Larry Alan Warch v. OHIO CASUALTY INSURANCE COMPANY, No. 04-2354 Defendant-Appellee

Filed: February 3, 2006
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2354
(CA-02-3715-8-RDB)
LARRY ALAN WARCH,
Plaintiff - Appellant,
versus
OHIO CASUALTY INSURANCE COMPANY,
Defendant - Appellee,
and
OHIO CASUALTY GROUP,
Defendant.
O R D E R
The court amends its opinion filed January 30, 2006, as
follows:
On Page 8, in the last paragraph, line 3, "prima face"
should read "prima facie case."
For the Court
/s/ Patricia S. Connor
____________________________
Clerk

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 LARRY ALAN WARCH,
Plaintiff-Appellant,
v.
OHIO CASUALTY INSURANCE COMPANY, No. 04-2354 Defendant-Appellee,
and
OHIO CASUALTY GROUP,
Defendant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Richard D. Bennett, District Judge.
(CA-02-3715-8-RDB)
Argued: October 25, 2005
Decided: January 30, 2006
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Motz and Judge Shedd joined.
COUNSEL
ARGUED: Orva Lee Boothby, Washington, D.C., for Appellant. J.
Alan Lips, TAFT, STETTINIUS & HOLLISTER, Cincinnati, Ohio,
for Appellee. ON BRIEF: Devin C. Dolive, TAFT, STETTINIUS &

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HOLLISTER, Cincinnati, Ohio; Niccolò N. Donzella, BAXTER,
BAKER, SIDLE, CONN & JONES, P.A., Baltimore, Maryland, for
Appellee.
OPINION
TRAXLER, Circuit Judge:
Larry Alan Warch brought this action against his former employer,
The Ohio Casualty Insurance Company ("OCIC"), alleging that OCIC
unlawfully discriminated against him based on his age when it fired
him. The district court granted OCIC’s motion for summary judg-
ment. For the reasons discussed below, we affirm.
I.
OCIC fired Warch from his position as fraud investigator on April
26, 2002, when he was age 59. Warch’s termination should not have
been a surprise. Since at least 2000, Warch’s supervisors had been
giving him negative feedback. On March 1, 2000, the director of
Warch’s unit, Bill Johansen, sent Warch a letter following up on "sev-
eral issues pertaining to [Warch’s] performance and efforts." J.A. 274.
The letter explained how one of Warch’s supervisors had discussed
company procedures with him "on several occasions" and how there
continued to be "shortcomings" that "adversely impact[ed his] per-
sonal performance and that of the unit." J.A. 274. Johansen advised
Warch to "adopt immediately all procedures and guidelines." J.A.
274.
Shortly thereafter, OCIC changed its internal management struc-
ture, but Warch’s performance continued to be a source of concern,
even under new supervision. The new head of Warch’s unit, Bruce
Montgomery, met with Warch and advised him that the files he had
turned in "lacked any investigative effort," that he "had little or no
communication with the claims reps assigned to the case," that he was
not leaving his home to conduct field assignments, that he provided
"inappropriate" responses to the claims staff that created complaints,
and that he needed to "listen more carefully." J.A. 110. Two months
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later, Warch received a "Formal Counseling Form" stating that he had
failed to conduct thorough, concise, and proper investigations, made
recommendations to pay claims without gathering all the facts and
using all available tools, and failed to "communicate with claims."
J.A. 279. OCIC informed Warch that he would be placed on probation
if he failed to improve.
Improvement did not come and, at the end of 2001, OCIC put
Warch on probation for six months due to his unacceptable work
product. OCIC required Warch to take corrective action and informed
him that he would be terminated if he failed to improve. Although
Warch received positive feedback in some areas on his 2001
employee evaluation form, the form also stated that he was "not effec-
tive," had failed to produce "the product . . . expected of him," was
having a "difficult time with the changes that have been made," and
needed to "address his work performance and his interpretation of
policy provisions." J.A. 286-87. Warch apparently recognized that his
performance was problematic, offering family and personal problems
as "an excuse for [his] performance." J.A. 289.
OCIC extended Warch’s probation. In response to a question from
Warch about details of OCIC’s concerns, Montgomery explained to
Warch:
We have identified the problems to you many times and
each time you state that you understand and then we receive
files with the same problems. I feel at this point that we
have been more than fair in identifying the problems,
explaining what is needed to correct them and the rest will
be up to you. . . .
[T]he problems that we see in your work . . . are across the
board. You must improve these issues during this extended
probationary period.
J.A. 291. OCIC terminated Warch on April 26, 2002, while he was
still on probation.
Warch filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") in July 2002. Shortly thereafter, the EEOC
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issued Warch a right to sue letter and Warch commenced this action.
Warch sued under the Age Discrimination in Employment Act
("ADEA"), which forbids employers from "discharg[ing] any individ-
ual . . . because of such individual’s age." 29 U.S.C.A. § 623(a)(1)
(West 1999). Warch pursues his claim under both the "pretext"
approach and the "mixed motive" approach. Specifically, he asserts
that OCIC’s proffered reason for terminating him was pretext for ille-
gal age discrimination and that, even if OCIC had a non-
discriminatory reason to terminate him, age was a motivating factor
in his termination.
The district court granted summary judgment to OCIC. On the pre-
text approach, the district court held that Warch failed to create any
genuine dispute that he was meeting his employer’s legitimate job
expectations or that he was replaced by a substantially younger
employee. On the mixed motive approach, the district court ruled that
Warch failed to create any genuine dispute, whether based on direct
or circumstantial evidence, that age was a motivating factor in his ter-
mination.
II.
We review the grant of summary judgment de novo. See Higgins
v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988). Summary judgment is appropriate "if the pleadings, deposi-
tions, 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); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). We construe the evidence in the light most
favorable to Warch and draw all reasonable inferences in his favor.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
III.
Warch’s claim under the "pretext" approach derives from McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and its
progeny. McDonnell Douglas established a burden-shifting frame-
work for a plaintiff to demonstrate that the purported reason for an
adverse employment action, such as termination, was actually a pre-
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text for unlawful discrimination. See Mereish v. Walker, 359 F.3d
330, 334 (4th Cir. 2004). Under this framework, a plaintiff must first
establish a prima facie case of unlawful discrimination by a prepon-
derance of the evidence. See id.
Generally speaking, to establish a prima facie case of unlawful age
discrimination, Warch must show that (1) he is a member of the pro-
tected class; (2) he was qualified for the job and met OCIC’s legiti-
mate expectations; (3) he was discharged despite his qualifications
and performance; and (4) following his discharge, he was replaced by
a substantially younger individual with comparable qualifications. See
O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-
13 (1996); Causey v. Balog, 162 F.3d 795, 802 & n.3 (4th Cir. 1998).
After the plaintiff establishes a prima facie case, the burden shifts
to the employer to produce a legitimate, non-discriminatory reason for
the termination. See Mereish, 359 F.3d at 334. The employer’s burden
at this stage "is one of production, not persuasion; it can involve no
credibility assessment." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000) (internal quotation marks omitted). If the
employer meets this burden, "the presumption of discrimination cre-
ated by the prima facie case disappears from the case" and the plain-
tiff must prove that the "proffered justification is pretextual." Mereish,
359 F.3d at 334; see also Texas Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 253, 255 (1981).
In this case, the district court granted summary judgment to OCIC
on Warch’s claim under the pretext approach by finding that he failed
to produce sufficient evidence to prove that he was meeting his
employer’s legitimate job expectations or that he was replaced by a
substantially younger employee. We address each conclusion in turn.
A. Legitimate Job Expectations
We first address Warch’s claim that the district court erred in con-
sidering the question of whether he was meeting his employer’s legiti-
mate job expectations during the prima facie case. According to
Warch, he should only be required to prove that he was "qualified"
for the job. Inquiring whether the employee met his employer’s legiti-
mate job expectations, Warch argues, improperly collapses the second
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stage of the McDonnell Douglas framework, where the employer
brings forth its legitimate, non-discriminatory reason for the termina-
tion, into the prima facie case.
Warch’s argument that he only needs to show that he is "qualified"
for the job, rather than meeting his employer’s legitimate job expecta-
tions, is foreclosed by circuit precedent. See Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 298 (4th Cir. 2004) (en banc)
("Hill has failed to establish a prima facie case of . . . age discrimina-
tion because, by her own admissions . . . she has failed to demonstrate
that she was performing her job duties at a level that met Lockheed’s
legitimate expectations."); Causey, 162 F.3d at 802 (requiring proof
that the employee "was qualified for the job and met the employer’s
legitimate expectations") (emphasis added).
Furthermore, considering an employer’s legitimate expectations
comports with the purpose of requiring the establishment of a prima
facie case — to screen out those cases whose facts give rise to an
inference of nondiscrimination, in other words, to eliminate the most
common, nondiscriminatory reasons for the employer’s conduct. See
Miles v. Dell, 459 F.3d 480, 488 n.5 (4th Cir. 2005) (citing Burdine,
450 U.S. 253-54). Where an employer hires a new employee, the
focus typically is on the qualifications of the candidates. Where, how-
ever, an employer fires an employee, the employer is more likely
focused on other aspects of the employment, such as poor job perfor-
mance or infractions of company rules.
Once a person is hired, the distinction between qualifications and
job expectations tends to blur. An employee may be qualified when
hired, but could fail either to maintain his qualifications or, more
commonly, to meet his employer’s legitimate expectations for job
performance. See Loeb v. Textron, Inc., 600 F.2d 1003, 1013 n.10 (1st
Cir. 1979) (noting that the fact that a plaintiff was initially hired gen-
erally indicates that he has the "basic qualifications for the job, in
terms of degrees, certificates, skills and experience"). In such cases,
the prima facie case requires the employee to demonstrate "that he
was ‘qualified’ in the sense that he was doing his job well enough to
rule out the possibility that he was fired for inadequate job perfor-
mance, absolute or relative." Id. at 1013; see also La Montagne v.
American Convenience Prods., Inc., 750 F.2d 1405, 1409 n.2 (7th Cir.
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1984) ("When an employee of long standing is discharged, the more
appropriate concern would appear to be his job performance, into
which the question of his qualifications might be seen to merge.").
Thus, we hold that courts are not required to focus solely on "qualifi-
cations" to the exclusion of the employer’s legitimate job expectations
when evaluating a plaintiff’s prima facie case of unlawful termina-
tion.
We also reject Warch’s contention that consideration of the
employer’s legitimate job expectations at the prima facie stage
improperly allows consideration of evidence the employer would typ-
ically present in the second stage of the McDonnell Doug-
las framework, that is, where the employer offers the legitimate, non-
discriminatory reason for the termination. In support of this argument,
Warch relies on the approach announced in Cline v. Catholic Diocese
of Toledo, 206 F.3d 651 (6th Cir. 2000), which held that, "when
assessing whether a plaintiff has met her employer’s legitimate expec-
tations at the prima facie stage of a termination case, a court must
examine plaintiff’s evidence independent of the nondiscriminatory
reason ‘produced’ by the defense as its reason for terminating plain-
tiff." Id. at 660-61. Because OCIC’s proffered reason for terminating
him was poor performance, Warch argues the district court erred in
considering his job performance at the prima facie stage of the
inquiry.
In Cline, a Catholic school refused to renew the contract of one of
its second-grade teachers after it discovered that she had become
pregnant a few months before getting married, in violation of the
Church’s policy against sexual intercourse outside of marriage. The
district court ruled that the teacher had failed to establish a prima
facie case of sex and pregnancy discrimination. Specifically, the dis-
trict court concluded that the teacher could not show she was "quali-
fied" because she had violated her promise to live according to the
principles of the Church. The Sixth Circuit reversed, holding that the
district court had "conflated the distinct stages of the McDonnell
Douglas inquiry by using [the school’s] ‘nondiscriminatory reason’ as
a predicate for finding Cline to have failed to make a prima facie
case." Id. at 660. Warch contends that, as his case involves a termina-
tion where the employer asserted unsatisfactory job performance as
the basis for the discharge, the district court made the same error as
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the district court in Cline by considering OCIC’s evidence of Warch’s
poor work performance at the prima facie stage. Warch argues that
the district court should have only allowed introduction of this evi-
dence at the second stage of the McDonnell Douglas inquiry.
We disagree. Although the plaintiff’s burden is "not onerous," it nev-
ertheless requires him to "prov[e] by the preponderance of the evidence
a prima facie case of discrimination." Burdine, 450 U.S. at 252-53; see
also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) ("The
plaintiff . . . must first establish, by a preponderance of the evidence, a
‘prima facie’ case . . . ."); Mackey v. Shalala, 360 F.3d 463, 468 (4th Cir.
2004) ("‘[T]he plaintiff-employee must first prove a prima facie case of
discrimination by a preponderance of the evidence.’") (quoting Evans v.
Technologies Applications & Service Co.,
80 F.3d 954, 959 (4th Cir. 1996)); Mereish, 359 F.3d at 334
("[A]ppellants must first establish a prima facie case of discrimination by
a preponderance of the evidence."). And, because a plaintiff must show
by a preponderance of the evidence that he met the employer’s legitimate
job expectations to prove his prima facie case, the employer may counter
with evidence defining the expectations as well as evidence that the em-
ployee was not meeting those expectations. To require otherwise would
turn the plaintiff’s burden at the prima facie stage into a mere burden of
production, making it "difficult to imagine a case where an employee
could not satisfy the ‘qualified’ [or legitimate expectation] element as
defined in Cline." Nizami
v. Pfizer Inc., 107 F. Supp. 2d 791, 801 n.11 (E.D. Mich. 2000). Dilut-
ing this element of the prima facie case "defeats the whole purpose of
this first stage of the McDonnell Douglas inquiry, which is, after all,
to ‘create[ ] a presumption that the employer unlawfully discriminated
against the employee’ by ‘eliminat[ing] the most common nondiscrim-
inatory reasons’ for the employer’s action." Id. (quoting Burdine, 450
U.S. at 254). In short, we find no impermeable barrier that prevents the
employer’s use of such evidence at different stages of the McDonnell
Douglas framework.
Despite our disagreement with Cline, however, we are cognizant of
the danger that courts might apply the "expectations" or "qualification"
element of the prima facie case too strictly in some cases, resulting in the
premature dismissal of potentially meritorious claims of unlawful
discrimination. See Cline, 206 F.3d at 660 ("While the discrete
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stages [of the McDonnell Douglas framework] are meant to facilitate
litigants and courts in reaching and resolving that ultimate question
of discrimination, when misapplied, they tend to distract courts from
the central issue."). A hypothetical raised in Cline illustrates the point
quite well. See id. at 663 n.7.
In the Cline hypothetical, a truck driver who loses her driver’s
license is terminated. A narrow application of the "expectation" or
"qualification" element would appear to foreclose the driver from
proving her prima facie case, since with no driver’s license she would
not be able to show that she met the job qualifications or legitimate
expectations of her employer for a position as truck driver. Yet, even
though the driver’s case would never get past the prima facie stage,
the employer could have still used the loss of the license as a pretext
for illegal discrimination. Evidence tending to show this pretext might
be that similarly situated men who lost their licenses were not termi-
nated but, instead, were temporarily suspended until they received
new licenses or were transferred to other jobs within the company.
Cline attempted to remedy this anomaly by looking "at whether an
employee met her employer’s legitimate expectations prior to the
event(s) that sparked the termination." Id. (emphasis added). Follow-
ing this lead, Warch argues that prior to the onset of events that OCIC
cites as its reasons for terminating him, he was meeting OCIC’s per-
formance expectations.
We find this approach to be unworkable, especially where there is
no one "event" that "sparked the termination," but instead a long
string of performance problems leading up to firing. The further back
in time a court goes to evaluate an employee’s performance, the more
removed the evidence is from the time of the termination. As we
explained in Lovelace v. Sherwin-Williams Co., 681 F.2d 230 (4th
Cir. 1982):
The rationality, hence fairness, of this inference [of unlawful
discrimination] obviously decreases as the time gap between
last proven satisfactory performance and challenged
employment action lengthens. Here, the time lag was almost
two years. As common experience in such matters teaches,
and as the full record reveals the case here to have been, a
great deal can happen to alter things in such a time.
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Id. at 244. See also O’Connor v. Consolidated Coin Caterers Corp.,
56 F.3d 542, 547 (4th Cir. 1995) (holding that a review of an employ-
ee’s 1989 performance was irrelevant to a determination of whether
his performance was satisfactory at the time of his termination in
August of 1990), rev’d on other grounds, 517 U.S. 308 (1996).
We think the flexibility of the McDonnell-Douglas inquiry, when
properly applied, already protects plaintiffs from the feared injustice
of the Cline hypothetical. See Brinkley v. Harbour Recreation Club,
180 F.3d 598, 611 (4th Cir. 1999) (holding that "the McDonnell
Douglas framework should not be applied in a ‘rigid, mechanized, or
ritualistic’ manner") (citations omitted); cf. Moore v. City of Char-
lotte, 754 F.2d 1100, 1105 (4th Cir. 1985) (recognizing that the
McDonnell Douglas framework is "less useful" in the context of an
alleged discriminatory disciplinary decision than in the context of an
alleged discriminatory hiring decision). Although on summary judg-
ment an employer is free to assert that the job expectation prong has
not been met, nothing prohibits the employee from countering this
assertion with evidence that demonstrates (or at least creates a ques-
tion of fact) that the proffered "expectation" is not, in fact, legitimate
at all. Thus, where application of the qualification or expectation ele-
ment of the prima facie case seems to preclude an otherwise meritori-
ous claim, the plaintiff is free to demonstrate that the employer’s
qualifications or expectations are not, in fact, "legitimate."
This flexibility, inherent in the McDonnell Douglas framework, is
true to the goal of "progressively . . . sharpen[ing] the inquiry into the
elusive factual question of intentional discrimination," Hicks, 509
U.S. at 506 (internal quotation marks omitted) (alteration in original),
and the recognition that the shifting burdens of McDonnell Douglas
are "meant only to aid courts and litigants in arranging the presenta-
tion of evidence," Watson v. Ft. Worth Bank & Trust, 487 U.S. 977,
986 (1988). Cf. Miles, 429 F.3d at 488-89 (recognizing that there may
be circumstances where application of the traditional elements of the
prima facie case might improperly screen out cases where a presump-
tion of discrimination could still exist). The same considerations
apply to the legitimate job expectations and qualifications prongs of
the prima facie case.
We now turn to the question of whether Warch has produced suffi-
cient evidence from which a jury could conclude that he met OCIC’s
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legitimate job expectations. As early as March 2000, before Bruce
Montgomery took over as lead of Warch’s unit and over two years
before Warch was terminated, Warch had already been reprimanded
concerning "several issues pertaining to [his] performance and
efforts." J.A. 274. His supervisors had advised him "on several occa-
sions concerning [company] procedures" and informed him that he
continued to suffer from "shortcomings" that "adversely impact[ed
his] personal performance and that of the unit." J.A. 274. Further-
more, after Montgomery took over as the leader of the unit, Warch
acknowledged that his own performance failed to meet OCIC’s
expectations. See J.A. 289 ("I feel an excuse for my performance is
necessary. My wife has been ill . . . .").
Warch argues that OCIC’s criticisms were too subjective to be con-
sidered at the prima facie stage. This complaint will not avail Warch
because, if for no other reason, the facts do not support it. OCIC repri-
manded Warch based on concrete, specific observations and accom-
panied its reprimands with explicit instructions on how to improve.
For example, although Warch claims the March 2000 letter he
received (before Montgomery was his supervisor) dealt only with
deficiencies in "file organization" and "office filing procedures, not
performance," Brief of Appellant at 23, the letter explicitly addresses
"several issues pertaining to [Warch’s] performance and efforts" and
discusses Warch’s "shortcomings." J.A. 274 (emphasis added).
Warch similarly contends that counseling he received in May 2001
was not specific and used only general and subjective language. We
disagree. The Formal Counseling Form states that Warch was, among
other things, "making recommendations to pay claims without gather-
ing all the facts and using all tools given to conduct such investiga-
tions" and failing to "communicate with claims." J.A. 279. The form
states that Warch’s files "lacked any investigation and there was little
or no communication with claims." J.A. 279. These are observations
of objective facts.
Warch refers to opinions of those who thought he was doing a good
job and points to savings he brought the company, arguing that this
evidence demonstrates he was meeting OCIC’s legitimate perfor-
mance expectations. As to the opinions, they were offered either by
those whose employment with OCIC ended well before Warch’s or
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by third parties who were never employed by OCIC at all. Thus, they
lack probative value as to whether Warch was meeting his employer’s
legitimate expectations at the time he was fired. See, e.g., Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000) (disregarding plain-
tiff’s opinions of her own performance because "[i]t is the perception
of the decision maker which is relevant, not the self-assessment of the
plaintiff," and finding the opinions of her co-workers "similarly close
to irrelevant")(citations and internal quotation marks omitted);
O’Connor, 56 F.3d at 547 (holding that a review of an employee’s
1989 performance was irrelevant to a determination of whether his
performance was satisfactory at the time of his termination in August
of 1990); cf. King v. Rumsfeld, 328 F.3d 145, 149-50 (4th Cir. 2003)
(explaining that co-workers’ opinions might be relevant in certain sit-
uations, but not where they fail to establish what expectations the
employer had and whether the employee met them).
Warch also claims he was in the upper third of performers in 2001
based on total savings by investigator. This evidence, even if true, is
simply not enough to genuinely dispute the considerable evidence of
Warch’s repeated failures and negative performance. Faced with such
abundant evidence, Warch cannot create a genuine dispute concerning
his prima facie case by cherry-picking the record to find one isolated
instance where he arguably performed better than the average
employee.
Nor has Warch shown that OCIC’s expectations were a "sham
designed to hide the employer’s discriminatory purpose," Brummett
v. Lee Enterprises, Inc., 284 F.3d 742, 745 (7th Cir. 2002), or were
somehow not "legitimate." Thus, even when viewing the evidence in
the light most favorable to Warch, we conclude that no reasonable
jury would find that he was meeting OCIC’s legitimate performance
expectations.
B. Replacement
Warch’s prima facie case also fails because he did not produce suf-
ficient evidence from which a reasonable jury could conclude that he
was replaced by a substantially younger employee. See Causey, 162
F.3d at 802 & n.3. Warch argues for a "flexible analysis" of this ele-
ment of the prima facie case, claiming that his "replacement" could
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have been at any location. He also contends that, even if no one phys-
ically replaced him, he can satisfy this element because he was a vic-
tim of a discriminatory reduction in force.
Warch initially admitted that he was not replaced by anyone. J.A.
90 ("I was not replaced by anybody. [My position] was eliminated.");
J.A. 262 (statement in post-termination job application). The EEOC
similarly explained that Warch "was disciplined prior to his discharge
and not replaced." J.A. 302.1 Nevertheless, Warch argues that David
Hasler, one of Warch’s supervisors, suggested that a "‘replacement’
for the SIU unit might be at any location." Brief of Appellant at 40.
Hasler also testified, however, that Warch’s work "was probably
spread out among various investigators" after he was let go. J.A. 166.
Warch has failed to present any evidence genuinely disputing this
fact, and, in light of his own admissions, he cannot prevail on his
argument that he was replaced at all, much less by a substantially
younger employee.
Warch submits that Montgomery used the sale of OCIC’s New Jer-
sey unit to substantially reduce the number of older employees.
Warch points to Causey v. Balog, which stated that a plaintiff termi-
nated as part of a reduction in force "could potentially satisfy the
fourth element of a prima facie case by introducing other probative
evidence that indicates the employer did not treat age and race neu-
trally when making its decision." 162 F.3d at 802.
When OCIC terminated Warch in 2002, it had recently concluded
the sale of its line of New Jersey personal automobile insurance poli-
cies. OCIC’s David Hasler admitted that over time there would proba-
bly be less of a need for investigators in Voorhees, New Jersey.
Warch argues that OCIC used its need to reduce investigators as a
means to eliminate older workers and points to statistics he contends
show a discriminatory pattern. He also submits that "logic and fair-
ness" required the termination of two younger New Jersey employees
who were less experienced and needed more guidance.
1The district court ruled that this letter was admissible over Warch’s
hearsay objection. This ruling is not challenged on appeal.
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There are several problems with Warch’s argument. Perhaps most
importantly, Warch has presented no evidence that he was actually
terminated as a part of a reduction in force. OCIC never told Warch
he was "downsized" or "laid off" because of a loss of business or bud-
getary needs. Cf. Causey, 162 F.3d at 800 (explaining that Causey’s
employer told him that his position was being abolished due to bud-
getary constraints). In fact, OCIC’s Hasler concluded that, because
there were still previously issued policies in place, "there will still be
claims on those, and there were open claims on those at the time, so
it’s hard to estimate how long it would take for all of that business
to roll off." J.A. 182. Moreover, Warch’s statement that two younger
New Jersey investigators should have been terminated instead of him
completely ignores his own long string of performance problems.
Warch’s argument is based on nothing more than speculation con-
cerning statistically insignificant information. For example, Warch
points to numbers showing the firing, retirement, and termination
from his unit of selected investigators over the age of forty. His evi-
dence, however, says nothing about how the turnover rate of over-
forty employees differed from that of under-forty employees. A rea-
sonable juror simply could not draw the inferences of age discrimina-
tion that Warch claims from much of the statistical evidence he
submits. For example, Warch lists the names of six investigators he
alleges were over the age of 40 who have either been fired, retired
with a company recommendation not to hire, or terminated per mutual
agreement. But, one of the listed employees was not 40 when termi-
nated, and two of the remaining investigators left OCIC before con-
trol of Warch’s unit was assumed by Montgomery, allegedly the
source of the discriminatory animus. Thus, the evidence is simply not
probative enough to create a genuine issue of fact. See Fisher v.
Asheville-Buncombe Tech. Community College, 857 F. Supp. 465,
470 (W.D.N.C. 1993) (finding plaintiff’s statistical evidence "derived
from too small a sample" and "simply too speculative" to be probative
of alleged age discrimination).
In light of Warch’s own admissions that he was not replaced,
OCIC’s well-documented problems with Warch’s performance, and
the absence of any evidence showing that he was the victim of a
reduction in force, much less a discriminatory one, no reasonable jury
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could find that Warch could establish the fourth element of his prima
facie case.
IV.
Under a "mixed motive" approach, Warch can establish a claim of
age discrimination by demonstrating that his age motivated OCIC’s
decision to terminate him, even though it was not the sole motivating
factor. See Hill, 354 F.3d at 284. The district court observed that there
is some question as to whether a plaintiff claiming age discrimination
can use circumstantial evidence when proceeding under a mixed-
motive framework. See id. at 285 n.2; Mereish, 359 F.3d at 339-40
(expressing doubt as to whether the more lenient standard of proof
allowed in Title VII claims applied to ADEA claims, but deciding
that, even under this more lenient standard, the appellants’ claims
failed). Like the district court and the court in Mereish, we conclude
that Warch’s claim fails even when both direct and circumstantial evi-
dence are considered.
Direct evidence must be "evidence of conduct or statements that
both reflect directly the alleged discriminatory attitude and that bear
directly on the contested employment decision." Taylor v. Virginia
Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc) (citation
and internal quotation marks omitted). Even if there is a statement
that reflects a discriminatory attitude, it must have a nexus with the
adverse employment action. See Brinkley, 180 F.3d at 608 ("To sur-
vive summary judgment on the basis of direct and indirect evidence,
Brinkley must produce evidence that clearly indicates a discrimina-
tory attitude at the workplace and must illustrate a nexus between that
negative attitude and the employment action.").
The direct evidence presented by Warch on appeal consists of the
comments of Montgomery and Robert Burgess, another OCIC
employee, that a job candidate who happened to be similar in age and
experience to Warch would have a hard time getting a job because
"hiring people at that age, they didn’t get the work out of them that
they did younger people." J.A. 211. Warch presents no evidence
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showing this comment was more than an isolated event or that it had
any nexus with the decision to terminate him.2
As to his circumstantial evidence, Warch claims that Montgomery
purposefully rigged a performance audit that Warch originally passed
so that it would instead show that he failed. This evidence, however,
does not create any inference that age was a motivating factor in
Warch’s termination. Furthermore, there is no evidence that the other
well-documented performance problems Warch encountered were
somehow linked to the failed audit score.
Warch also argues that his statistical evidence revealed a pattern of
unlawful age discrimination, and alleged that two older employees
were "forced out" around the same time that Montgomery made his
age-biased comments. On this argument, the district court properly
concluded that Warch had not presented "probative circumstantial
evidence to show that OCIC acted with discriminatory animus." J.A.
59. Warch’s statistics do not show complete information about where
the data came from, how many investigators OCIC employed, who
supervised them, and, most importantly, as the district court observed,
"how many investigators under 40 have left the company during the
same time period." J.A. 59. Any suggestion that the two older
employees who left OCIC around the same time as Montgomery’s
alleged comments were victims of age discrimination is pure specula-
tion and, without more evidence, simply cannot create an inference of
illegal age discrimination.
Accordingly, even when we consider Warch’s circumstantial evi-
dence, he fails to create a genuine dispute on his claim under the
mixed motive approach.3
2Warch also submitted to the trial court statements allegedly made by
Montgomery to Frank Kortyka, an OCIC employee, that he wanted to
eliminate older workers and have a younger staff. Warch has not relied
on these statements on appeal. As to all of the age-related comments
Warch introduced, the district court explained that the exact statements,
when they were made, and their context were unclear from the record.
The record was clear, however, that none of the statements were directed
to Warch or referred directly to him.
3Our ruling that Warch failed to submit sufficient evidence on his
claim under either the pretext or mixed motive approaches makes it
unnecessary for us to address the parties’ arguments concerning who was
the "decisionmaker."
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V.
Under either his pretext approach or his mixed motive approach,
Warch failed to create a genuine dispute that he was the victim of ille-
gal age discrimination. As a result, we affirm the decision of the dis-
trict court.
AFFIRMED
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