UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH GONZALEZ,
Plaintiff-Appellant,

v.                                                                     No. 98-1632

ROYAL INDEMNITY COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CA-95-512-MU)

Submitted: November 30, 1999

Decided: December 22, 1999

Before MOTZ, TRAXLER, and KING, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Keith H. Cole, Jr., DODGE, FAZIO, ANDERSON & JONES, P.C.,
Dallas Texas; Martha J. Efird, Charlotte, North Carolina, for Appel-
lant. John J. Doyle, Jr., Jill S. Stricklin, CONSTANGY, BROOKS &
SMITH, L.L.C., Winston-Salem, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Joseph Gonzalez appeals the district court's order awarding sum-
mary judgment to Royal Indemnity Company ("Royal") on Gonza-
lez's claim of age based employment discrimination brought pursuant
to the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621-
634 (West 1999) and the Employment Retirement Income Security
Act of 1974. Gonzalez claims that summary judgment was improper
because he produced sufficient evidence of discrimination to place a
material fact in dispute. See McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). We agree.

After reviewing the evidence proffered by Gonzalez, we find that
he produced sufficiently probative and admissible evidence regarding
age-based discrimination to place a question before a jury. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (stating
that credibility determinations and weighing of the evidence are jury
functions and not those of a judge).

First, Gonzalez produced internal documents from Royal's Senior
Management Group ("SMG") that permit the inference that the com-
pany in planning how to implement its Reduction In Force ("RIF"),
may have considered eliminating employees on the improper basis of
their age. We reject Royal's contention that the documents obtained
by Gonzalez from Royal during discovery, are unauthenticated and
unidentified. See Celotex v. Catrett, 477 U.S. 317, 324 (1986) (hold-
ing that at the summary judgment stage evidence need not be pro-
duced in a finalized form that would be admissible at trial). We thus
find that when the inferences are drawn in Gonzalez's favor, as they
must be on a motion for summary judgment, Gonzalez established a
prima facie case of age discrimination. See Herold v. Hajoca Corp.,
864 F.2d 317, 319-20 (4th Cir. 1988) (stating standard for age dis-
crimination case during RIF).

Gonzalez also raised a legitimate question as to whether Royal fol-
lowed its own procedures in eliminating Gonzalez from its workforce.
Royal asserted that it followed a policy of not"bumping" employees.
Instead, Royal claimed that it pursued a policy of eliminating posi-

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tions, not people. Accordingly, it states that when it eliminated Gon-
zalez's position, it did not consider him for any other positions within
his group. However, several documents produced by Royal during the
discovery process arguably indicate otherwise. A document produced
by Jodie Figge of Royal's human resources department indicated that
departments should identify their essential positions and then "iden-
tify which employees have the skills needed to perform the remaining
tasks." (J.A. at 198). Similarly, Victor Daley of the SMG described
the need to determine "which employees should be placed or retained
in a given position." (J.A. at 204). Gonzalez argues that if Royal gen-
uinely intended to eliminate positions, there would be no reason to
consider placement or retention of employees; those in positions that
were not eliminated would be secure in their respective jobs. While
we indicate no view on the merits of Gonzalez's argument, we agree
that a reasonable fact finder could conclude that Royal's own docu-
mentation contradicts its stated workforce reduction criteria. Thus,
Gonzalez raised a material question of fact as to whether Royal's rea-
sons for dismissing him were pretexts for age discrimination. Id. at
320.

Royal also claims that when it eliminated two consultant positions
from its workers compensation group, one of which was occupied by
Gonzalez, there were no remaining positions in which Gonzalez could
be placed. However, this situation resulted only because of Royal's
decision to promote the other consultant whose position was elimi-
nated, Charles Schuver, an individual Royal had recently demoted,
over Gonzalez. While Royal asserts that it did not consider Gonzalez
for the position in which it placed Schuver based on Gonzalez's
alleged failure to succeed in that position previously, Royal's decision
to promote a recently demoted employee over Gonzalez again raises
a question of material fact. Accordingly, we hold that summary judg-
ment was premature as the facts construed in the light most favorable
to Gonzalez, see Anderson, 477 U.S. at 250, reveal that he made an
adequate showing that Royal's reasons for terminating him were pre-
textual and that he created a genuine issue of material fact as to
whether his termination was made because of his age. See Herold,
864 F.2d at 320.

We vacate the district court's grant of summary judgment and
remand for further proceedings. We dispense with oral argument

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because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

VACATED AND REMANDED

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