United States Court of Appeals,
Fifth Circuit.
No. 94-11124.
Donald R. BROWN and Robert T. Davis, Plaintiffs-Appellants,
v.
CSC LOGIC, INC., Defendant-Appellee.
May 13, 1996.
Appeal from the United States District Court for the Northern
District of Texas.
Before WISDOM, GARWOOD and JONES, Circuit Judges.
WISDOM, Circuit Judge:
Plaintiffs-appellants, Donald Brown and Robert Davis, filed
suit against their former employer, the defendant-appellant, CSC
Logic, Inc. ("CSC Logic"), alleging that the company terminated
their employment in violation of the Age Discrimination in
Employment Act ("ADEA").1 The district court granted a motion for
summary judgment in favor of CSC Logic, and dismissed the case.
For the reasons that follow, we AFFIRM.
I. BACKGROUND
CSC Logic is a Texas corporation which provides data
processing and administrative services to financial institutions.
It is a wholly-owned subsidiary of its parent company, CSC. At all
times relevant to this suit, Winston Kimzey was the Chief Executive
Officer, and responsible for employment decisions regarding the
appellants.
1
29 U.S.C. § 621 et seq.
1
CSC Logic hired appellant Brown as the Director of Marketing
in January 1984. Shortly thereafter, the company obtained the Ford
Motor Company as a client. In order to provide better services to
Ford, CSC Logic created the Insurance Service Center ("ISC") to
handle Ford-related needs. At around the same time, the company
also created the Vehicular Single Interest Client Support
Department ("VSI") to assist clients with monitoring insurance
loans. Brown assumed responsibility for both new departments,
while still maintaining his existing marketing duties. He
continued in this capacity for the next several years.
In January 1991, Kimzey consolidated the VSI with the main
Client Support Department and assigned operation of the combined
operation to Greg Shimkus, the employee who was already managing
the main Client Support Department. About a year later, Kimzey
also reassigned responsibility of the ISC to Shimkus. Brown
retained responsibility for marketing, and his salary and benefits
remained the same until his termination sixteen months later.
CSC Logic hired appellant Davis as Director of Logic
Management Services, Inc., in January 1989. In June of that year,
the company reorganized its financial department. It hired Linda
Long as Manager of Financial Accounting, and promoted Davis to
Chief Financial Officer of CSC Logic. Davis continued in this
capacity until his termination.
From 1985 until 1992, one of CSC Logic's largest clients was
the Ford Motor Company. This account generated 40-45% of the
company's revenues. In February 1992, Ford canceled its contract
2
with the company. As a result, CSC Logic altered its 1993 fiscal
year budget (which took effect in April 1992) to reflect plans for
a massive employee layoff. In mid-1992, Ford unexpectedly agreed
to continue with the company until the end of the year. This event
caused a windfall for fiscal year 1993. CSC Logic therefore did
not lay off employees as planned, and actually gave an
across-the-board raise to all employees, excluding officers.
In November 1992, CSC Logic began budgeting for fiscal year
1994. Aware of the impending loss of the Ford contract, the
company again had to reduce costs. CSC Logic renegotiated its
office lease, and released excess office space. It eliminated
contributions to the employee benefits insurance reserve, and to
the company's bad debt reserve. It reduced anticipated bonus
payments, eliminated expected salary increases, and reduced capital
expenditures. Finally, the company laid off seventy-four
employees.
In spite of these efforts, expenses remained high. Near the
end of March, 1993, Kimzey and appellant Davis traveled to CSC's
corporate headquarters in California to present the proposed budget
for 1994. CSC was not satisfied with the 7.4 percent operating
margin in the budget and directed CSC Logic to rebudget to allow
for a ten percent margin. In response, Davis prepared a report
concerning over-staffing in various departments (not including his
own), and proposed a revised budget that reflected an operating
margin of thirteen percent.
Shortly before the appellants' terminations, CSC Logic held a
3
management meeting, attended by both appellants, the other vice
presidents, and Kimzey. At the meeting, Davis again stressed that
the company was over-staffed, and that expenses, including
salaries, needed to be reduced.
Four days later, on April 16, 1993, Kimzey terminated both
appellants' employment at CSC Logic, allegedly for economic
reasons. Davis, age 58, and Brown, age 44, served as two of the
four vice presidents of the company, and were two of the five
highest paid employees. Their combined salaries totaled $319,000.
The two remaining vice presidents were ages 41 and 51. Kimzey was
age 60. CSC Logic did not hire replacements or specifically
promote other employees to take the appellants' positions.
II. DISCUSSION
A. Standard of Review.
This court reviews the grant of summary judgment de novo.2
It may affirm the district court's grant of summary judgment on any
ground raised to the district court and upon which both parties had
the opportunity to present evidence.3 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.4
B. The parties' evidentiary burdens:
2
Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir.1994).
3
Id. at 1296.
4
Fed.R.Civ.P. 56(c).
4
The ADEA makes it unlawful 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."5 The evidentiary
burdens of each party in an ADEA case are well-established. A
plaintiff must first present a prima facie case of employment
discrimination.6 If the plaintiff meets this burden, the employer
must rebut the presumption of age discrimination by articulating a
legitimate non-discriminatory reason for the adverse employment
action.7 If the employer presents such evidence, then the burden
of production shifts back to the plaintiff to present probative
evidence that the employer's stated reason was pretext.8
In the present case, the district court assumed for summary
judgment purposes, that the appellants had established a prima
facie case, and therefore analyzed evidence only on the issue of
pretext. It found that Davis and Brown had not met their burden of
production on this issue, and granted summary judgment. Davis and
Brown argue that this ruling was in error, and that they each
5
29 U.S.C. § 623(a)(1).
6
Bodenheimer v. PPG Industries, Inc. 5 F.3d 955, 957 (5th
Cir.1993); Elliot v. Group Medical & Surgical Serv., 714 F.2d
556, 563 (5th Cir.1983), cert. denied, 467 U.S. 1215, 104 S.Ct.
2658, 81 L.Ed.2d 364 (1984).
7
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253-54, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981);
Thornbrough v. Columbus & Greenville R.R. Co., 760 F.2d 633, 639
(5th Cir.1985).
8
Bodenheimer, 5 F.3d at 957-58; Thornbrough, 760 F.2d at
639.
5
presented sufficient evidence of pretext to survive summary
judgment. CSC Logic maintains that Davis and Brown did not present
sufficient evidence of pretext, and that they also did not even
successfully present a prima facie case of age discrimination. We
will address each stage of the case in turn.
C. The prima facie case.
There are four elements to a prima facie case of employment
discrimination under the ADEA. The plaintiff must prove that: 1)
he was discharged; 2) he was qualified for his position; 3) he
was within the protected class; and 4) he was replaced by someone
outside the protected class, someone younger, or was otherwise
discharged because of his age.9 The plaintiffs argue that a
different standard should apply because this case represents a
"reduction in force," making it impossible to prove they were
"replaced" by someone younger or outside the protected class.10 We
note, however, that the "reduction in force" standard applies only
when a company lays off protected individuals, while retaining
younger employees in similar positions.11 While CSC Logic did
retain a number of younger employees after terminating Davis and
Brown, these individuals were not in management positions similar
to the plaintiffs'. Both remaining vice-presidents were over
9
Bodenheimer, 5 F.3d at 957; Elliot, 714 F.2d at 563.
10
See, Thornbrough, 760 F.2d at 642; Uffelman v. Lone Star
Steel Co., 863 F.2d 404, (5th Cir.), cert. denied, 490 U.S. 1098,
109 S.Ct. 2448, 104 L.Ed.2d 1003 (1989); Williams v. General
Motors Corp., 656 F.2d 120, 128 (5th Cir.1981), cert. denied, 455
U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982).
11
Id.
6
forty, as was CEO Kimzey, who was older than either plaintiff.
Thus, we will apply the standard evidentiary burden to the
plaintiffs' cases.
This decision does not eliminate the possibility that the
plaintiffs can prove a prima facie case. The elements of a basic
prima facie case include the possibility that a plaintiff may not
be able to show he or she was replaced by a younger employee. In
such a case, the plaintiff may instead meet his burden by
demonstrating that he "was otherwise discharged because of his
age."12 We now turn to the question of whether each plaintiff has
met his initial burden.
1. Donald Brown
Appellant Brown easily satisfies the first three elements of
his prima facie case. CSC Logic terminated him. He was forty-four
at the time. And, it is undisputed that Brown was qualified for
his position and performing satisfactorily. Brown's case falters,
however, on the final element of a prima facie case.
Because Brown's position was eliminated, he cannot show that
he was replaced by an individual outside the protected class, or by
someone younger. Additionally Brown fails to offer sufficient
evidence that otherwise indicates that he was discharged because of
his age.
Brown insists that this element is satisfied by evidence that
his duties were assumed by the younger Greg Shimkus. CSC Logic
contends that Shimkus did not assume Brown's duties, but that the
12
Bodenheimer, supra.
7
older CEO Kimzey actually took over Brown's job. Although it is
clear that Shimkus took control from Brown of the VSI and the ISC,
these events occurred more than sixteen months before Brown's
termination, and thus do not bear on the decision to discharge him.
In contrast, the evidence related to Shimkus's duties after Brown's
termination is weak and speculative.
For example, Brown points to the fact that after Brown's
departure, Shimkus began attending trade shows and conventions on
behalf of the company. Yet, Shimkus testified that he had been
scheduled to attend a show before Brown's departure, but was forced
to cancel. Similarly, Brown cites evidence that Shimkus handled
some contract negotiations for the company after Brown's
termination. Yet, Shimkus testified that he and others had
performed marketing and sales functions before Brown's departure as
well as afterwards. Finally, Brown complains that before Brown's
discharge, Kimzey consulted Shimkus about how Brown's departure
would affect his duties. To suggest that such a conference is
proof that Shimkus took over Brown's position is a highly tenuous
assertion. There simply is not enough evidence tending to show
that Shimkus effectively took over Brown's duties as Vice-President
and Director of Marketing. Brown's evidence is purely speculative
and insufficient to establish a prima facie case of employment
discrimination.
Brown also attempts to satisfy his burden with evidence that
younger employees were more favorably treated at CSC Logic. He
notes that while the company froze his own and Davis's salaries, it
8
gave raises to younger employees and actually hired younger
employees in the months prior to his termination. None of these
younger employees were management staff, however, and there is no
evidence that any officers received such favorable treatment at the
expense of Brown and Davis. In fact, the evidence shows that all
the vice-presidents had their salaries frozen, including those that
were retained. To compare hiring decisions for officers with those
for lower-level staff is not particularly probative, and does not
create a prima facie case.
Finally, we look at age-related remarks allegedly made to
Brown by CEO Kimzey. Such remarks may serve as sufficient evidence
of age discrimination if the offered comments are: 1) age related;
2) proximate in time to the terminations; 3) made by an individual
with authority over the employment decision at issue, and 4)
related to the employment decision at issue.13 Comments that are
"vague and remote in time" are insufficient to establish
discrimination.14 In contrast, specific comments made over a
lengthy period of time are sufficient.15
In this case, Brown offers only three allegedly discriminatory
statements made by Kimzey to Brown. First, Kimzey noted that the
staff was "getting long in the tooth." Second, in 1992, Kimzey
13
Turner v. North American Rubber, Inc., 979 F.2d 55, 59
(5th Cir.1992).
14
Guthrie v. Tifco Industries, 941 F.2d 374 (5th Cir.1991),
cert. denied, 503 U.S. 908, 112 S.Ct. 1267, 117 L.Ed.2d 495
(1992).
15
Fowler v. Carrollton Public Library, 799 F.2d 976 (5th
Cir.1986).
9
told Brown that he needed "hiring lessons; that you can hire a
pretty one and teach them the job, but you can't hire an ugly one
and make them pretty." Finally, Kimzey repeatedly told Brown that
appellant Davis was old.
These comments do not show age discrimination towards Brown.
None of these comments are directed to Brown, and the first two
comments arguably do not even reflect age discrimination.
Furthermore at least one of the remarks was made in 1992, sixteen
months before Brown was actually terminated. Taken as a whole, the
alleged age-related remarks made to Brown are too vague, indirect,
and remote in time to support a finding of a discriminatory
discharge. Because Brown has failed to present evidence sufficient
to support a prima facie case, his case must be dismissed.
2. Robert Davis
Like Brown, appellant Davis meets the first three elements of
a prima facie case. He was terminated from his position, was
fifty-eight, and was performing satisfactorily at the time of his
discharge. It is a much closer case, however, on whether Davis has
satisfied the fourth element.
As with Brown, Davis's position was terminated, so he cannot
show that he was replaced by a younger individual. Similarly, his
evidence that younger, non-management employees received pay raises
while his own salary remained the same is not relevant to the
company's treatment of management officials. And, like Brown,
Davis tries to show that his job responsibilities were effectively
assumed by the younger Linda Long, but offers only speculative
10
evidence in support.16
Thus, we again look for proof of discriminatory discharge in
the age-related comments allegedly made by Kimzey to Davis. Davis
alleges that Kimzey made at least four types of age-related remarks
to him. First, at the time of Davis's remarriage in 1991, Kimzey
stated, "you don't need to be remarrying a young woman again; you
can't even get it up." Second, on several occasions, Kimzey called
Davis an "old goat." Third, at a managers' meeting, when Davis was
16
For example, Davis asserts that after his termination,
Long traveled to California to present financial matters to the
parent company, a duty that had traditionally belonged to Davis.
Long's deposition also indicates, however, that Kimzey
accompanied Long to California on these trips and that Long was
only responsible for presenting the "numbers," while Kimzey was
responsible for presenting the actual fiscal consequences of
those numbers.
Davis also contends that Long assumed such duties as
preparing financial reports, preparing budgets and financial
plans, and contacting clients about their accounts. Yet,
there is no evidence that Long did not do such things before
Davis's departure. In fact, Long's deposition and affidavit
indicate that with the exception of two incidental matters,
she performed the same functions before Davis's departure as
afterwards.
Davis also points to the fact that Long was promoted to
"Director of Finance" after Davis's discharge. Yet, Long
did not receive a pay raise, or become a vice-president in
connection with that promotion, and as discussed, there is
no evidence that her job duties changed substantially.
Finally, Davis offers CSC Logic's letter to the EEC
regarding Davis's termination. That letter states that
Davis's responsibilities would be assumed by existing staff
"members," implying that CEO Kimzey did not assume all of
Davis's duties. Yet, this merely indicates that some of
Davis's responsibilities may have been assumed by someone
other than Kimzey. It in no way proves that an individual
other than Kimzey assumed a substantial portion of Davis's
duties. In short, Davis's conclusion that Long effectively
assumed his position, is speculation, and is insufficient to
meet his burden of proof.
11
unable to remember a number, Kimzey stated, "you just can't
remember, you're getting too old." And finally, in connection with
a work assignment, Kimzey allegedly asked Davis if "senility was
setting in."
Unlike the comments made to Brown, all of these comments were
directed at Davis, and were all clearly age-related. Further, all
but the first comment were made near the time of Kimzey's
termination. Finally, at least two of the comments imply that
Kimzey believed Davis's age was affecting his job performance. In
short, these alleged remarks are sufficiently troublesome to
satisfy Davis's burden of proving a prima facie case.17
D. Is there sufficient evidence of pretext?
Having found that appellant Davis successfully presented a
prima facie case of age discrimination, we must next determine if
CSC Logic's stated reason for the appellant's discharge was
pretext.18
According to CSC Logic, it discharged Davis for economic
reasons. In challenging this explanation as pretext, Davis does
not dispute that CSC Logic was in a financial crisis. Instead,
most of his evidence on this point merely questions whether
terminating the plaintiffs was the best solution to the company's
17
The evidence necessary to prove a prima facie case of
employment discrimination may be limited if it "exudes that faint
aroma of impropriety that is sufficient to justify requiring the
[company] to give reasons for its decision." Thornbrough, 760
F.2d at 643-44.
18
Bodenheimer, 5 F.3d at 957-58; Thornbrough, 760 F.2d at
639.
12
financial problems.
Specifically Davis cites the following evidence: 1) the
appellants were the only two employees laid off in April 1993; 2)
the total number of employees at CSC Logic increased in the two
months after the appellants' terminations; 3) according to
financial projections created by Davis prior to his termination,
appellants were not members of departments with over staffing
problems; 4) after CSC Logic learned that it would lose its
largest client, the company gave across the board raises,
(including many to younger employees) and hired many new employees
(most of whom were younger than the appellants); 5) the
appellants' duties were not substantially affected by the loss of
the major client; and 6) just before his termination, Davis had
created a budget with a profit margin three percent higher than
that required by the parent company, yet Kimzey claimed that
additional cutbacks were necessary.
All of this evidence merely questions the prudence of CSC
Logic's methods of cost cutting. As such, it is not compelling,
particularly in light of evidence to the contrary. For example,
although Davis and Brown were the only employees laid off in April
1993, CSC Logic laid off seventy-two other employees between March
and June 1993. Furthermore, although CSC Logic did hire new
employees and give across the board raises in 1992, they were the
result of an unexpected windfall received when Ford extended its
business with the company through the end of 1992.
After the windfall passed, CSC Logic made significant cutbacks
13
in 1993, including: 1) renegotiating its office lease; 2)
releasing excess office space; 3) eliminating contributions to
employee insurance benefits reserve; 4) eliminating payments to
the bad debt reserve; 5) reducing anticipated bonus payments; 6)
eliminating expected salary increases; 7) reducing capital
expenditures; 8) replacing leased printers; and 9) releasing 74
employees, including the appellants.
Although CSC Logic did hire some new employees in 1993, they
were all in low-level positions. The company did not hire new
management officers, or give raises to the existing management.
Furthermore, the only evidence that CSC Logic hired employees in
over-staffed departments or that there was no over-staffing in the
appellants' departments comes from financial reports created by
Davis himself. We are not surprised that when ordered to trim the
budget, Davis did not find over-staffing in his own department.
Additionally, arguing that there was no over-staffing in the
financial department does not address the question of whether there
was over-staffing in the executive ranks.
Similarly speculative is Davis's assertion that his duties
were not substantially affected by the loss of the Ford account,
and that he had created a budget with a high enough profit margin
that further cutbacks were unnecessary. There is no precedent for
requiring a financially strapped company to only make cutbacks in
certain departments or in the specific manner suggested by the
terminated plaintiff. In fact, Davis's plan suggested firing five
or six employees, at a saving of only $200,000. By dismissing
14
Brown and Davis, CSC Logic was able to save over $300,000, while
dismissing fewer individuals. Guesswork and speculation simply
cannot serve as a basis for sending a case to a jury.19
We also note that Davis was hired at the age of 54, by the
then 56 year old Kimzey. Davis was fired only four years later,
also by Kimzey, who was then 60. This situation gives rise to an
inference that age discrimination was not the motive behind Davis's
termination. This "same actor" inference has been accepted by
several other circuit courts, and we now express our approval.20
The rationale behind this inference is best stated by the Fourth
Circuit in Proud v. Stone.21
" "[c]laims that employer animus exists in termination but not
in hiring seem irrational.' From the standpoint of the
putative discriminator, "[it hardly makes sense to hire
workers from a group one dislikes (thereby incurring the
psychological costs of associating with them), only to fire
them once they are on the job.' "22
The fact that the actor involved in both employment decisions is
19
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 814
(5th Cir.1991); Laurence v. Chevron, U.S.A., Inc., 885 F.2d 280,
285 (5th Cir.1989).
20
Buhrmaster v. Overnite Transp. Co., 61 F.3d 461, 463 (6th
Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 785, 133
L.Ed.2d 736 (1996); Rand v. CF Industries, Inc. 42 F.3d 1139,
1147 (7th Cir.1994); LeBlanc v. Great American Ins. Co., 6 F.3d
836, 847 (1st Cir.1993); Lowe v. J.B. Hunt Transport, Inc., 963
F.2d 173, 175 (8th Cir.1992); Proud v. Stone, 945 F.2d 796, 797-
98 (4th Cir.1991).
21
945 F.2d at 796.
22
Proud, 945 F.2d at 797, citing, Donohue & Siegelman, The
Changing Nature of Employment Discrimination Litigation, 43
Stan.L.Rev. 983, 1017 (1991).
15
also a member of the protected class only enhances the inference.23
By expressing our approval of this inference, we do not rule out
the possibility that an individual could prove a case of
discrimination in a similar situation.24 We hold only that the
facts in this particular case are not sufficiently egregious to
overcome the inference that CSC Logic's stated reason for
discharging Davis was not pretext for age discrimination.25 Because
Davis has failed to meet his evidentiary burden on the issue of
pretext, his case must be dismissed.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the district
court's grant of summary judgment in favor of the defendant CSC
Logic.
23
See LeBlanc, 6 F.3d at 847.
24
See Proud, 945 F.2d at 798.
25
We additionally note that the outcome of this case is not
effected by this court's recent en banc decision in Rhodes v.
Guiberson Oil Tools, 75 F.3d 989 (5th Cir.1996). In that case,
this court elaborated the legal standard necessary to prove
pretext in an age discrimination case. In this case, however,
the existence of the Proud presumption, coupled with the
insufficiency of the evidence available to rebut that
presumption, makes it unnecessary for this court to examine
whether the evidence presented by Davis would satisfy the Rhodes
standard in the absence of the Proud presumption.
16