Otis Hill v. Southeastern Freight Lines, No. 12-1944 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1944 OTIS E. HILL, Plaintiff Appellant, v. SOUTHEASTERN FREIGHT LINES, INC., Defendant Appellee,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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 1 a history of performance 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 establishing the a third prima and facie fourth case of prongs age of the test discrimination: for 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 individual. he was replaced by a substantially younger 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 employee s age. against an employee because of the 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 preponderance the of circumstantial), ADEA, the that a plaintiff evidence age was challenged employer decision. 557 U.S. 167, 177-78 (2009). (which the must may prove be but-for by direct cause of a or the Gross v. FBL Fin. Servs., Inc., 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 review U.S. 317, 322 (1986). We 4 de novo the district court s grant of summary Med. judgment. Waste Assocs. Ltd. P ship v. Baltimore, 966 F.2d 148, 150 (4th Cir. 1992). Because Hill presents impermissible discriminatory under familiar the framework. McDonnell no direct motive based McDonnell Douglas evidence on age, Douglas Corp. v. of we an proceed burden-shifting 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. F.3d 716, 720 n.1 Dugan v. Albemarle Cnty. Sch. Bd., 293 (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 younger. qualified individual who was substantially 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 preponderance the of third prong, a the evidence plaintiff that he must met the show by a 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 meeting those expectations. that the employee Warch, 435 F.3d at 516. was not 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 defendant s performing legitimate (citing A. 126). his duties at expectations. a level Appellant s that Br. met at 15 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 old. an employee Id. at 17 unsuccessful in locating of (citing all A. write-ups 21). evidence We of over have such a one year likewise been 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 expectations. 5 that he met SEFL s legitimate See Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 5 Hill proffers the affidavit of Michael Brooks, a 38-yearold 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. (explaining that Corp., 933 whether a F.2d 231, plaintiff s 235 (4th Cir. coworkers, 1991) 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 contain to and qualified to establish meeting SEFL s prong legitimate three--that he expectations--in was 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 qualified, substantially younger individual is a matter of common sense. Hill argues that was [i]t is filled by a inconceivable similarly 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. necessity, plaintiff s position had to be filled by By someone else, thereby satisfying the fourth prima facie case component. Appellant s Br. at 20. faith. We must decline to take such a leap of 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, appear to be grounded in personal knowledge. offered no underscoring evidence the lack relevant of to connection this between which does not Hill simply has fourth SEFL s element, 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
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