

to persuade the trier of fact that he met his employer’s

legitimate subjective employment expectations, at the prima

facie stage we must consider the employer’s “evidence that the

employee was not meeting those expectations.” Warch, 435 F.3d

at 515-16. Otherwise, it would be “difficult to imagine a case

where an employee could not satisfy the . . . legitimate

4
Because Appellant has failed to make out a McDonnell
Douglas prima facie case, we do not opine on whether Appellant
could have satisfied the ultimate burden of proof applicable to
his pretext case: that his age was the but-for cause of his
termination. See Reeves, 530 U.S. at 142-43 (explaining that
the core issue of “discrimination vel non” in an ADEA pretext
case is not reached unless the employee proves a prima facie
case and the employer meets its burden to produce “legitimate,
nondiscriminatory reason[s]” for the adverse employment action
(internal quotation marks omitted)).

14
expectation element.” Id. at 516 (internal quotation marks

omitted).

b.

The district court found Appellant failed to create a

genuine dispute about whether he satisfied the legitimate

expectations of his employer at the time of termination for two

reasons. First, Appellant’s work performance generated numerous

customer complaints long before he was terminated. Second,

nearer to his termination, Appellee’s largest customer refused

Appellant’s services. Both of these reasons support the

district court’s decision to grant summary judgment to Appellee.

To attempt to show he fulfilled his employer’s

legitimate expectations, Appellant highlights the fact that

Appellee, despite its claims regarding Appellant’s performance

record, did not formally discipline him during the six years

prior to his termination and did not reassign him to a less

economically important route. In fact, Appellee took no formal

action against Appellant until approximately four months after

it received the Smith Memorandum. However, Appellant’s evidence

as to his work performance is “simply not enough to genuinely

dispute the considerable evidence of [Appellant’s] repeated

failures and negative performance.” Warch, 435 F.3d at 518.

Compared to the mountain of evidence demonstrating Appellant

consistently failed to meet Appellee’s expectations, Appellant’s

15
evidence is a mere a molehill; it is either very weakly

probative, or not probative at all, of the material issue. 5

Indeed, the evidence of Appellant’s lacking job performance “is

so one-sided” that as a matter of law he cannot establish a

prima facie case. Garofolo v. Donald Heslep Assocs., Inc., 405

F.3d 194, 199 (4th Cir. 2005) (internal quotation marks

omitted). Although Appellee did not formally discipline

Appellant in writing, this carries little weight because

Appellant admitted he was informally counselled about his

performance on several occasions over several years.

Furthermore, one of Appellee’s largest customers, the School

Division, devoted an in-service meeting to airing its complaints

about Appellant’s performance. The School Division also

threatened to terminate its contract with Appellee because of

these complaints. Of note, Appellant does not dispute that this

meeting occurred, or that the School Division threatened to

terminate its contract because of him.

Taking Appellant’s allegations as true, the fact that

Reynolds stated he did not want to fire Appellant before he

received the Smith Memorandum, and that Appellant was permitted

to keep his route as long as he did despite numerous complaints

5
Appellant has never claimed that his employer’s
expectations were illegitimate, and we therefore deem this point
conceded.

16
about his performance, does not help Appellant’s case. Nor does

the bare fact that Appellant was not formally disciplined for

generating these complaints. Where there is evidence an

employee has repeatedly failed to meet his employer’s

expectations, and yet the employer has refrained from taking

certain disciplinary actions, the absence of discipline is

weakly probative of adequate performance. See Smith v. Flax,

618 F.2d 1062, 1067 (4th Cir. 1980) (concluding “the fact

[employee] was kept on for many months after it was determined

that he could not perform at an acceptable level of

competence . . . shows a high degree of patience and

consideration” on the employer’s part, not that the employee was

performing adequately). Furthermore, Appellant’s interpretation

of the law is actually against his own interest and the

interests of others similarly situated; he is suggesting that in

order for an employer to be free of potential ADEA claims, it

should terminate an employee at the first sign of poor

performance, else a court will find the employee met his

employer’s legitimate expectations. This view is not only

unsupportable as a matter of law, it is also bad policy.

Appellant’s evidence is simply insufficient for a

reasonable jury to find that Appellant met his employer’s

legitimate employment expectations. Therefore, we affirm the

district court’s order of summary judgment as to Appellant’s

17
inability to prevail on his ADEA claim by proving a prima facie

case of age discrimination.

2.

Direct or Circumstantial Evidence

a.

i.

We now turn to the question of whether Appellant has

established a genuine dispute of material fact as to his ability

to prove with direct or circumstantial evidence that Appellee

terminated him because of his age. We conclude that Appellant

cannot meet this burden, and therefore affirm the district

court’s order of summary judgment, because Appellant has not

proffered evidence tending to show that there was no other

explainable basis for Appellee’s decision to fire him.

Derogatory comments about an employee’s age may be

direct evidence of age discrimination, provided they concern the

employee’s age and sufficiently demonstrate that the employer’s

age-related animus affected the employment decision at issue.

See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,

300 (4th Cir. 2010) (noting that “in the absence of a clear

nexus [between an employer’s derogatory comments and] the

employment decision in question, the materiality of stray or

isolated remarks is substantially reduced”); Hill, 354 F.3d at

288-89 (requiring that ADEA plaintiffs prove the person acting

18
pursuant to discriminatory animus was “the one principally

responsible for, or the actual decisionmaker behind, the action”

(internal quotation marks omitted)); Dockins v. Benchmark

Commc’ns, 176 F.3d 745, 751 (4th Cir. 1999) (finding ADEA

plaintiff met burden to “present affirmative evidence of age-

based animus” by offering “his testimony regarding the comments

relating to his age” made by decisionmaker for employer

(internal quotation marks omitted)). 6

We have not expressly adopted an analytical framework

for determining if derogatory comments are direct evidence of

actionable age discrimination, but the Fifth Circuit has created

a four-part test for this purpose. See Jackson v. Cal-W.

Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010). Comments

must be “1) related to the protected class of persons of which

the plaintiff is a member; 2) proximate in time to the

complained-of adverse employment decision; 3) made by an

individual with authority over the employment decision at issue;

and 4) related to the employment decision at issue.” Id. This

test is consistent with our precedent, and we are content to

adopt it here.

6
See also McCray v. Pee Dee Reg’l Transp. Auth., 263 F.
App’x 301, 306 (4th Cir. 2008) (“While isolated statements can
constitute direct evidence of discrimination, the statements
must be contemporaneous to the adverse employment action.”).

19
 As for circumstantial evidence of intentional

discrimination, the Supreme Court has concluded that an

employer’s false explanation about the circumstances of the

plaintiff’s termination, accompanied by evidence that the

employer acted with an illicit motive, may circumstantially

prove discriminatory intent. See Reeves, 530 U.S. at 147

(discussing the probative value of evidence that an employer’s

stated reason is pretext).

ii.

ADEA plaintiffs face a high causation burden: in order

to prevail, an ADEA plaintiff must prove that discrimination was

“the but-for cause” of the adverse employment action. 7 Gross,

129 S. Ct. at 2351 (emphasis supplied) (internal quotation marks

omitted). “[T]he ordinary meaning of the ADEA’s requirement

that an employer took adverse action because of age is that age

was the reason that the employer decided to act.” Id. at 2350

7
This burden differs greatly from that applied to so-called
mixed-motive claims pursuant to Title VII, which allow a
plaintiff to avoid summary judgment “when [the] employee alleges
that he suffered an adverse employment action because of both
permissible and impermissible considerations.” Gross, 557 U.S.
at 171; see 42 U.S.C. § 2000e-2(m); see, e.g., Pitrolo v. Cnty.
of Buncombe, N.C., No. 12-2375, 2014 WL 5315362, at *6 (4th Cir.
Oct. 20, 2014) (holding that plaintiffs who prevail on mixed-
motive Title VII claims are entitled to seek declaratory
relief).

20
(emphasis supplied) (internal quotation marks omitted).

According to Gross v. FBL Financial Services, to show “a but-for

causal relationship” for ADEA purposes the plaintiff must

present evidence that discriminatory animus was a “necessary

logical condition” for the adverse employment action and that

the employer did not act “because” of other legitimate

motivations for the action. Id. (internal quotation marks

omitted).

We agree with the majority of circuits that have

considered the issue and concluded that Gross elevated the

burden of proof many courts applied to ADEA claims. See, e.g.,

Leal v. McHugh, 731 F.3d 405, 411 (5th Cir. 2013) (noting “the

‘but-for’ standard of proof [developed in Gross] is more

demanding than the ‘motivating factor’ standard of proof”

applied to Title VII cases); Sims v. MVM, Inc., 704 F.3d 1327,

1336 (11th Cir. 2013) (“[T]he ADEA requires more than what must

ordinarily be proven under an analogous Title

VII . . . action.”). But cf. Jones v. Okla. City Pub. Schs.,

617 F.3d 1273, 1277-78 (10th Cir. 2010) (recalling that the

“Tenth Circuit has long held that a plaintiff must prove but-for

causation” to prevail on an ADEA claim, and concluding that

“Gross does not disturb [this] precedent by placing a heightened

evidentiary requirement on ADEA plaintiffs to prove that age was

the sole cause of the adverse employment action”).

21
 But, pursuant to Gross, for an event to be the “but-

for cause,” it need not be the sole cause of the adverse

employment action. See Leal, 731 F.3d at 415 (concluding “the

district court misread Gross, since but-for cause does not mean

sole cause” (internal quotation marks omitted)). Age

discrimination cases often present more than one reason for an

employer to take adverse action against an employee, but an

employee need not refute each negative mark on his record or

every possible legitimate ground for the employment decision to

avoid summary judgment. Rather, according to Gross, to prevail

on summary judgment the employee must only demonstrate, age-

related considerations aside, that under the circumstances these

other nondisciminatory grounds did not animate the employer to

take the adverse employment action. See Gross, 129 S. Ct. at

2350 (indicating that an employer acts “because of” age when

“the employee’s protected trait actually played a role in the

employer’s decisionmaking process and had a determinative

influence on the outcome” (emphasis omitted) (quoting Hazen

Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). 8 In other

8
We join at least five circuits that have adopted this view
of Gross. See Scheick v. Tecumseh, 766 F.3d 523, 532 (6th Cir.
2014) (holding that “notwithstanding the evidence of
dissatisfaction with [Appellant’s job] performance and the
concurrent need to respond to the budget crisis” a reasonable
juror could find that Appellant’s “age was the but-for cause of
[his employer’s] decision not to renew the contract for his
(Continued)
22
words, if there existed other legitimate motivations for the

decision, the employee must offer sufficient evidence to show

these factors were not “the reason” for the employer’s decision. 9

Id. at 176 (internal quotation marks omitted). So “direct

evidence of age discrimination[, such as derogatory comments

alone,] may not always be sufficient to create a question of

fact for trial in the ADEA context.” Scheick, 766 F.3d at 532.

When evaluating cases like this on summary judgment, our focus

services”); Leal, 731 F.3d at 414 (concluding that a “but-for
cause” for ADEA purposes is one “without which the event could
not have occurred,” and that even despite employer’s proffer of
multiple alleged bases for the adverse employment action,
Appellant adequately pleaded but-for causation (internal
quotations marks omitted)); Sims, 704 F.3d at 1332; Shelly v.
Green, 666 F.3d 599, 622 (9th Cir. 2012) (affirming order of
summary judgment on ADEA claim because, in light of Gross,
Appellant’s evidence could not “show that the [employer’s]
decision is unexplainable on any basis other than age
discrimination”); Jones, 617 F.3d at 1277-78 (“[A]n employer may
be held liable under the ADEA if other factors contributed to
its taking an adverse action, as long as age was the factor that
made a difference.” (internal quotation marks omitted)).

9
Appellant argues he only need prove “‘ that age was
[a] “but for” cause of the employer’s adverse decision,’” because
in its recent discussion of Gross, the Supreme Court “submitted a
bracketed ‘[a]’ for the word ‘the’ preceding the expression ‘but
for cause.’” Appellant’s Br. 48 (alteration in original)
(quoting Burrage v. United States, 134 S. Ct. 881, 889 (2014)).
Burrage v. United States had nothing to do with the ADEA. That
case interpreted the term “results from” as it appears in the
Controlled Substances Act. See Burrage, 134 S. Ct. at 885.
Although we are unsure how to regard the Supreme Court’s
alteration of this excerpt from Gross, we suspect that if the
Court desired to make a radical change to recent precedent, it
would not do so quietly in a case having nothing to do with
employment discrimination.

23
is on whether the plaintiff has provided sufficient evidence to

cast doubt upon the employer’s stated reasons for the employment

action, such that a reasonable juror may find age was the

determinative factor in that decision.

b.

Here, the district court concluded that Reynolds’s

comments, as alleged by Appellant, “do appear to be reflecting a

discriminatory attitude, and . . . appear to bear on the

decision to terminate [Appellant].” Arthur v. Pet Dairy, No.

6:11-cv-00042, 2013 WL 6073465, at *3 (W.D. Va. Nov. 19, 2013).

The district court nonetheless held that Appellant’s direct and

circumstantial evidence could not save his claim from summary

judgment because Reynolds’s disparaging comments “were not made

contemporaneous to the adverse employment action.” Id. This is

incorrect. In his deposition, Appellant stated that around

Thanksgiving in November 2009, Reynolds repeated his view that

Appellant was “too old to do [his] job” and “need[ed] to go

ahead and hang it up . . . .” J.A. at 983-84. Appellant’s

coworker, Judith Hickman also corroborated his claim that

Reynolds had made ageist comments of this sort in the past. 10

10
The district court dismissed Hickman’s testimony as a
coworker’s opinion “‘as to the quality of plaintiff’s work [that
is] . . . close to irrelevant.’” J.A. 1098 (quoting DeJarnette
v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)). The
district court misapplied this case. In DeJarnette v. Corning,
(Continued)
24
Appellant offers garden variety direct evidence of age

discrimination that sufficiently ties Reynolds’s alleged

discriminatory intent to the relevant time period.

Although we depart from the district court on this

point, we nonetheless affirm its conclusion because Appellant

does not contest record evidence demonstrating that his employer

terminated him for other lawful reasons. Appellee argues it

terminated Appellant because he had a long history of

performance issues and because its largest customer threatened

to leave unless Appellant was removed from the route. Indeed,

the record demonstrates Appellee believed the School Division

would “pull . . . the contract if [Appellant] continued to be

their service person representing [Appellee].” J.A. 560. While

“the perception of the decisionmaker” is the relevant issue in

determining whether an employee was terminated for lawful

reasons other than age, the Smith Memorandum and Appellee’s

reaction to it are powerful evidence that Appellee had a

Inc., the appellant attempted to show her employer’s reasons for
terminating her were pretext by offering her coworkers’
testimony that she “was an average or good employee.”
DeJarnette, 133 F.3d at 299. We rejected the coworkers’
opinions about DeJarnette’s performance, because “it is the
perception of the decision maker which is relevant.” Id.
(internal quotation marks omitted). But Hickman’s testimony is
indeed relevant because it corroborates Appellant’s claim that
Reynolds made derogatory statements about his age.

25
legitimate motive in terminating Appellant. Holland v.

Washington Homes, Inc., 487 F.3d 208, 217 (4th Cir. 2007).

Further, even assuming that Reynolds’s alleged attempt

to cover his role in Appellant’s termination by denying he

procured the Smith Memorandum is circumstantial evidence of

discriminatory intent, see Reeves, 530 U.S. at 147, Appellee

still must prevail as a matter of law. Faced with Appellee’s

evidence, Appellant offered nothing to show that the Smith

Memorandum, and his past work performance issues, did not

independently form an animating reason for Appellee’s decision

to terminate him. Indeed, Appellant admitted that he was

criticized both verbally and in writing on numerous occasions

over his seven-year tenure at Pet Dairy because of his

substandard performance. Consequently, viewing the evidence in

a light most favorable to Appellant, the evidence at best

demonstrates that his “age was simply a motivating factor” in

Appellee’s decision, not “the but-for cause” of Appellant’s

termination. Gross, 129 S. Ct. at 2349, 2351.

Appellant also provides us with another reason to

affirm summary judgment in this case: he testified that Appellee

had another legitimate business reason to terminate him.

According to Appellant, upper management instructed Reynolds to

increase the sales of three other sales routes, and “[t]here was

no other way he could do that” but to eliminate his position and

26
distribute his route among others. J.A. 417. He also admitted

that this business decision was “one of the reasons why”

Appellee terminated him, although he insists it was not the

“primary reason.” Id. at 981, 982. But whether a legitimate

business decision was the “primary” reason for his termination

is not material; Appellant’s burden is to show his age was the

but-for cause of the adverse employment action -- a necessary

logical condition for his termination. See Gross, 192 S. Ct. at

2351. And here, Appellant’s own testimony demonstrates his

employer had other legitimate business motives to terminate him.

Therefore, viewing the evidence in a light most

favorable to Appellant, we hold that no reasonable jury could

find that Appellant has offered sufficient direct or

circumstantial evidence that his age was the but-for cause of

this adverse employment action.

III.

For the foregoing reasons, the district court’s order

of summary judgment is

AFFIRMED.

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