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Under the three-stage proof scheme originally set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), "the burden of production shifts to the employer 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" O'Connor v. Consolidated Coin Caterers, 517 U.S. 308, 310-13, 134 L. Ed. 2d 433, 116 S. Ct. 1307 (1996) (outlining prima facie case). Once the employer meets its burden of production, plaintiff "must bear the burden of proving that she was the victim of intentional discrimination. She can do this by demonstrating that [the Employers] proffered reason was a mere pretext and that, as between [her] age and [the Employers] explanation, age was the more likely reason for the dismissal." Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988) (citing E.E.O.C. v. Western Electric Co., 713 F.2d 1011, 1014 (4th Cir. 1983)); see also Halperin v. Abacus Technology Corp., 128 F.3d 191, 201 (4th Cir. 1997); Vaughn v. Metrahealth, 145 F.3d 197 (4th Cir. 1998)
CAUTION: AGE CASES ARE PARTICULARLY DIFFICULT
In ADEA ("age discrimination") cases, the plaintiff must present evidence demonstrating a "reasonable probability" and not merely a "possibility" of age discrimination. Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 242 (4th Cir.1982).
A plaintiff can prove an ADEA violation in one of two ways. EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir.1992). First, a plaintiff can offer direct and circumstantial evidence that he would not have been discharged but for his age; the evidence must be of sufficient probative force to support an inference of discrimination. Goldberg v. B.Green & Co., 836 F.2d 845, 847 (4th Cir.1988); Taylor v. Home Insurance Co., 777 F.2d 849, 854 (4th Cir.1985), cert. denied, 476 U.S. 1142 (1986). Second, a plaintiff may use the McDonnell Douglas scheme of shifting burdens applied in Title VII cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this scheme, once the plaintiff has established a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its employment decision. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Lovelace, 681 F.2d at 239. If the employer meets this burden, the plaintiff must then show that the employer's proffered reason was mere pretext and that age was the more likely reason for his dismissal.
In Lovelace, the court explained the sequence of analysis in "ruling upon an evidence sufficiency motion at the conclusion of all the evidence in a jury trial of an ADEA case" as follows: The first question is whether plaintiff's evidence may have carried the original production burden without need to invoke the McDonnell-Douglas presumption.... If this is the judicial assessment, inquiry of course ceases, no further production burdens are put in play, and the motion can be denied. If, on the other hand, the plaintiff's evidence fails even to support the unadmitted predicates of the presumption so that it may not be invoked to carry this original burden, inquiry similarly ends and the motion can be granted. Lovelace, 681 F.2d at 240.
The first Lovelace question is whether the employee can carry the original production burden without the need to invoke the McDonnell Douglas presumption. Lovelace, 681 F.2d at 240.
First, The employee may introduce evidence that the company reduced his salary to eliminate the cost of his comparatively high salary and benefits but showing that this higher salary was "primarily a function of age."
However, notwithstanding the employee’s assertions and the company’s admissions this evidence does not prove age discrimination. The Supreme Court has expressly held that an employer does not violate the ADEA "by acting on the basis of a factor, such as an employee's pension status or seniority [or salary], that is empirically correlated with age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-09 (1993). Even though age is often related to factors such as salary, it is "analytically distinct" from them. Id. at 611. For this reason, "an employer can take account of one while ignoring the other." Id. Moreover, "[w]hen the employer's decision is wholly motivated by factors other than age, ... [e]ven if the motivating factor is correlated with age," that decision is not contrary to the ADEA. Id. at 611. [FN1] Accordingly, even if the company reduced the salary to reduce its costs (or even fired The employee simply to reduce its salary costs) this is not evidence of age discrimination.
Notwithstanding two pre-Hazen Paper cases, Tuck v. Henkel Corp., 973 F.2d 371 (4th Cir.1992), cert. denied, 507 U.S. 918 (1993) and Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir.1987). Metz, which is directly contrary to Hazen Paper, is, as the Seventh Circuit itself has recognized, no longer good law. See Anderson v. Baxter Health Care Corp., 13 F.3d 1120, 1125-26 (7th Cir.1994). Similarly, to the extent that Tuck is contrary to Hazen Paper, it too is no longer good law.
The company is not obligated to provide the employee with a lower paying job–they could simply fire him. The employee has no contractual or other right to employment with the company. The company is entitled to fire him for a good reason, a poor reason, or no reason at all--as long as the company does not fire him for an illegal reason. If the company does not fire the employee for an illegal reason, like age discrimination, then it is not required to re-employ him in a lower paid position. Failure to do this may well constitute evidence of unkindness and poor management; it does not, however, constitute evidence of age discrimination.
The courts are so hostile to age discrimination cases (keep in mind that these cases are heard by judges with life-time appointments) that evidence that the employee may contends demonstrates a "pattern and practice of age discrimination." consisting of (1) the company's statements that there had been a "youth trend" in the "management team;" (2) testimony of an "unwritten policy of requiring employees to retire at age 65;" and (3) facts like that the former plant manager had been replaced when he was fifty-one by a twenty-nine year old man demonstrates little, or so says the courts. Statements that merely make observations of a generational change without suggesting that older employees ought to be replaced by more youthful ones are not sufficient to infer discrimination. See Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.) (employer's statement that "there comes a time when we have to make a way for younger people" created no inference of age bias), cert. denied, 513 U.S. 1058, 115 S.Ct. 666 (1994); Clay Printing, 955 F.2d at 942. In addition, The employee would have to show a causal nexus between his dismissal and any of this evidence. See Birbeck, 30 F.3d at 511-12; Rea v. Martin Marietta Corp., 29 F.3d 1450, 1450 (10th Cir.1994) (employee must show nexus between employer's comment and adverse action toward him). * * * * *
Thus, it is unlikely as just as the court found in Lovelace, that "[a]ssessed independently of the [McDonnell-Douglas ] presumption, we are satisfied that this circumstantial evidence does not suffice to support as a reasonable probability the inference that but for claim ant's age he would not have been" discharged. Lovelace, 681 F.2d at 243.
Having considered the employee's claim based simply on the direct and indirect evidence he might put forth, we move next to determine whether he is entitled to the presumption of discrimination under the McDonnell Douglas scheme.
Under the original McDonnell Douglas scheme, an employee alleging race discrimination could establish a prima facie case by showing: (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which an employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications. McDonnell Douglas, 411 U.S. at 802. Noting Justice Powell's admonition that the McDonnell Douglas test would vary in factually distinct Title VII contexts, id. at 802 n. 13, the Court has applied a modified version of the McDonnell Douglas scheme in the context of ADEA reduction in force cases. To establish a prima facie case, an ADEA plaintiff must show that (i) he is in the protected age class, (ii) he was discharged, (iii) at the time of his discharge, he was performing his job at a level that met his employer's legitimate expectations, and (iv) persons of his qualifications were retained in the same position or there was some other evidence that the employer did not treat age neutrally in deciding to dismiss plaintiff. [FN2] See Herold, 864 F.2d at 319; Sailor v. Hubbell, Inc., 4 F.3d 323, 326 (4th Cir.1993).
The Fourth Circuit has altered the language of this test's fourth prong to conform with the Supreme Court's recent decision in O'Connor v. Consolidated Coin Caterers Corp., 64 U.S.L.W. 4243, 4244 (April 1, 1996), which held that a retained or replacement worker need not be outside of the complainant's protected class in order for the complainant to invoke the McDonnell Douglas presumption.
In considering the fourth prong, the The employee must show that other persons with his qualifications have been retained in the same position as the employee without any reduction in salary. See Denio v. Asplundh Tree Expert Co. 92 F.3d 1177, 1996 WL 423125, **6 (4th Cir.(Va.) (C.A.4 (Va.),1996) (Unpublished)