Kenneth A. Dockins v. Benchmark Communications

KING, Circuit Judge,

dissenting:

Kenneth Dockins claims to have been discharged on account of his age and, on the record before us, he can prove it. Tellingly, the Local Sales Manager at WESC referred to Mr. Dockins as a “dinosaur.” In addition, each time LoConte— the decision maker with respect to Mr. Dockins’s employment status — took adverse employment actions against Mr. Dockins, he made disparaging comments about Mr. Dockins’s age. In analyzing whether Mr. Dockins was, as Benchmark asserts, nothing more than a poorly performing salesperson who was properly discharged in February 1996, a jury can take into account, for example, the fact that Benchmark named Mr. Dockins to its All-Star Sales Team in January 1996 and that it also awarded Dockins at least two performance-based bonuses in the last half of 1995.

Given these and other facts in the record, I am compelled to dissent. In my view, the majority has failed to properly apply the analytical framework enunciated by this court in Vaughan v. Metrahealth Cos., Inc., 145 F.3d 197 (4th Cir.1998), and has ignored the legal mandate that, when reviewing an award of summary judgment, this court must view the evidence in the light most favorable to the nonmoving party, Burns v. AAF-McQuay, Inc., 96 F.3d 728, 730 (4th Cir.1996), cert. denied, 520 U.S. 116, 117 S.Ct. 1247, 137 L.Ed.2d 329 (1997). As a result, it has incorrectly determined that Mr. Dockins has not raised a jury question on his ADEA claim.

In order to prevail on his ADEA claim, Dockins need only satisfy the two-pronged inquiry at the final stage of the McDonnell Douglas framework: he must present sufficient evidence that the employer’s proffered nondiseriminatory reason is false and that discrimination is the “real reason” for the discharge. See Vaughan, 145 F.3d at 201-02; Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416-17 (4th Cir.1998) (noting our adoption of the pretext-plus standard in Vaughan).

The district court correctly concluded, contrary to the majority here, that Doc-kins had presented sufficient evidence to create a genuine issue of material fact about the legitimacy of Benchmark’s proffered reason for the discharge — poor performance. Mr. Dockins claims, in suN stance, that his asserted poor performance was the fault of Benchmark, and thereby puts the legitimacy of the proffered reason for his discharge at issue. He specifically *751points to other factors that caused his low sales figures for the third and fourth quarters of 1995.1

As the district court recognized, during the two quarters at issue Mr. Dockins had an unusually high amount of “trade business” that was not reflected in his cash sales figures.2 Call-in customers seeking to buy air time were diverted from Mr. Dockins and channeled to younger sales representatives. Indeed, account executive Allan Jenkins acknowledged under oath that some call-in business that should have gone to Mr. Dockins was probably either kept by Wayne Sumner or given to another salesperson.3 For these reasons, the district court correctly concluded that, viewing the evidence in the light most favorable to Mr. Dockins, a reasonable trier of fact could decide that Benchmark’s articulated reason for its termination of Mr. Dockins is a pretext.4

Next, in order to survive summary judgment, Mr. Dockins must satisfy the second prong of the pretext-plus inquiry. He is required to adduce “some evidence on which a juror could reasonably base a finding that discrimination motivated the challenged employment action.” Vaughan, 145 F.3d at 202. Dockins must “present affirmative evidence of age-based animus.” Burns, 96 F.3d at 732. Mr. Dockins clearly meets this burden with, inter alia, his testimony regarding the comments relating to his age and health made to him by LoConte, the decisionmaker.

First, in August 1995, when LoConte and Dockins were walking to the General Manager’s office for the meeting in which Dockins was asked to become an independent contractor, LoConte said to Dockins: “This will relieve you at your age of a lot of stress and problems from what I’m going to put on everybody else.” After the meeting, according to Dockins, LoConte

reiterated again that at my age and health — and I don’t know what he’s talking about, health, other than the fact that I had had diverticulosis in May— that I didn’t need to be under the stress that he was going [to] put on everybody and to think long and hard about it.

*752Dockins was the only employee who was asked to become an independent contractor; he declined, because it would have left him without, among other things, retirement benefits and life and health insurance.

LoConte’s next age-related comment was delivered in mid-January 1996, when he put Mr. Dockins on thirty days’ probation. Of significance, this incident occurred only two weeks after Mr. Dockins was named to Benchmark’s All Star Sales Team for having sold over $300,000 worth of advertising in 1995.5 Yet LoConte placed Mr. Dockins on probation “due to poor performance for WESC sales.” When LoConte told Mr. Dockins about the probation, he said: “With your health and your age, you need to pick up the slack in your sales and I’m going to put you on 30-day probation.”

Finally, on February 19, 1996, LoConte terminated Dockins from employment with Benchmark. Sumner, who had called Mr. Dockins a dinosaur, was present at the termination meeting.6 According to Mr.Dockins, LoConte advised him on that occasion that “with my health and my age, that it was best that I do something else and for us to part ways.”7

These direct and unambiguous age-related comments were made by the decision-maker and were delivered contemporaneous with adverse employment actions. The timing and connection of these statements negates any possible assertion that they might be considered nonprobative, isolated remarks. See O’Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 549 (4th Cir.1995) (there must be some “ ‘nexus ... between the alleged discriminatory statements and any of the employment decisions made by the [employer]’ ”) (quoting EEOC v. Clay Printing, 955 F.2d 936, 942 (4th Cir.1992)), rev’d on other grounds, 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

Furthermore, contrary to the majority’s assertions, ante, at 749-750, Mr. Dockins’s testimony is sufficient — standing alone — to survive summary judgment.8 Gray v. *753Spillman, 925 F.2d 90, 95 (4th Cir.1991)(concluding that plaintiffs own deposition testimony created a genuine issue of material fact regarding his § 1983 claim and that summary judgment for the defendants was improper). The testimony of Mr. Dockins “is significantly probative; if believed by the jury, the testimony is dispositive. Whether or not [Dockins’s] testimony should be believed is a credibility determination that is not for us to make.” Id.

Put simply, this is a case for jury determination, and any lawyer would be pleased with this much evidence from which to frame a jury argument on Mr. Dockins’s behalf. Mr. Dockins has presented more than sufficient evidence “from which a reasonable factfinder could conclude that [Benchmark] engaged in intentional age discrimination.” Halperin v. Abacus Tech. Corp., 128 F.3d 191, 202 (4th Cir.1997) (citation omitted).

Because, on this record, a genuine issue of material fact clearly exists, Mr. Doc-kins’s claim should be heard by a jury — a right that is guaranteed by the ADEA. 29 U.S.C. § 626(c)(2); Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Consequently, I would reverse and remand for a jury determination of whether the termination of Mr. Dockins violated the ADEA. I must respectfully dissent.

. In his Order granting summary judgment entered on February 13, 1998, Judge Herlong found as follows:

Dockins contends that he generated an unusually high amount of "trade business” that watered down his cash sales figures. Furthermore, Dockins alleges that several actions taken by Benchmark worked to curb his sales figures. He states that he did not receive sufficient “call-in” business during the period in question. Finally, Doc-kins alleges that Benchmark failed to protect the accounts he already managed by allowing other account executives to undercut certain clients. These allegations unequivocally refute the facts supporting Benchmark's stated reason. Viewing these in the light most favorable to Dockins, the court finds that a reasonable trier of fact could decide that Benchmark’s proffered reason is not legitimate.

. "Trade business” refers to an exchange of merchandise (or services) for radio time. Mr. Dockins was handling about $20,000 of trade business during the relevant period. He did not receive credit or commissions for his trade business, though there is evidence that other account executives, such as Wayne Sumner, were allowed to be paid 10 percent commissions on trade. See ante, at 747-748.

Although, there is conflicting testimonial evidence on this point, the issue of credibility of witnesses is not for this court. See United States v. Burgos, 94 F.3d 849, 868 (4th Cir.1996) (en banc) ("Determining credibility of witnesses and resolving conflicting testimony falls within the province of the factfinder, not the reviewing court.”) (citation omitted), cert. denied, 519 U.S. 1151, 117 S.Ct. 1087, 137 L.Ed.2d 221 (1997).

. Sumner not only won the top sales award for WESC for 1995, but also was Benchmark’s company-wide sales leader for 1995. Sumner is the Local Sales Manager who referred to Mr. Dockins as a dinosaur.

. Contrary to the majority’s assertions, ante at 747, it is not necessary for Mr. Dockins to demonstrate that each of Benchmark's actions was motivated by age bias. At the pretext stage of the pretext-plus inquiry, as the district court correctly found, Mr. Dockins need only specifically refute the facts that support Benchmark’s proffered reason for his termination. See DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir.1998) (citation omitted).

. Although General Manager Allen Power testified that $300,000 was set as an easy mark so that sales representatives from Benchmark’s smaller stations could be included on the All-Star Team, ante, at 748 n. 2, none of the representatives from WESC's sister station, WFNQ (now identified as WTPT) made the 1995 All-Star Team. Moreover, there are at least two other stations appearing in other award categories that are not represented on the All-Star Team. Certainly a reasonable juror could find that Benchmark's All-Star Team was an award of significance, and that Power’s explanation was unpersuasive.

. That Sumner (or any of the other account executives) was roughly the same age as Mr. Dockins does not insulate Benchmark from liability here. Ante, at 750. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996).

. The majority too readily dismisses the health-related comments as irrelevant. These comments were neither remote in time from, nor unconnected to, the adverse employment decisions; nor were they simply truisms about age, as the majority asserts. The comments were not general statements about health problems increasing with age, cf. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.1994); Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir.1980), rather they explicitly concerned Mr. Dockins’s health and age.

The import of the health-related statements is just the sort of question that a jury, and not this court, should decide. A reasonable fact-finder could find, on the basis of evidence in the record, that there was little foundation for the concern about Mr. Dockins’s health, and that the health-related comments, made in conjunction with age-related statements and contemporaneously with adverse employment actions being taken against Mr. Dockins, were probative of age animus.

. Williams v. Cerberonics, Inc. , 871 F.2d 452 (4th Cir.1989), cited by the majority, ante, at 749, is inapposite. There, we reviewed the district court’s judgment following a bench trial that Cerberonics’s termination of Ms. Williams did not violate Title VII. The issue for our review was whether the trial court clearly erred in finding that Ms. Williams was fired for legitimate reasons. Id. at 456. We concluded that the district court did not err in discounting Williams’s few assertions of discrimination, which had all been "conclusively rebutted” at trial, in the face of "overwhelm*753ing” evidence supporting the legitimacy of the reasons proffered for her termination. Id. at 456-57. This is not the case here. The question before us is simply whether or not Mr. Dockins has raised a genuine issue of material fact to get to a jury. This he can do with deposition testimony alone. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir.1991).