Filed: Apr. 15, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1944 OTIS E. HILL, Plaintiff – Appellant, v. SOUTHEASTERN FREIGHT LINES, INC., Defendant – Appellee, Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:11-cv-00462-JAB) Argued: March 28, 2013 Decided: April 15, 2013 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Norman B. Smith,
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1944 OTIS E. HILL, Plaintiff – Appellant, v. SOUTHEASTERN FREIGHT LINES, INC., Defendant – Appellee, Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:11-cv-00462-JAB) Argued: March 28, 2013 Decided: April 15, 2013 Before GREGORY, DUNCAN, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. ARGUED: Norman B. Smith, S..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1944
OTIS E. HILL,
Plaintiff – Appellant,
v.
SOUTHEASTERN FREIGHT LINES, INC.,
Defendant – Appellee,
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
District Judge. (1:11-cv-00462-JAB)
Argued: March 28, 2013 Decided: April 15, 2013
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Norman B. Smith, SMITH, JAMES, ROWLETT & COHEN, LLP,
Greensboro, North Carolina, for Appellant. William Lee Duda,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Columbia, South
Carolina, for Appellee. ON BRIEF: L. Bakari Middleton,
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, PC, Columbia, South
Carolina; Sarah H. Roane, OGLETREE, DEAKINS, NASH, SMOAK &
STEWART, PC, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Otis Hill (“Hill”) appeals the district court’s dismissal
with prejudice of his employment discrimination claims against
Southeastern Freight Lines (“SEFL”). As relevant here, the
district court granted SEFL’s motion for summary judgment after
finding that Hill failed to present a prima facie case of age
discrimination. 1 For the reasons that follow, we affirm.
I.
Hill was a full-time pick-up and delivery driver for SEFL.
As the title suggests, in that capacity Hill was expected to
pick up and deliver freight. Such drivers were graded on the
basis of the so-called “Tommy Thompson System,” which took into
consideration such factors as cargo loads, distance driven and
stops made. Apparently some routes yielded lower numbers for
their drivers than others.
Although Hill maintains that he was an excellent employee,
the evidence of record documents a history of performance
1
Hill also brought claims based on disability
discrimination and retaliation, but he conceded below that he
could not prove the retaliation claim, and has not challenged
the district court’s dismissal with prejudice of his disability
discrimination claim on appeal. Consequently, only the age
discrimination claim is at issue.
2
issues. 2 Specifically, Hill acknowledges signing a notice on
March 3, 2010, informing him that “this is a final communication
concerning your performance. Any future violation of company
policy, practices, safety rules or guidelines will result in
additional disciplinary action, which will include termination
of your employment.” J.A. 82; 53-54. 3 On May 21, 2010, after a
customer complained of Hill’s tardiness, and after Hill took an
excessive amount of time to complete his runs, SEFL’s Terminal
Manager gave Hill a choice: accept a line haul driver position
which would require driving trailers between two points at night
with no pickups or deliveries, or resign.
Hill produced medical documentation of vision problems
caused by glaucoma, which would make it difficult for him to
drive at night. He was subsequently terminated, and filed the
employment discrimination claims below.
2
We feel compelled to note that our consideration of this
appeal has not been aided by the fact that Hill’s citations to
the record are consistently inaccurate, and referenced documents
are therefore difficult, if not impossible, to find. For
example, Hill asserts that “[t]he only comprehensive employment
evaluation done by defendant showed that plaintiff was excellent
and without criticism in all graded categories of performance.”
Appellant’s Br. at 5 (citing A. 126). However, we were unable
to locate such a document in the record.
3
References to “J.A.” indicate the joint appendix filed by
the parties in this case. Hill uses the shorthand “A.” to refer
to the record; where relevant we include these, although, as
noted, they do not correspond to pages in the J.A.
3
The district court found that Hill failed to meet what it
identified as the third and fourth prongs of the test for
establishing a prima facie case of age discrimination: Hill
could not show that he was performing his job at a satisfactory
level, or, even if he were, that his position either remained
open or that he was replaced by a substantially younger
individual. This appeal followed.
II.
The Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., forbids an employer from taking an adverse
employment action against an employee “because of” the
employee’s age. 29 U.S.C. § 623(a)(1); Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en
banc). Under the ADEA, a plaintiff “must prove by a
preponderance of the evidence (which may be direct or
circumstantial), that age was the ‘but-for’ cause of the
challenged employer decision.” Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 177-78 (2009). Thus, to survive summary judgment,
Hill must show that there is a genuine issue of material fact
that SEFL dismissed him from his job as a pick-up and delivery
(“P&D”) driver due to his age. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We review de novo the district
4
court’s grant of summary judgment. Med. Waste Assocs. Ltd.
P’ship v. Baltimore, 966 F.2d 148, 150 (4th Cir. 1992).
Because Hill presents no direct evidence of an
impermissible discriminatory motive based on age, we proceed
under the familiar McDonnell Douglas burden-shifting
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); Stokes v. Westinghouse Savannah River Co.,
206 F.3d 420
(4th Cir. 2000) (applying the McDonnell Douglas framework in the
context of age discrimination). Hill must first establish a
prima facie case, the elements of which vary depending on the
nature of the claim. Dugan v. Albemarle Cnty. Sch. Bd.,
293
F.3d 716, 720 n.1 (4th Cir. 2002). In the firing context
relevant here, Hill must show that: (1) he was a member of the
protected class--that is, older than 40; (2) he was discharged;
(3) he was qualified for the job and met SEFL’s legitimate
expectations; and (4) his position remained open or was filled
by a similarly qualified individual who was substantially
younger. See Warch v. Ohio Cas. Ins. Co.,
435 F.3d 510, 513
(4th Cir. 2006). 4
4
If Hill were to succeed in making out a prima facie case,
that would create a “presumption of discrimination,” and the
burden of production would then shift to SEFL to set forth “a
legitimate, non-discriminatory reason for its adverse employment
decision.” Laber v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006).
If SEFL carried that burden, the presumption would disappear and
Hill would have to show that SEFL’s articulated reason was a
(Continued)
5
The district court premised its grant of summary judgment
in SEFL’s favor on Hill’s failure to establish a prima facie
case of age discrimination. It is undisputed that, at 60 years
of age, Hill was a member of the protected class, and that he
was discharged from employment. Thus, only the third and fourth
elements are presently contested.
A.
As to the third prong, “a plaintiff must show by a
preponderance of the evidence that he met the employer’s
legitimate job expectations in order to prove his prima facie
case, [and] the employer may counter with evidence defining the
expectations as well as evidence that the employee was not
meeting those expectations.” Warch, 435 F.3d at 516. We have
qualified this requirement by clarifying that the plaintiff’s
burden in this regard is not an onerous one. The third prong
requires only that the plaintiff present evidence to create a
question of fact that the employer’s “proffered ‘expectation’ is
not, in fact, legitimate at all.” Id. at 517.
Hill asserts that the record is replete with evidence that
he “was qualified for the position of local truck driver, and
pretext for age discrimination. Id. Because we find Hill has
failed to establish a prima facie case, we need not reach the
issue of pretext.
6
that he was performing his duties at a level that met
defendant’s legitimate expectations.” Appellant’s Br. at 15
(citing A. 126). As we have noted, however, we are unable to
find in the record the evaluation that supports Hill’s claim.
Hill further contends that in relying on personnel assessments
going back some period, “the defendant violated its own policy
of clearing an employee of all write-ups over one year
old.” Id. at 17 (citing A. 21). We have likewise been
unsuccessful in locating evidence of such a policy. Hill
contends that the “Tommy Thompson system,” which SEFL uses to
measure productivity, has become “largely discredited and
discarded by major motor carriers,” id. at 16 (citing A. 117),
but the only evidence in the record we could find to support
this is the same bald assertion in his own affidavit.
Although Hill is correct that his burden with respect to
the third prong is not onerous, we still require evidence other
than his own self-serving conclusions and the impressions of one
of his coworkers that he met SEFL’s legitimate
expectations. 5 See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir.
5
Hill proffers the affidavit of Michael Brooks, a 38-year-
old P&D driver for SEFL who attests that Hill “always got the
job done” and was “written up by the employer unfairly and
inconsistently” in comparison to several other younger drivers,
including Brooks himself. J.A. 167-68. Notably, these portions
of Brooks’s affidavit were stricken by the district court
because they were not based on the affiant’s personal knowledge
(Continued)
7
1980) (explaining that because it is solely the perception of
the decision maker with which we are concerned, the plaintiff’s
“perception of himself . . . is not relevant”); Conkwright v.
Westinghouse Elec. Corp., 933 F.2d 231, 235 (4th Cir. 1991)
(explaining that whether a plaintiff’s coworkers, or other
individuals who were not the decision maker, “may have thought
[the plaintiff] did a good job, or that he did not ‘deserve’ [to
be discharged], is close to irrelevant”).
B.
Despite Hill’s reliance on evidence that the record does
not appear to contain to establish prong three--that he was
qualified and meeting SEFL’s legitimate expectations--in an
abundance of caution we ground our decision to affirm in Hill’s
acknowledged failure to produce evidence as to prong four--that
his position remained open or was filled by someone younger.
In lieu of evidence, Hill argues that the fact that his
position was filled by a similarly qualified, substantially
younger individual is a matter of common sense. Hill argues
that “[i]t is inconceivable that after plaintiff’s discharge
defendant simply abandoned his route and the customers served by
as required for consideration under Fed. R. Civ. P. 56(c). See
Hill v. Se. Freight Lines, 877 F. Supp. 2d 375, 382 (M.D.N.C.
2012). Hill does not protest that ruling on appeal.
8
him in light of their importance to defendant’s business. By
necessity, plaintiff’s position had to be filled by someone
else, thereby satisfying the fourth prima facie case component.”
Appellant’s Br. at 20. We must decline to take such a leap of
faith. Even if we could assume, and we cannot, that SEFL has
filled Hill’s position, he offers no evidence whatsoever to even
suggest that his replacement is substantially younger.
Hill also asserts that there were several open dock worker
positions at the time of his discharge, and that he “easily
could have filled any of these, which would likely have taken
him out to time for retirement.” Appellant’s Br. at 20 (citing
A. 125). However, the only indication in the record of any open
positions is found in Hill’s own testimony, which does not
appear to be grounded in personal knowledge. Hill simply has
offered no evidence relevant to this fourth element,
underscoring the lack of connection between SEFL’s adverse
employment decision and any implication, however remote, of age
discrimination.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
9
