Equal Employment Opportunity Commission v.  Warfield-Rohr Casket Company, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff-Appellant,
v. No. 03-1648 
WARFIELD-ROHR CASKET COMPANY,
INCORPORATED,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CA-01-2872-1-WMN)
Argued: February 25, 2004
Decided: April 8, 2004
Before WILKINS, Chief Judge, MICHAEL, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Reversed and remanded by published opinion. Chief Judge Wilkins
wrote the opinion, in which Judge Michael and Judge Hamilton
joined.
COUNSEL
ARGUED: Susan Lisabeth Starr, Appellate Services Division,
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., for Appellant. Charles Scott

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Hirsch, BALLARD, SPAHR, ANDREWS & INGERSOLL, L.L.P.,
Baltimore, Maryland, for Appellee. ON BRIEF: Eric S. Dreiband,
General Counsel, Vincent J. Blackwood, Assistant General Counsel,
Carolyn L. Wheeler, Acting Associate General Counsel, UNITED
STATES EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Appellant.
OPINION
WILKINS, Chief Judge:
The Equal Employment Opportunity Commission (EEOC) appeals
a district court order granting summary judgment to Warfield-Rohr
Casket Company, Incorporated (Warfield-Rohr) in the EEOC’s action
alleging that Warfield-Rohr’s termination of Frederick Kuehnl vio-
lated the Age Discrimination in Employment Act of 1967 (ADEA),
see 29 U.S.C.A. §§ 621-34 (West 1999 & Supp. 2003). Because the
record does not conclusively show that Warfield-Rohr would have
terminated Kuehnl absent any discriminatory motive, we reverse and
remand for further proceedings.
I.
Warfield-Rohr sells burial caskets to funeral homes in Maryland,
Virginia, and Delaware. As part of its business, the company installs
custom interiors in caskets—a process known as "trimming." In 1971,
Warfield-Rohr hired Kuehnl to trim caskets. At that time, approxi-
mately 13 people were working in the company’s casket trimming
room. In 1982, Kuehnl was promoted to foreman of the trimming
room, and he became a salaried employee. Following his promotion,
Kuehnl continued to trim caskets and also took on supervisory and
other duties.
Over the course of Kuehnl’s employment with Warfield-Rohr, the
workload in the trimming room and the need for employees there sub-
stantially declined. By the beginning of 1998, only two employees
besides Kuehnl were working in the trimming room. After one of
those employees resigned in January 1998, Kuehnl urged the owner
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of Warfield-Rohr, William Howard Ayres, to hire a replacement.
Ayres was reluctant to do so because he believed that two people
could handle the workload in the trimming room; nonetheless, he ulti-
mately followed Kuehnl’s recommendation and hired 33-year-old
Matthew Moore in March 1998.
Kuehnl claims that in April 2000, Ayres asked him how old he was
and when he was planning to retire; Kuehnl, who was then 56, noted
this event in his personal journal. Three weeks later, Ayres terminated
Kuehnl. Kuehnl alleges that he had the following conversation with
Ayres concerning his termination:
[Ayres] said to me, you’re fired. You’re getting too
f---ing old, you’re making too much f---ing money. Get the
f--- out.
I said, Howard, can’t I work less time and less pay to
keep my job until 65? He says, no, get the f--- out. I said,
why can’t you get rid of Matt [Moore] instead of myself?
He said to me, Matt could give him more years and he
needed a job. I said, I need a job, too.
J.A. 157. Later that day, Kuehnl made another entry in his journal
recounting the conversation; the entry does not mention Ayres’
alleged statement that Kuehnl was "getting too . . . old" and indicates
that Ayres told Kuehnl, "I can’t afford you." Id. at 32.
In contrast to Kuehnl’s version of events, Ayres denies making any
of the alleged statements regarding Kuehnl’s age, instead claiming
that he terminated Kuehnl because Warfield-Rohr could no longer
afford to pay his salary and because he had conflicts with his
coworkers. Before terminating Kuehnl, Ayres prepared written notes
"to include everything that I had to say to [Kuehnl] and make sure I
said them accurately to him." Id. at 50. These notes indicate that
Ayres was terminating Kuehnl because Ayres "[couldn’t] afford
[him]," and they reiterate Ayres’ belief that the trimming room was
"only a 2 man operation." Id. at 22-23. Ayres’ notes do not mention
any problems regarding Kuehnl’s relationships with his coworkers.
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Approximately ten months after his termination, Kuehnl filed a
charge with the EEOC claiming that Warfield-Rohr had discriminated
against him because of his age. The EEOC subsequently brought this
ADEA action against Warfield-Rohr. Following discovery, both sides
moved for summary judgment. In addressing Warfield-Rohr’s
motion, the district court recited evidence supporting the two nondis-
criminatory reasons offered by the company for terminating Kuehnl:
(1) that it could no longer afford to employ him due to financial diffi-
culties and (2) that he had conflicts with his coworkers and supervi-
sors. Based on this evidence, the district court determined that "no
rational fact finder could reasonably conclude that [Kuehnl] was ter-
minated because of his age." Id. at 19. Accordingly, the district court
granted summary judgment to Warfield-Rohr.
II.
We review the grant of summary judgment de novo, viewing the
disputed facts in the light most favorable to the EEOC. See Edelman
v. Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002). Summary
judgment is appropriate "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c).
As is relevant here, the ADEA makes it unlawful for an employer
"to discharge any individual . . . because of such individual’s age."
29 U.S.C.A. § 623(a)(1); see Gen. Dynamics Land Sys., Inc. v. Cline,
124 S. Ct. 1236, 1243 (2004) (explaining that the ADEA "protect[s]
a relatively old worker from discrimination that works to the advan-
tage of the relatively young"). An ADEA claim may be established
through two alternative methods of proof: (1) a "mixed-motive"
framework, requiring evidence that the employee’s age motivated the
employer’s adverse decision, or (2) a "pretext" framework identical
to the McDonnell Douglas burden-shifting analysis used in Title VII
cases. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 284-85 (4th Cir. 2004) (en banc). Here, the district court applied
the mixed-motive framework in analyzing Warfield-Rohr’s summary
judgment motion, and the EEOC relies on that framework in this
appeal.
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Application of the mixed-motive framework requires, at most, "evi-
dence of conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the contested employ-
ment decision." Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995),
abrogated by Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003).1
Viewing the present facts in the light most favorable to the EEOC,
Ayres’ alleged statements to Kuehnl that he was "getting too . . . old"
and that Moore—a much younger employee—"could give [Ayres]
more years" clearly reflect Ayres’ reliance on Kuehnl’s age as one of
the reasons for his termination. Warfield-Rohr argues, however, that
application of the mixed-motive framework is improper because the
evidence that the EEOC relies on to support this method of proof—
Kuehnl’s testimony regarding his conversation with Ayres—is uncor-
roborated. But aside from the fact that Kuehnl’s testimony is partially
corroborated by his contemporaneous journal entries, there is no
requirement that an employee’s testimony be corroborated in order to
apply the mixed-motive framework. See, e.g., Rose v. New York City
Bd. of Educ., 257 F.3d 156, 162 (2d Cir. 2001) (holding that an
ADEA plaintiff was entitled to a mixed-motive instruction based on
her uncorroborated testimony that her supervisor, who ultimately rec-
ommended that she be demoted, had twice threatened to replace her
with someone "younger and cheaper" (internal quotation marks omit-
ted)). Lack of corroboration relates only to the credibility and weight
of the evidence, which are issues for the jury, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Thus, the mixed-motive
framework is applicable here.
1In Desert Palace, the Supreme Court held—contrary to Fuller and
other circuit decisions—that direct evidence of discrimination is not
required in order to apply the mixed-motive framework in Title VII
cases. See Desert Palace, 123 S. Ct. at 2155. Rather, the Court held that
a Title VII plaintiff could also rely on circumstantial evidence to obtain
a mixed-motive instruction. See id. at 2153-55. We have previously
assumed, without deciding, that direct evidence is still a prerequisite for
a mixed-motive analysis in ADEA cases. See Hill, 354 F.3d at 285 n.2;
see also Mereish v. Walker, 359 F.3d 330, 339-40 (4th Cir. 2004) (indi-
cating doubt that Desert Palace applies to ADEA claims). We are not
called on to decide that issue because the EEOC has presented direct evi-
dence of discrimination—namely, Kuehnl’s testimony and journal entries
regarding Ayres’ alleged discriminatory statements.
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Under the mixed-motive framework, the EEOC "need not demon-
strate that [Kuehnl’s age] was the sole motivating factor to prevail, so
long as it was a motivating factor." Hill, 354 F.3d at 284. In other
words, "it is sufficient for the [EEOC] to demonstrate that [Warfield-
Rohr] was motivated to take the adverse employment action by both
permissible and forbidden reasons." Id. If the EEOC makes this show-
ing, Warfield-Rohr can nonetheless avoid liability by proving that it
would have terminated Kuehnl even in the absence of a discrimina-
tory motive. See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45
(1989) (plurality opinion); id. at 276-77 (O’Connor, J., concurring in
the judgment).2
There is no question that Ayres’ alleged statements to Kuehnl that
he was "getting too . . . old" and that Ayres was retaining Moore
because he "could give [Ayres] more years" would support a jury
finding that Kuehnl’s age was a motivating factor in Warfield-Rohr’s
decision to terminate him. Thus, Warfield-Rohr is entitled to sum-
mary judgment only if the record demonstrates as a matter of law that
the company would have terminated Kuehnl even if it had not consid-
ered his age.
2As part of the Civil Rights Act of 1991 ("1991 Act"), Congress elimi-
nated an employer’s ability to avoid liability in certain Title VII cases by
showing that it would have made the same decision in the absence of a
discriminatory motive. Under the 1991 Act, liability is established once
the employee proves that a protected trait was a motivating factor for the
employer’s decision, see 42 U.S.C.A. § 2000e-2(m) (West 2003); a
showing by the employer that it would have made the same decision
absent a discriminatory motive limits only the remedies available to the
employee, see 42 U.S.C.A. § 2000e-5(g)(2)(B) (West 2003). However,
Congress has not amended the ADEA in a similar fashion. See Mereish
v. Walker, 359 F.3d 330, 340 (4th Cir. 2004). Thus, ADEA mixed-
motive cases remain subject to the burden-shifting rules of Price Water-
house. See Hill, 354 F.3d at 285 n.2 (assuming that the 1991 Act does
not apply to the ADEA and therefore that the Price Waterhouse rules still
govern ADEA claims); see also Kubicko v. Ogden Logistics Servs., 181
F.3d 544, 552 n.7 (4th Cir. 1999) (holding that the Price Waterhouse
framework still controls Title VII retaliation claims because the 1991 Act
does not expressly include such claims).
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Warfield-Rohr argues, and the district court agreed, that the com-
pany would have terminated Kuehnl regardless of his age because (1)
it could no longer afford to pay his salary and (2) he had a history of
conflicts with his coworkers. Warfield-Rohr’s claim that it could no
longer afford Kuehnl’s salary is generally supported by evidence that
Warfield-Rohr’s sales and profits declined sharply during the years
immediately preceding Kuehnl’s termination. And, even under
Kuehnl’s version of the facts, Ayres told Kuehnl at the time of his ter-
mination that the company could not afford him because he was
"making too much . . . money." During that same conversation, how-
ever, Kuehnl offered to reduce his hours and pay, yet Ayres summa-
rily rejected that proposal. Further, Kuehnl claims that when he
inquired why Ayres was not terminating Moore instead, Ayers
responded that Moore "could give him more years." Based on this
evidence, a jury could reasonably conclude that, notwithstanding
Warfield-Rohr’s financial problems, the company would not have ter-
minated Kuehnl if his age had not been a consideration.3
Warfield-Rohr’s assertion that Kuehnl had conflicts with his
coworkers is supported by testimony from Ayres and various
Warfield-Rohr employees. This testimony indicates that at least one
former employee in the trimming room resigned due to conflicts with
3Warfield-Rohr further argues that Kuehnl’s termination was justified
because, despite Ayres’ contrary view, Kuehnl had previously urged him
to hire a third employee for the trimming room. However, a jury could
reasonably conclude that, regardless of Kuehnl’s arguably ill-advised
recommendation to hire a third employee, Warfield-Rohr’s ultimate deci-
sion to terminate Kuehnl rather than Moore was based on Kuehnl’s age.
And, although Kuehnl had previously insisted that he needed two other
employees to run the trimming room, it is not clear that Kuehnl still
maintained this view two years later when he was terminated—
particularly since the workload had continued to shrink. Indeed, Kuehnl
suggested to Ayres that he terminate Moore instead, indicating that
Kuehnl was willing to work with only one other employee rather than
lose his job.
Warfield-Rohr also contends that Kuehnl’s termination was justified
because he was spending the majority of his time on tasks other than cas-
ket trimming. However, as Warfield-Rohr acknowledged at oral argu-
ment, disputed issues of fact exist regarding whether Kuehnl was
legitimately occupied with other assigned tasks.
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Kuehnl and that the two other remaining employees considered
resigning for similar reasons. However, Ayres’ notes—which purport-
edly include all the reasons for Kuehnl’s termination—nowhere men-
tion coworker conflicts. Nor does it appear that Ayres raised that issue
with Kuehnl at the time of his termination. In addition, although
Warfield-Rohr portrays Kuehnl’s inability to get along with his
coworkers as a serious problem that had existed for several years
prior to his termination, the company apparently never took any sig-
nificant action to address this problem before terminating Kuehnl.4
Thus, despite evidence that Kuehnl did not get along with his
coworkers, a jury could reasonably conclude that Warfield-Rohr
would not have terminated Kuehnl if his age had not been a factor.
III.
In sum, although the record contains evidence of plausible, nondis-
criminatory reasons that might have supported Warfield-Rohr’s deci-
sion to terminate Kuehnl, that evidence does not conclusively show
that the company would have terminated him if his age had not been
considered. Accordingly, we reverse the order of the district court
granting summary judgment to Warfield-Rohr and remand for further
proceedings.
REVERSED AND REMANDED
4Based on the record materials before us, it appears that the only action
Warfield-Rohr management took in connection with Kuehnl’s conflicts
with his coworkers was a single statement from one of the company’s
vice-presidents instructing Kuehnl "not to ride [his coworkers], just not
be as hard on them." J.A. 173.
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