28 Fair Empl - Prac.cas. 1473, 29 Empl. Prac. Dec. P 32,706 Louis L. Anderson, Jr. v. Savage Laboratories, Inc., A Corporation, 675 F.2d 1221, 11th Cir. (1982)
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Scribd Government Docs28 Fair Empl - Prac.cas. 1473, 29 Empl. Prac. Dec. P 32,706 Louis L. Anderson, Jr. v. Savage Laboratories, Inc., A Corporation, 675 F.2d 1221, 11th Cir. (1982)
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Scribd Government Docs675 F.
2d 1221
28 Fair Empl.Prac.Cas. 1473,
29 Empl. Prac. Dec. P 32,706
Louis L. ANDERSON, Jr., Plaintiff-Appellant,
v.
SAVAGE LABORATORIES, INC., a Corporation, DefendantAppellee.
No. 81-7392.
United States Court of Appeals,
Eleventh Circuit.
May 13, 1982.
Alvin T. Prestwood, Claude P. Rosser, Jr., Montgomery, Ala., for
plaintiff-appellant.
Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Ala., Townley &
Updike, Kenneth McCulloch, New York City, for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Alabama.
Before RONEY and KRAVITCH, Circuit Judges, and PITTMAN * ,
district judge.
KRAVITCH, Circuit Judge:
In this age discrimination case filed pursuant to the Age Discrimination in
Employment Act, 29 U.S.C. 621-34, the district court granted summary
judgment in favor of appellee-employer. The court held that appellantemployee failed to present evidence establishing he was treated differently on
account of age from other employees who violated the same work rule. We
affirm.
From April, 1964 to October, 1979, appellant Anderson was employed by
Savage Laboratories, a sales organization engaged in the marketing and sale of
pharmaceutical products, as a commissioned sales representative. His
responsibilities were to make sales calls on health care professionals throughout
parts of Alabama and Florida. Appellant resided in Montgomery, Alabama but
spent much of his time on the road.
3
The incident precipitating appellant's termination occurred on September 13,
1979. On that day Mr. Folkenflik, appellant's supervisor, was in Montgomery,
Alabama conducting interviews for a potential replacement for appellant.
Savage assertedly had become dissatisfied with appellant's job performance but
had not yet decided to terminate him. Appellant claims, however, that Savage
was seeking to replace him because he was over the age of forty. Folkenflik
chose to interview applicants in Montgomery on September 13 in order to avoid
the possibility of meeting appellant, who had previously filed an itinerary
indicating that on September 13 he would be in the Thomasville-Linden area of
Alabama, approximately 125 miles from Montgomery. While in Montgomery,
however, Folkenflik saw Anderson purely by chance; Anderson apparently did
not see Folkenflik. In his Weekly Call Report and Summary Sheet for the week
ending September 14, 1979, appellant represented that on September 13, he
visited ten specified customers in Thomasville and Linden, Alabama. When
confronted about the discrepancy between his weekly work reports and his
being seen in Montgomery on September 13, appellant did not deny the
falsification of the reports. Pursuant to its policy of terminating employees who
falsify work reports, Savage asked appellant to resign, and when he refused to
do so, terminated him.
Appellant filed this action in the United States District Court for the Middle
District of Alabama, alleging that he was terminated in violation of the Age
Discrimination in Employment Act (ADEA). Savage subsequently filed a
motion for summary judgment, arguing that appellant's admitted conduct
showed that he was discharged for good cause, negating his claim of age
discrimination. In support of its motion, Savage proffered affidavits showing
that it had applied without exception its policy of discharging employees who
falsify reports or permitting those employees to resign.1 Appellant presented no
evidence to the contrary. The district court granted summary judgment for
Savage, concluding, inter alia, that there was no evidence appellant was treated
differently from others caught falsifying records.
Appellant contends the district court erred in granting Savage's motion for
summary judgment because appellee's evidence that appellant was terminated
for cause does not operate to prevent appellant from proving that age was
nonetheless a determinative factor in the termination decision. To make out a
prima facie case of age discrimination, a plaintiff must demonstrate "facts
sufficient for a reasonable jury to infer that discrimination has occurred."
McCorstin v. United States Steel Corp., 621 F.2d 749, 754 (5th Cir. 1980).2
Such an inference is generally established by proving that the plaintiff 1)
belongs to the statutorily protected age group; 2) was qualified for the job; 3)
was discharged; and 4) was replaced by a person outside the protected group."
Harpring v. Continental Oil Co., 628 F.2d 406, 408 (5th Cir. 1980), cert.
denied, --- U.S. ----, 102 S.Ct. 100, 70 L.Ed.2d 90 (1981). See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Of course, this modification of the McDonnell Douglas test is not "the alpha
and omega of possible tests in the age discrimination context." McCorstin v.
United States Steel Corp., supra at 753. " (T)he specification above of the
prima facie proof required ... is not necessarily applicable in every respect to
differing factual situations." McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Regardless of the specific
method of proof utilized, once a prima facie case has been established, the
employer has the burden of producing evidence tending to show that the
employee's discharge was for a legitimate, nondiscriminatory reason such as
good cause. 3 If the employer does so, the plaintiff, who at all times retains the
burden of persuasion, must show by a preponderance of the evidence that the
employer's asserted legitimate reason for the discharge is merely pretextual.
E.g., Harpring v. Continental Oil Co., supra at 408-09; McCorstin v. United
States Steel Corp., supra at 753-54; Marshall v. Westinghouse Electric Corp.,
576 F.2d 588, 590-92 (5th Cir. 1978).
6
In satisfying the ultimate burden of proving that the discharge was on account
of age, a plaintiff need not establish that age was the sole reason for his
termination, but only that age was a determinative factor in the employer's
decision to fire him. Haring v. CPC International, Inc., 664 F.2d 1234, 1239-40
(5th Cir. 1981). In other words, a plaintiff must prove by a preponderance of the
evidence that age made a difference in the employer's decision to terminate
him. Where the discharge was assertedly for the violation of a work rule, the
former Fifth Circuit has held in the context of claims arising under Title VII of
the Civil Rights Act that a plaintiff, in order to prove the employer's
justification to be pretextual, must show either that he did not violate the work
rule or that, if he did, other employees not within the protected class who
engaged in similar acts were not similarly treated.4 Harris v. Plastics Mfg. Co.,
617 F.2d 438 (5th Cir. 1980) (appellants discharged for fighting and clocking
out early failed to prove racial discrimination where they did not present
evidence that they had been treated differently than white employees violating
the same rules); Green v. Armstrong Rubber Co., 612 F.2d 967 (5th Cir.), cert.
denied, 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980) (appellant
discharged for fighting failed to establish racial discrimination where he did not
show that he had been treated differently than white employees violating the
same rule). See Fong v. American Airlines, Inc., 626 F.2d 759 (9th Cir. 1980)
(appellant discharged for taking reusable food item from an airplane failed to
prove racial discrimination where record showed that the rule was enforced
independent of race). Because Title VII and ADEA share as a common purpose
the elimination of employment discrimination and because the method for
proving discriminatory treatment under both acts is similar, we consider those
decisions arising under Title VII applying the "work rule" test as precedent for
those arising under ADEA. See Coke v. General Adjustment Bureau, Inc., 640
F.2d 584 (5th Cir. 1981) (en banc) (Title VII cases involving the 180 day filing
requirement serve as precedent for cases under ADEA involving same issue).
We therefore hold the "work rule" test applicable in ADEA cases.
7
Here, appellant concedes that he falsified work records and does not deny that
Savage has uniformly enforced its policy of discharging employees caught
falsifying records regardless of their age. Appellant has introduced no evidence
to show that he was treated differently from others discharged for falsifying
records because of his age. Therefore, the district court properly granted
summary judgment for appellee.
AFFIRMED.
The Honorable Virgil Pittman, U.S. District Judge for the Southern District of
Alabama, sitting by designation
The affidavit of Kenneth Dunlap, vice-president of Savage Laboratories, states
that five Savage sales representatives other than appellant have been caught
submitting falsified records and that on each occasion the employee was
discharged or asked to resign. The five discharged employees were 26, 29, 37,
37 and 42 years old, respectively, when their employment was terminated
The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc), adopted as precedent the decisions of the former Fifth Circuit
29 U.S.C. 623(f)(3) states:
(f) it shall not be unlawful for an employer, employment agency or labor
organization(3) to discharge or otherwise discipline an individual for good cause.
The court in Green v. Armstrong Rubber Co., supra, suggested that the "work
rule" test operates to define a plaintiff's prima facie case for proving
discrimination where the defendant asserts that the plaintiff was discharged for
violating a work rule. Upon more careful consideration, we conclude that the
"work rule" test does not affect a plaintiff's prima facie case but rather describes
the burden of proving that the defendant's justification for discharging the
plaintiff for violating a work rule was merely pretextual
