PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCES D. BURNS,
Plaintiff-Appellant,
v.
No. 98-1073
AAF-MCQUAY, INCORPORATED, a
Minnesota Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael Jr., Senior District Judge.
(CA-94-49-H)
Argued: December 1, 1998
Decided: January 27, 1999
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Ervin and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Stephanie Rader Sipe, LITTEN & SIPE, L.L.P., Harri-
sonburg, Virginia, for Appellant. Bruce McCoy Steen, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,
for Appellee. ON BRIEF: Donald D. Litten, Sr., LITTEN & SIPE,
L.L.P., Harrisonburg, Virginia, for Appellant. R. Craig Wood,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville,
Virginia, for Appellee.
_________________________________________________________________
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Frances D. Burns brought this action against her former employer
AAF-McQuay, Inc. for discrimination based on age in violation of the
Age Discrimination in Employment Act (ADEA). 29 U.S.C.A.
§§ 621-634 (1999). Initially Burns asserted traditional ADEA claims
of discriminatory demotion and constructive discharge. Later she
sought to amend her complaint to add a claim for hostile work envi-
ronment; the district court refused to permit the amendment.
AAF-McQuay then moved for summary judgment, which the district
court granted. We affirm.
I.
Frances Burns worked for AAF-McQuay or its predecessor com-
pany from 1964 until March of 1994, when she resigned. Burns was
65 years old when she left AAF-McQuay. Shortly thereafter, Burns
brought this action against her former employer alleging that her
demotion from the position of secretary to that of switchboard opera-
tor constituted a discriminatory employment action and that her resig-
nation from the company was in fact a constructive discharge, in
violation of the ADEA. See 29 U.S.C.A. § 623(a). The district court
granted summary judgment to the employer on both counts. On
appeal, we affirmed with respect to constructive discharge and
remanded for further proceedings on Burns's demotion claim. See
Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir. 1996).
While the case was on remand, Burns moved to amend her com-
plaint to include a hostile environment claim and several state law
claims. The district court denied Burns's motion to amend. With
respect to the hostile environment claim, the court based its denial on
futility because it determined that this court had not yet recognized
such a cause of action under the ADEA. See Burns v. AAF-McQuay,
2
980 F. Supp. 175 (W.D.Va. 1997). AAF-McQuay then moved again
for summary judgment, arguing that Burns's only surviving claim --
discriminatory demotion -- did not give rise to any relief. The district
court granted the motion.
Burns appealed both orders, but she has declined to pursue the state
law claims and has conceded in her brief and at oral argument that,
under circuit precedent, she is entitled to no relief based on her dis-
criminatory demotion claim. See Fariss v. Lynchburg Foundry, 769
F.2d 958 (4th Cir. 1985); Slatin v. Stanford Research Inst., 590 F.2d
1292 (4th Cir. 1979). Accordingly, the sole issue before us is whether
the district court abused its discretion in denying Burns's motion to
amend her complaint with respect to the hostile environment claim.
II.
Over two years after filing her original complaint, Burns moved to
amend the complaint to add a hostile environment claim under the
ADEA. AAF-McQuay argued that the motion should be denied
because Burns's delay in filing the claim would prejudice it and
because the amendment would be futile. See Johnson v. Oroweat
Foods Co., 785 F.2d 503, 509-10 (4th Cir. 1986) (although delay
alone is not a sufficient basis upon which to deny a motion to amend,
the district court can deny such a motion if the wait is coupled with
bad faith, prejudice, or futility).
The district court found that Burns's delay would not prejudice the
employer but refused to permit the amendment, believing it would be
futile because this court has not yet recognized a hostile environment
age discrimination claim. See Burns, 980 F. Supp. at 180. We affirm,
albeit for reasons somewhat different than those of the district court.
In refuting the contention that permitting amendment would preju-
dice her former employer, Burns maintained that her proposed
amendment would result in no prejudice because the facts giving rise
to the hostile environment claim were exactly the same as those sup-
porting the age discrimination claim alleged in her original complaint.
Burns asserted that no new depositions would be required and that the
discovery already taken in the case so related to the proposed claim
that any new discovery, if necessary at all, would be very limited.
3
We agree that, due to this overlap in the evidence, any prejudicial
impact on the employer stemming from the amended complaint
would be minimal, but these same assertions lead us to conclude that
the proposed amendment would indeed have been futile. Given these
facts, even assuming that a plaintiff can sue for hostile environment
under the ADEA, Burns cannot state a viable hostile environment
claim.
In order to make out a claim for hostile environment under the
ADEA, Burns would be required to show (1) that she is at least 40
years old; (2) that she was harassed based on her age; (3) that the
harassment had the effect of unreasonably interfering with her work,
creating an environment that was both objectively and subjectively
hostile or offensive; and (4) that she has some basis for imputing lia-
bility to her employer. See Crawford v. Medina Gen. Hosp., 96 F.3d
830, 834-35 (6th Cir. 1996) (recognizing hostile environment claim
under ADEA); see also Faragher v. City of Boca Raton, 118 S. Ct.
2275, 2283 (1998) (citing Harris v. Forklift Systems, Inc., 510 U.S.
17 (1993), and noting that environment must be both objectively and
subjectively hostile in order to make out hostile environment claim
under Title VII); Hartsell v. Duplex Products, Inc., 123 F.3d 766, 772
(4th Cir. 1997) (outlining elements of hostile environment claim
under Title VII).
The amendment proposed here would have been futile because
Burns cannot meet the third requirement. She has forecast no evi-
dence tending to show that the asserted offensiveness of the working
environment at AAF-McQuay was sufficiently severe or pervasive to
create an environment that was objectively hostile to her because of
her age.
Burns testified that her supervisor, Stephen Horney, was the only
person at the company who participated in discrimination against her.
As evidence of the harassment she suffered at the hands of Horney,
Burns pointed to an instance, in January 1994, when Horney asked
her what her intentions were with respect to retirement. Burns
responded that she intended to continue working until her husband
retired in 1997. Horney then replied that some changes were going to
be made in the department and that he was transferring Burns from
her position as secretary to that of switchboard operator. Burns noted
4
that this conversation was the first time that Horney raised the subject
of retirement after over a year as her supervisor. Burns also recounted
that Horney told her that she did not "fit in" with his group and "that
I was 65 years old and I was walking around like a child ten years
old; that I should have been telling other girls in the office what to
do."
In addition, Burns testified to other occasions during which Horney
acted in a manner that she perceived as hostile or unfair, including the
following: an incident in which Horney became angry at her for typo-
graphical errors and for failing to set up a meeting; an occasion when
Horney accused her of not opening the switchboard on time when she
alleges it was actually opened early; Horney's unprovoked threat to
fire her from her position at the switchboard; and Horney's comments
that he was allergic to her cologne and that she wore expensive
clothes. Burns has put forth no evidence that any of these additional
hostile words or acts, however disagreeable, were based on her age.
In fact, Burns repeatedly admitted that her belief that Horney mis-
treated her due to her age was based on speculation and her own
assumptions rather than on anything that anyone at the company actu-
ally said or did.
Thus the only comments properly attributed to Burns's age are
Horney's inquiry concerning her plans for retirement, his reference to
her acting like a child, and perhaps his comment that Burns did not
fit in with his group. Given this evidence and our careful review of
the record, we conclude that Burns has forecast insufficient evidence
of an objectively hostile environment. Although the number of inci-
dents alone can not serve as the basis for evaluating hostility, the
scant number and generally mild nature of the incidents in this case
combine to make the evidence insufficient. Cf. Harris, 510 U.S. at 23
(in context of Title VII hostile environment claim, court must review
entire circumstance, including frequency, severity, threatening or
humiliating nature of conduct, and "whether it unreasonably interferes
with an employee's work performance"); Hartsell, 123 F.3d at 773
(when alleged conduct falls below the threshold of severe or perva-
sive harassment, allowing "claim to go to trial would countenance a
federal cause of action for mere unpleasantness").
For these reasons, permitting Burns to amend her complaint would
have been futile. See Shafer v. Preston Mem'l Hosp. Corp., 107 F.3d
5
274, 276, 282 (4th Cir. 1997); Bauchman v. West High Sch., 132 F.3d
542, 562 (10th Cir. 1997); Estate of Porter v. Illinois, 36 F.3d 684,
690 (7th Cir. 1994); Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th
Cir. 1991). Because we conclude that Burns has failed to forecast evi-
dence tending to show a hostile environment at AAF-McQuay, we
need not reach the question of whether this court would recognize a
hostile environment claim under the ADEA given an adequate allega-
tion of facts.
AFFIRMED
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