United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 22, 1999 Decided May 25, 1999
No. 98-7112
Marvin W. Hall,
Appellant
v.
Giant Food, Inc.,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 97cv00470)
Stephan J. Boardman argued the cause and filed the brief
for appellant. Edward C. Golumbic entered an appearance.
Edward R. Levin argued the cause and filed the brief for
appellee.
Before: Edwards, Chief Judge, Sentelle and Henderson,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Separate statement filed by Circuit Judge Henderson,
concurring in the result.
Edwards, Chief Judge: On August 18, 1995, Marvin W.
Hall, who was employed as a tractor trailer driver with Giant
Food, Inc. ("Giant"), was discharged by Giant for repeated
acts of misconduct. A grievance was filed on Hall's behalf by
his union, Local 639 of the International Brotherhood of
Teamsters ("Local 639"), and the matter was subsequently
submitted to arbitration. The arbitrator converted Hall's
discharge to a disciplinary suspension and ordered his rein-
statement without back pay.
Following his reinstatement, Hall filed a charge with the
Equal Employment Opportunity Commission ("EEOC"), al-
leging for the first time that his termination had been moti-
vated by age discrimination. Hall's claim was based on an
alleged discussion that he had with a supervisor shortly after
his return to work. According to Hall, the supervisor told
him that he was too old for the job and had been terminated
for that reason. Hall, who was forty years old at the time of
his termination, then sued Giant under the Age Discrimina-
tion in Employment Act ("ADEA"), 42 U.S.C. ss 621-34,
alleging that Giant terminated him because of his age. The
District Court granted summary judgment for Giant, and we
now affirm.
Hall cannot establish discrimination, either directly or indi-
rectly, because he has failed to raise a triable issue of
discriminatory intent on the part of Giant, or to create a jury
question as to Giant's asserted grounds for discharging him.
This is a run-of-the-mill case concerning employee misconduct
and the appropriateness of the disciplinary penalty imposed
therefor. The issues in dispute here do not implicate the
federal laws against discrimination. The matter was properly
submitted to arbitration and resolved there. Hall may be
dissatisfied with the arbitrator's judgment, but his mere
displeasure does not afford him a further avenue of redress in
the federal courts.
I. Background
On June 27, 1988, Giant hired Hall as a tractor trailer
driver. Until 1994, Hall apparently performed his job with-
out incident. Beginning in late 1994, however, problems
began to arise. Between November 1994 and July 1995, Hall
was subject to disciplinary actions for failure to properly
notify the company when absent, driving company equipment
in an unsafe manner, and wasting time on the job.
The incident that resulted in Hall's termination occurred on
August 4, 1995, when Lorin Turnblacer, a Giant driver super-
visor, observed a Giant truck illegally parked in a right turn
lane off of its designated route. Turnblacer discovered that
Hall had been shopping for motorcycle parts without record-
ing the break on his "trip card." Company policy requires all
drivers to maintain detailed records of the start and end
times of all breaks and activities occurring during the course
of their work shifts, and to record the times and locations of
breaks at the start of those breaks. Company policy further
prohibits shopping on company time and traveling off-route
without an authorized reason. Abuse of these policies may
subject a driver to dismissal.
Following the August 4, 1995 incident, Turnblacer suspend-
ed Hall, citing violations of Giant's break and off-route poli-
cies. On August 7, 1995, Turnblacer reported the facts of the
incident to Pamela Sanford, Giant's General Manager of
Transportation. Sanford, in turn, provided written notice of
Hall's suspension to union officials at Local 639. Sanford also
relayed the information to Chris Balodemas, Giant's Director
of Transportation, Traffic and Fleet Maintenance. Although
Sanford is responsible for disciplining drivers who do not
comply with company policies and procedures, she does not
have the authority to terminate drivers. Upon review, Bal-
odemas determined that Hall's violation of multiple company
policies warranted dismissal. On August 18, 1995, following a
grievance meeting between Hall, Giant, and Local 639, Giant
terminated Hall. Hall was forty years old at the time.
On August 21, 1995, in accordance with the collective
bargaining agreement between Giant and Local 639, union
officials filed a grievance contesting Hall's termination. Giant
attempted to settle the matter by offering to reinstate Hall if
he would sign a conditional reinstatement agreement, but
Hall declined this offer on three separate occasions. Negotia-
tions between the parties were ultimately unsuccessful, and
the matter proceeded to arbitration. After "careful consider-
ation," the neutral arbitrator was "unable to conclude that the
discharge was for good cause," but was also "unable to
conclude that [Hall's] offense ... was 'minor.' " Arbitration
Statement and Award at 2, reprinted in Supplemental Appen-
dix ("S.A.") 27. The arbitrator believed that, although Hall
had violated company rules, the penalty of discharge was too
severe. Accordingly, he directed Giant to reinstate Hall with
seniority, but denied Hall's request for back pay or benefits,
instead treating the time off as a "disciplinary suspension."
Id.
On May 7, 1996, following his reinstatement, Hall filed a
charge with the EEOC, alleging for the first time that his
termination had been motivated by age discrimination. Hall's
claim was based on a discussion that he had with Sanford
shortly after his return to work. According to Hall's affida-
vit, Sanford "informed [him] that the true reason for [his]
termination was [his] age." Hall Affidavit p 6, reprinted in
Appendix ("App.") 24. Sanford allegedly told Hall that he
was "too old" for the job, and that she wanted him "to resign
because [she] want[ed] younger and safer drivers in here."
Transcript of Deposition Testimony at 41, reprinted in S.A.
90. The EEOC issued a right-to-sue letter.
Hall then filed suit in District Court under the ADEA,
alleging, inter alia, that Giant terminated him because it
wanted to replace him with younger drivers. On May 27,
1998, the District Court granted Giant's motion for summary
judgment. See Hall v. Giant Food Inc., No. 97-470 (D.D.C.
May 27, 1998) ("Memorandum"), reprinted in App. 4-12.
The court found that Hall had established a prima facie case
of age discrimination, that Giant had advanced legitimate
nondiscriminatory reasons for Hall's termination, and that
Hall had failed to create a jury question as to whether Giant's
stated reasons were pretextual. See id. at 6, reprinted in
App. 9. In the court's view, the remark allegedly made by
Sanford was of only limited probative value, because it was
made eight months after the decision to terminate Hall, and
because Balodemas, not Sanford, made the final decision to
terminate Hall. See id. This appeal followed.
II. Analysis
A. Standard of Review
In reviewing a district court's grant of summary judgment,
we consider the evidence de novo. See Aka v. Washington
Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc).
"[A] party is only entitled to summary judgment if the record,
viewed in the light most favorable to the nonmoving party,
reveals that there is no genuine issue as to any material fact."
Id.; see Fed. R. Civ. P. 56(c). "[S]ummary judgment will not
lie if ... the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Aka, 156 F.3d at
1288 (internal quotation marks omitted).
B. Age Discrimination Claim
The ADEA makes it "unlawful for an employer ... to
discharge ... or otherwise discriminate against any individu-
al [who is at least forty years old] ... because of such
individual's age." 29 U.S.C. s 623(a)(1) (1994); see id.
s 631(a). In analyzing a discrimination claim under the
ADEA, we apply the framework developed in the context of
Title VII litigation, see Paquin v. Federal Nat'l Mortgage
Ass'n, 119 F.3d 23, 26 (D.C. Cir. 1997)--that is, where direct
evidence of discriminatory intent is not available, a party may
establish unlawful age discrimination by relying on the famil-
iar burden-shifting scheme first articulated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).
Under the McDonnell Douglas framework, the employee
must first establish a prima facie case of prohibited discrimi-
nation. See Aka, 156 F.3d at 1288. In the ADEA context,
Hall had to show that he belongs in the statutorily protected
age group, he was qualified for the position, he was terminat-
ed, and he was disadvantaged in favor of a younger person.
See Paquin, 119 F.3d at 26. If the employee succeeds in
establishing a prima facie case, the burden "shifts to the
employer to articulate legitimate, nondiscriminatory reasons
for the challenged employment decision." Aka, 156 F.3d at
1288. The employer must " 'clearly set forth, through the
introduction of admissible evidence,' reasons for its actions
which, if believed by the trier of fact, would support a finding
that unlawful discrimination was not the cause of the employ-
ment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
507 (1993) (quoting Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). If the employer does so,
the presumption of discrimination raised by the prima facie
showing is rebutted and "drops from the case." Burdine, 450
U.S. at 255 & n.10. At that point, the employee "has an
opportunity to discredit the employer's explanation," Aka, 156
F.3d at 1288, by demonstrating that the proffered reasons are
a mere pretext for discrimination, see Paquin, 119 F.3d at 26-
27. The employee retains throughout the "ultimate burden of
persuading the court that [he] has been the victim of inten-
tional discrimination." Burdine, 450 U.S. at 256.
In the proceedings before the District Court, Hall relied on
a single piece of evidence in support of his claim of age
discrimination--namely, Sanford's alleged remark that Hall's
age was the "true reason" for his termination, and that Hall
was "too old" for the job of tractor trailer driver. In Hall's
view, this remark constitutes both direct evidence of age
discrimination and indirect evidence that Giant's stated rea-
sons for his discharge were pretextual. See Brief for Appel-
lant at 8. Although Sanford denies making the alleged
remark, see Sanford Declaration p 13, reprinted in App. 17,
for the purposes of summary judgment, we must accept as
true the allegations contained in Hall's affidavit. See Greene
v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (holding that
district court's grant of summary judgment for defendant
invaded jury's province, because plaintiff's sworn affidavit was
sufficient to support verdict against defendant, and credibility
determinations are within "exclusive domain" of fact finder).
We conclude that the District Court properly granted sum-
mary judgment for Giant, because, even if Sanford made the
remark, Hall cannot prove discrimination either directly or
indirectly based solely on that evidence.
The District Court perceived this case as one proceeding
under the McDonnell Douglas framework of indirect proof.
The court found that, construing the facts in the light most
favorable to plaintiff, Hall could establish the initial presump-
tion of age discrimination based on a prima facie showing that
he was forty years old at the time of his termination, was
qualified for and performing the duties of his driver position,
was terminated from that position, and was disadvantaged
with respect to younger drivers who were retained in Giant's
employ. See Memorandum at 6, reprinted in App. 9. The
court further found that Giant effectively rebutted Hall's
prima facie case by demonstrating that Hall had been disci-
plined on several occasions, including the instance directly
leading to his discharge, and that several of the policies at
issue expressly provided for termination in the event of
violations. See id. Finally, the court determined that Hall
had failed to demonstrate that Giant's asserted basis for
terminating him was a pretext for discrimination, because
Hall's only evidence was the remark allegedly made by
Sanford during a discussion that occurred eight months after
Hall was terminated, and was not made by the party who
made the decision to discharge Hall. See id.
There is absolutely nothing in this record to indicate that
Hall was disadvantaged in favor of a younger person; thus,
there is a question as to whether Hall even made out a prima
facie case. The District Court found that Hall was disadvan-
taged with respect to younger drivers who were retained in
Giant's employ, but this finding is baffling on this record.
Hall was reinstated pursuant to arbitration, so he did not lose
his job. He lost wages and benefits during the time of his
disciplinary suspension, but these losses indisputably resulted
from Hall's misconduct, not his age. In other words, the
arbitrator found that Hall was guilty of misconduct as alleged
by Giant, so a disciplinary suspension was found fully justi-
fied. Claims of age discrimination were never even raised in
arbitration. We need not pursue this line of inquiry, howev-
er, for the parties' arguments on appeal do not concern the
sufficiency of Hall's prima facie case and, indeed, the District
Court proceeded to consider the full merits of Hall's discrimi-
nation claim and Giant's rebuttal evidence. See United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) ("Where the defendant has done everything that would
be required of him if the plaintiff had properly made out a
prima facie case, whether the plaintiff really did so is no
longer relevant."); see also Hayman v. National Academy of
Sciences, 23 F.3d 535, 537 (D.C. Cir. 1994) (holding, on review
of district court's grant of judgment notwithstanding the
verdict, that once court had allowed in employer's full rebut-
tal evidence, relevant question turned on sufficiency of em-
ployee's evidence of discrimination as opposed to sufficiency
of her prima facie case); Debs v. Northeastern Ill. Univ., 153
F.3d 390, 395-96 (7th Cir. 1998) (determining, on review of
district court's grant of summary judgment, that where par-
ties were not disputing whether employee made out prima
facie case, court would assume that prima facie requirements
were satisfied and proceed to question whether employer's
proffered reasons were pretextual). We will therefore in-
dulge the fiction that Hall made out a prima facie case and
review the case on the same terms as did the District Court.
Assuming for the purposes of our analysis that the District
Court was correct with regard to its assessment of Hall's
prima facie case and Giant's rebuttal thereof, any presump-
tions arising under the burden-shifting scheme are no longer
a factor in this case. See Burdine, 450 U.S. at 255 & n.10.
We are left, then, with the question whether Hall could meet
his ultimate burden of demonstrating--whether directly or
indirectly--that Giant intentionally discriminated against him:
[T]he focus of proceedings at trial (and at summary
judgment) will be on whether the jury could infer dis-
crimination from the combination of (1) the plaintiff's
prima facie case; (2) any evidence the plaintiff presents
to attack the employer's proffered explanation for its
actions; and (3) any further evidence of discrimination
that may be available to the plaintiff (such as indepen-
dent evidence of discriminatory statements or attitudes
on the part of the employer) or any contrary evidence
that may be available to the employer (such as evidence
of a strong track record in equal opportunity employ-
ment).
Aka, 156 F.3d at 1289. "[T]he court must consider all the
evidence in its full context in deciding whether the plaintiff
has met his burden of showing that a reasonable jury could
conclude that he had suffered discrimination and accordingly
summary judgment is inappropriate." Id. at 1290.
We have no doubt that, considering "the total circum-
stances of the case," Aka, 156 F.3d at 1291, Hall's evidentiary
proffer is insufficient to survive Giant's motion for summary
judgment, whether it is advanced as direct evidence of dis-
criminatory intent or indirect evidence of pretext for discrimi-
nation.
First, the record is clear that Balodemas, not Sanford,
made the decision to terminate Hall. Sanford did not have
the authority to fire Hall; indeed, Hall offered no evidence to
establish that Sanford was even involved in the decision-
making process. To be sure, Sanford conveyed to Balodemas
the information in connection with Hall's August 4, 1995
suspension. Sanford, however, merely communicated the
facts as relayed to her by Turnblacer. Hall offers no evi-
dence that Sanford recommended to Balodemas that Hall be
discharged, that Sanford was sufficiently involved to be aware
of Balodemas's reason for terminating Hall, or that Sanford
had the ability to influence Balodemas's decision. See Griffin
v. Washington Convention Ctr., 142 F.3d 1308, 1311-12 (D.C.
Cir. 1998) ("[E]vidence of a subordinate's bias is relevant
where the ultimate decision maker is not insulated from the
subordinate's influence."); cf. Shorette v. Rite Aid of Maine,
Inc., 155 F.3d 8, 13-15 (1st Cir. 1998) (pointing to lack of
evidence that managers who allegedly made discriminatory
remarks participated in employer's discharge decisions). It
appears from the record that Balodemas made an indepen-
dent assessment of Hall's conduct and concluded that Hall's
violations of multiple Giant employment policies warranted
his termination. See Balodemas Declaration p 3, reprinted in
App. 20-21. Hall offers nothing to refute this version of
events, and thus, his reliance on Sanford's remark proves at
most that Sanford herself harbored a bias completely unrelat-
ed to Giant's decision to terminate Hall.
Second, Sanford's alleged remark was made shortly after
Hall had been reinstated to his position, and a full eight
months after the original decision to terminate him had been
made. This fact tends to isolate the comment reflecting age
bias from the relevant decision to terminate Hall. Although
the temporal gap is not necessarily dispositive in itself, it
obscures any conceivable nexus between Sanford's statements
and the challenged employment decision. Cf. Indurante v.
Local 705, Int'l Bhd. of Teamsters, 160 F.3d 364, 367 (7th Cir.
1998) (considering, inter alia, the fact that statements alleg-
edly reflecting age discrimination were made sixteen months
before employee's termination).
Third, Hall does not even attempt to impugn Giant's stated
reason for terminating him. At the time of the events leading
to Hall's termination, the relevant employment policies were
clearly established and were made known to Giant employees
in both oral and written form. Giant's break, trip card, and
off-route policies expressly provided that violations constitut-
ed grounds for dismissal. These policies were cited by
Turnblacer as the reason for Hall's initial suspension, and by
Balodemas as the reason for Hall's ultimate termination.
These policies were also the subject of the arbitration pro-
ceedings concerning Hall's discharge--proceedings during
which the subject of Hall's age did not even arise. Moreover,
as a factual matter, Hall does not dispute that he violated
these policies. Under these circumstances, we find that
Giant's stated justification for Hall's discharge is credible and
unrefuted.
Finally, Giant offered evidence that compellingly demon-
strates a favorable record of hiring and retaining drivers over
the age of forty. We have stated that "[w]here an employer
has a strong record of equal opportunity employment, any
inference of discrimination arising from the discrediting of
the employer's explanation may be a weak one, and in some
cases not strong enough to let a reasonable factfinder con-
clude that discrimination has occurred at all." Aka, 156 F.3d
at 1291. Here, Giant's hiring records show that, of the 317
union drivers employed by Giant in August 1995, 243--
approximately three quarters--were older than Hall. Like-
wise, as of April 1997, 229 of 309--about the same percent-
age--were older than Hall. This evidence tends to refute any
implication that Giant was attempting to purge its force of
older employees. Cf. Greene v. Safeway Stores, Inc., 98 F.3d
554, 561 (10th Cir. 1996) (permitting plaintiff to introduce
evidence that other employees in protected age class were
replaced, because "evidence concerning the make-up of the
employment force and events which occurred after plaintiff's
termination were entirely relevant to the question of whether
or not age was one of the determinative reasons for plaintiff's
termination").
In short, whatever claims Hall had to bring were raised,
heard, and resolved in arbitration pursuant to the terms of
the collective bargaining agreement between Giant and Local
639. The matter ended with the issuance of the arbitrator's
award. The issues in dispute here do not implicate the
federal laws against discrimination.
III. Conclusion
For the reasons stated above, we affirm the District
Court's grant of summary judgment for Giant.
So ordered.
Karen LeCraft Henderson, Circuit Judge, concurring:
While I concur in the result, I write separately to point out
that the first sentence of paragraph 6 of Hall's affidavit (as
Hall's lawyer--who acknowledged he drafted the affidavit--
conceded at oral argument), which avers that Sanford "in-
formed [Hall] that the true reason for [Hall's] termination
was [Hall's] age, not the other reasons raised earlier," is
Hall's lawyer's gloss on Sanford's actual words quoted in the
next two sentences of paragraph 6--that he was "too old,"
that she wanted "younger," safer drivers and that he "had to
go." Hall Aff. p 6, reprinted in App. 24. Hall, then, does not
aver that Sanford in fact said "the true reason for [his]
termination was [his] age," id., and there is no other evidence
of discrimination in the record. Accordingly, Hall failed to
establish a prima facie case of discrimination and I find it
unnecessary to go further.