PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCES D. BURNS,
Plaintiff-Appellant,

v.

AAF-MCQUAY, INCORPORATED, a
                                                                     No. 95-2831
Minnesota Corporation,
Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amicus Curiae.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CA-94-49-H)

Argued: June 3, 1996

Decided: September 23, 1996

Before ERVIN and MOTZ, Circuit Judges, and SPENCER,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed in part and reversed and remanded in part by published
opinion. Judge Ervin wrote the opinion, in which Judge Motz and
Judge Spencer joined.

_________________________________________________________________

COUNSEL

ARGUED: Stephanie Rader Sipe, LITTEN & SIPE, Harrisonburg,
Virginia, for Appellant. Paul D. Ramshaw, UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae. Bruce McCoy Steen, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,
for Appellee. ON BRIEF: Donald D. Litten, Sr., LITTEN & SIPE,
Harrisonburg, Virginia, for Appellant. C. Gregory Stewart, General
Counsel, Gwendolyn Young Reams, Associate General Counsel, Vin-
cent J. Blackwood, Assistant General Counsel, UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C., for Amicus Curiae. J. Robert Brame, III, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,
for Appellee.

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Frances Burns sued her former employer, AAF-McQuay, Inc.,
alleging that she was demoted and constructively discharged in viola-
tion of the Age Discrimination in Employment Act ("ADEA"), 29
U.S.C. § 621 et seq. The magistrate judge found a genuine issue of
material fact as to whether AAF-McQuay's asserted reasons for the
demotion were pretextual. The district court disagreed, finding insuf-
ficient evidence of pretext or of constructive discharge, and entered
summary judgment in favor of AAF-McQuay. We affirm the court's
finding that Burns failed to prove constructive discharge, but reverse
and remand for trial on the question of whether she was demoted ille-
gally.

I

Federal question jurisdiction over ADEA actions is appropriate
under 28 U.S.C. § 1331. This court has appellate jurisdiction over the
district court's summary judgment under 28 U.S.C.§ 1291. We
review the district court's summary judgment de novo, e.g., Higgins
v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.
1988), viewing the evidence in the light most favorable to the non-
moving party. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986).

                    2
II

The district court stated the facts in the light most favorable to
Burns:

          The plaintiff, Frances D. Burns, was employed by the
          defendant, AAF-McQuay, Inc., for approximately sixteen
          years at the defendant's facility in Staunton, Virginia. The
          plaintiff was the secretary to the human resources manager
          until her reassignment to the position of switchboard opera-
          tor. Approximately one month after her reassignment, the
          plaintiff resigned her employment with the defendant. From
          1978 to 1991, the plaintiff was supervised by Chuck Welsh
          (Welsh). From 1991 to 1992, the plaintiff was supervised by
          Gary Alderson (Alderson). In 1992, Stephen B. Horney
          (Horney) became the human resources manager and the
          plaintiff's supervisor. Horney was the plaintiff's supervisor
          at all times relevant to this matter.

           The plaintiff claims that supervisors Welsh and Alderson
          consistently evaluated the plaintiff's performance as "com-
          mendable" or "excellent." The plaintiff claims that she
          maintained good working relationships with both Welsh and
          Alderson and that neither supervisor criticized her work per-
          formance. Alderson testified that the plaintiff was an excel-
          lent employee and that her job was definitely not in jeopardy
          because of her work performance.

           The defendant claims, however, that Horney became dis-
          satisfied with the plaintiff's performance.

          * * *

           In February 1994, Horney transferred the plaintiff to the
          position of switchboard operator and replaced the plaintiff
          with Donna Brown, then thirty-nine years of age. On March
          4, 1994, the plaintiff resigned from the company. At the
          time of her transfer, the plaintiff was sixty-five years of age,
          and Horney was forty-six years of age.

                     3
Memorandum Opinion at 2-4.

III

A

The Fourth Circuit recognizes two avenues of proof by which an
employee can prove an ADEA violation: "(1) under ordinary princi-
ples of proof using any direct or indirect evidence relevant to and suf-
ficiently probative of the issue, or (2) under a judicially created proof
scheme originally used in the Title VII context in McDonnell Douglas
Corp. v. Green . . . and subsequently adapted for use in ADEA cases."
Tuck v. Henkel Corp., 973 F.2d 371, 374-75 (4th Cir. 1992) (citing,
inter alia, McDonnell Douglas, 411 U.S. 792 (1973)), cert. denied,
507 U.S. 918 (1993). The district court determined that Burns had
failed to create a genuine issue of material fact under either frame-
work.

On appeal, Burns relies only on the McDonnell Douglas scheme.
We described its operation in Tuck:

          [T]he employee must first establish a prima facie case of
          age discrimination by showing that (1) he is a member of
          the protected age group (over 40); (2) he was discharged or
          demoted; (3) at the time of discharge or demotion he was
          performing his job at a level that met his employer's legiti-
          mate expectations; and (4) following his discharge or demo-
          tion, the plaintiff was replaced by someone of comparable
          qualifications outside the protected class.1 Such a prima
_________________________________________________________________
1 In April the Supreme Court reversed a decision of the Fourth Circuit
in O'Connor v. Consolidated Coin Caterers Corp. , 116 S. Ct. 1307
(1996). The Court took no position on the applicability to the ADEA of
the McDonnell Douglas framework:

          In assessing claims of age discrimination brought under the
          ADEA, the Fourth Circuit, like others, has applied some variant
          of the basic evidentiary framework set forth in McDonnell
          Douglas. We have never had occasion to decide whether that
          application of the Title VII rule to the ADEA context is correct,

                     4
          facie case creates only an inference of age discrimination,
          which the employer can then rebut by presenting legitimate,
          non-discriminatory reasons for the termination. If the
          employer rebuts the employee's inference of age-based dis-
          crimination, the employee can still prevail by demonstrating
          by a preponderance of the evidence that the defendant's
          proffered reason was a pretext for discrimination. To make
          this demonstration, the employee must show that as between
          the plaintiff's age and the defendant's explanation, age was
          the more likely reason for the dismissal, or that the employ-
          er's proffered explanation is simply "unworthy of credence."
          The burden of persuasion remains with the plaintiff through-
          out.

973 F.2d at 375 (emphasis added) (citations omitted).

The district court found that Burns had satisfied the requirements
of the prima facie case, so the burden of production shifted to AAF-
McQuay to demonstrate nondiscriminatory reasons for demoting her.
Moreover, the court agreed that Burns had responded to AAF-
McQuay's asserted reasons with sufficient evidence that a jury could
disbelieve some of them. It concluded, however, that she had not cre-
ated a jury issue because her evidence failed to challenge two of the
reasons.

Burns contends on appeal that her evidence, while perhaps failing
to rebut each of AAF-McQuay's reasons individually, is sufficient in
the aggregate that a jury reasonably could find all of AAF-McQuay's
proffered reasons to be pretextual. She is joined in that position by the
EEOC, as amicus curiae. The McDonnell Douglas framework, the
_________________________________________________________________

          but since the parties do not contest that point, we shall assume
          it.

116 S. Ct. at 1309-10 (citations and footnote omitted). The Court did
modify the framework somewhat, however, by ruling that the worker
who replaces an ADEA plaintiff need not be outside the protected class:
"The fact that one person in the protected class has lost out to another
person in the protected class is thus irrelevant, so long as he has lost out
because of his age." Id. at 1310.

                     5
EEOC argues, does not require a plaintiff to refute every nondiscrimi-
natory reason offered by the employer. A particular reason may be
"so arbitrary or unreasonable that a factfinder may infer, on that
ground alone, that the challenged decision was not actually based on
that reason, and that the reason is a pretext for discrimination." Or,
it continues, the plaintiff's evidence undermining some of the defen-
dant's asserted reasons might lead a jury to believe that the remaining
reasons also are pretextual.

Burns's and the EEOC's proposed application appears compelling
in a vacuum, because an employer should not be able to avoid trial
by offering flimsy excuses. But the McDonnell Douglas framework
is not a vacuum. It is a cousin of res ipsa loquitur that effectively
shifts the burden of production by allowing a plaintiff to get to the
jury on her own flimsy evidence, without proving a discriminatory
motive, if the employer cannot show a nondiscriminatory motive. It
does not shift the burden of proof, however, but offers an alternate
means by which a plaintiff may prove the same ultimate point:

          Despite the "minutiae of the various proof schemes set forth
          in McDonnell Douglas," we emphasized in Birkbeck v. Mar-
          vel Lighting Company, 30 F.3d 507, 511 (4th Cir.[ ]), [cert.
          denied, 115 S. Ct. 666 (1994),] that the"straightforward"
          question to be answered in discrimination cases is whether
          the plaintiff has successfully demonstrated that she was the
          victim of age discrimination on the part of the employer. To
          withstand summary judgment, [a claimant] must produce
          direct or circumstantial evidence "of a stated purpose to dis-
          criminate [on the basis of age] of sufficient probative force
          to reflect a genuine issue of material fact." [EEOC v.] Clay
          Printing, 955 F.2d [936,] 941 [(4th Cir. 1992)] (quoting
          Goldberg v. B. Green & Co., Inc., 836 F.2d 845, 848 (4th
          Cir. 1988)).

Henson v. Liggett Group, Inc., 61 F.3d 270, 275 (4th Cir. 1995).
Therefore, if the plaintiff offers nothing to disprove the defendant's
nondiscriminatory explanations, the explanations' weakness alone is
insufficient to create an issue of pretext. Instead, the burden of pro-
duction returns to the plaintiff to present affirmative evidence of age-
based animus.

                     6
The district court found that Burns's evidence was insufficient to
reach the jury under the traditional proof scheme. Even if we accept
that conclusion, however, it is not dispositive of the pretext question
under the McDonnell Douglas framework. A showing of pretext
demands the same type of proof--affirmative evidence of discrimina-
tory intent--required under traditional principles, but not necessarily
the same quantum. Affirmative proof that alone does not suffice
under the traditional scheme may, when combined with the weakness
of the defendant's asserted nondiscriminatory reasons, create a prima
facie case of pretext.

Burns reports several incidents that, she contends, reveal Horney's
age-based animus toward her. She alleges that Horney"told her that
she did not `fit into [his] group,'""accused her of walking around like
a `ten-year-old' even though she was sixty-five," "questioned her
about her plans to retire," and "threaten[ed] to demote her." Burns
also points to concerns Horney expressed about the quality of her
work, including typographical errors. Horney was asked in his deposi-
tion what he thought might have caused Burns's unsatisfactory per-
formance:

          A. My guess is that would probably link with the loss
          of skills. Again, that's just a general statement.

          Q. Loss of skills. What would be a cause of loss of
          skills?

          A. I don't know. It's by virtue of not doing it enough
          or doing too much or whatever. I don't know as far as why
          do people lose skills. Why do you lose your memory? Why
          do you have problems reading? Is it your eyeglasses? I don't
          know. Inability to concentrate, I guess, would probably
          incorporate all of those in potential loss of skill.

          Q. Do you think her age had anything to do with her
          loss of skills?

          A. I don't know. That's not my--I don't know. I've
          seen people that had skills that were younger and for some

                    7
          reason lost skills, inability to adapt to an environment. I
          don't know if that's a good analogy. And then I think people
          who are older have the willingness and ability to do out-
          standing work. So as far as the age issue, probably it didn't
          cross my mind, no.

The district court held that this proof was insufficient to create a
genuine issue of fact under the traditional scheme: "`[I]solated and
ambiguous statements . . . are too abstract, in addition to being irrele-
vant and prejudicial, to support a finding of age discrimination.'"
Memorandum Opinion at 11 (quoting O'Connor v. Consolidated Coin
Caterers Corp., 56 F.3d 542, 548-49 (4th Cir. 1995), rev'd on other
grounds, 116 S. Ct. 1307 (1996) (internal quotations omitted)). We
agree. The evidence cited indicates that Horney was cognizant of
Burns's age, and associated it with deficiencies in her performance.
But demotion based on performance does not violate the ADEA, even
if the employer believes that the performance problems are age-
related. For example, if a professional athlete loses his speed, his team
will not have to keep him just because the coaches believe that the
loss is attributable to age.

Nevertheless, evidence of the weakness of AAF-McQuay's nondis-
criminatory reasons bolsters Burns's ambiguous affirmative proof.
AAF-McQuay cited approximately eighteen incidents that allegedly
motivated its demotion of Burns, but the district court found that
Burns cast into doubt all but two--"six to ten typographical errors
. . . , and the . . . failure to schedule the arbitration meeting." A jury
might find that those two incidents truly motivated AAF-McQuay's
demotion of Burns, or it might disbelieve Burns's contradictory evi-
dence and conclude that all eighteen incidents contributed to the deci-
sion. However, if the jury accepts Burns's evidence contradicting
sixteen of the eighteen incidents, and her proof that Horney made
ambiguous comments about her age, it might reasonably conclude
that AAF-McQuay used the two remaining incidents as a pretext for
age-based discrimination.

B

The district court acknowledged, and AAF-McQuay does not dis-
pute, that Burns's demotion constituted an "unfavorable employment

                     8
action." Thus, if prompted by an illegal motive, it would be compen-
sable under the ADEA. The court rejected, however, Burns's conten-
tion "that the defendant's continued hostility toward the plaintiff
coupled with the demoralizing effect of her reassignment forced her
to resign her employment and thereby constitute[d] a `constructive
discharge.'" Memorandum Opinion at 7. To prove constructive dis-
charge, the district court noted, a plaintiff must show that the
employer intended to induce the plaintiff to quit. E.g., Bristow v.
Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied,
475 U.S. 1082 (1986). Moreover, the plaintiff must prove that "a rea-
sonable person in the employee's position would have felt compelled
to resign" by the employer's actions. Id.

The district court held that Burns failed under both prongs. Burns
"assumed" that Horney intended her to resign, the court pointed out,
from Horney's alleged arrogance, disrespect, unkindness, and hostil-
ity, even though other employees testified that Horney acted arro-
gantly toward them, also. The court held that a jury could not
reasonably make the same assumption.

On appeal, Burns attempts to distinguish Horney's treatment of her
from his treatment of other employees. Her demotion itself, she
argues, belies Horney's intent to force her out. Moreover, after Hor-
ney demoted her, he harassed her for reading the newspaper at the
switchboard on her own time, criticized her for not opening the
switchboard on time when she actually had opened it early, and inex-
plicably threatened to fire her one day upon her return from lunch.

We agree with Burns that AAF-McQuay has not presented evi-
dence of equivalently offensive conduct by Horney toward other
employees. However, even if Horney particularly disliked Burns, that
alone does not support an inference that he intended to force her to
resign.2 The district court correctly determined, therefore, that Burns
had failed to present sufficient evidence of constructive discharge.
_________________________________________________________________

2 Because Burns presented insufficient evidence that Horney intended
to force her out, we need not address the tolerability of her working con-
ditions.

                    9
IV

Burns's affirmative evidence of discrimination is sufficient, when
combined with evidence that AAF-McQuay's asserted reasons for
demoting her were insubstantial, to create a genuine issue of material
fact as to whether those reasons were a pretext for age-based discrimi-
nation. However, Burns has not presented sufficient evidence of con-
structive discharge. Consequently, we affirm the court's summary
judgment on the question of constructive discharge, but reverse and
remand for a jury determination of whether the demotion violated the
ADEA.

AFFIRMED IN PART AND REVERSED AND
REMANDED IN PART

                    10
