UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT E. JONES, III,
Plaintiff-Appellant,

v.
                                                                No. 99-1590
WESTINGHOUSE ELECTRIC
CORPORATION; NORTHROP GRUMMAN
CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-97-1147-MJG)

Argued: January 26, 2000

Decided: February 23, 2000

Before NIEMEYER, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
Frederic N. SMALKIN, United States District Judge
for the District of Maryland,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: J. Kirby Fowler, Jr., OBER, KALER, GRIMES &
SHRIVER, P.C., Baltimore, Maryland, for Appellant. Glen David
Nager, JONES, DAY, REAVIS & POGUE, Washington, D.C., for
Appellees. ON BRIEF: Pamela J. White, Venetia D. Bell, OBER,
KALER, GRIMES & SHRIVER, P.C., Baltimore, Maryland, for
Appellant. Thomas M. Beck, JONES, DAY, REAVIS & POGUE,
Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff Robert E. Jones, III, filed a complaint in the District Court
against his employer, asserting claims under the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et seq . (the ADEA), and the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the
ADA). After briefing and argument, the District Court granted sum-
mary judgment on both claims in favor of the defendants. The plain-
tiff now appeals the grant of summary judgment on the ADEA claim,
but not on the ADA claim. The judgment of the District Court will
be affirmed.

The appellant first asks this panel of the Court to revisit the "pre-
text plus" standard we have adopted in analyzing claims brought
under Title VII and other statutes to which the Title VII proof scheme
is applicable. See Vaughan v. MetraHealth Cos. , 145 F.3d 197 (4th
Cir. 1998). We decline to do so, invoking the rule that one panel of
this Court does not revisit issues authoritatively decided by another.
See Jones v. Angelone, 94 F.3d 900, 905 (4th Cir. 1996).

The District Court properly applied the Vaughan rule to this case,
in determining that there were no genuine disputes of fact warranting
trial as to any presence of age discrimination in the layoff of Mr.
Jones, then 56 years of age. Mr. Jones was one of six materials man-
agers who worked for Mr. Burns, who was under downsizing instruc-

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tions as part of the employer's fifth major downsizing of the `90s. Mr.
Burns also supervised 35 non-managers (called "professionals") in the
materials field. He selected Mr. Jones for layoff (whereas two other
managers (ages 55 and 53) were transferred to other jobs), having,
according to him, decided that there was no need for a managerial
employee in the ARSR-4 program that Mr. Jones was managing at the
time. A "professional," Mr. Evans (47) was retained in the program.

Although the District Court found that there was evidence of pre-
text in the reasons advanced by Burns for selecting Mr. Jones for lay-
off, it went on to find, using the Vaughan matrix, that Jones had
adduced no evidence sufficient to warrant trial-- under the general
summary judgment standards of Celotex Corp. v. Catrett, 477 U.S.
317 (1986) -- that Mr. Jones's selection for layoff was a result of pro-
hibited age discrimination. We agree.

Even if one were to find evidence of pretext here (which is itself
a matter of some doubt, given the tiny difference in"PAS" ratings
between Jones and Evans (.04 out of 4.00 points)), Jones has pointed
to no "plus" evidence that would warrant a reasonable fact-finder in
concluding, by a preponderance of the evidence were the case at the
directed verdict stage, that Jones was selected for layoff on account
of his age, in whole or in part. As noted, the difference in PAS rating
between him and Evans was minuscule. Even though the PAS rating
appears to be an objective measure of performance, it obviously was
based to some extent on subjective assessments, which are hardly so
quantifiable that .04 on a 4.00 scale can be taken as evidence that
Evans was not retained on the merits, but because he was younger
than Jones. Furthermore, the Court is of the opinion that the number
of people involved in the relevant selection pool was so small that
numerical proof is insufficiently probative to generate a triable dis-
pute, especially absent expert testimony signifying its probative value.
See Vaughan, 145 F.3d at 203.

Finally, Jones points to a memorandum recording certain com-
ments by the Chairman of Westinghouse at a July, 1994, "Chairman's
Initiative" meeting. The comments, made during a colloquy between
the Chairman and an unidentified participant, concerned the presence
of "blockers" in the workforce, as a result of the company's past cul-
ture of paternalism. Even if the Court were to infer that "blockers"

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was intended as a euphemistic reference to workers in the ADEA-
protected class generally, there is no evidence whatever that the com-
ments in question ever came to the attention of any of the decision-
makers in this case. Even if there were such evidence, it would be
insufficient alone or in combination with the other evidence relied
upon to generate a triable issue for Mr. Jones. See, e.g., O'Connor v.
Consolidated Coin Caterers Corp., 56 F.3d 542,548-49 (4th Cir.
1995), rev'd on other grounds, 517 U.S. 308 (1996), following
remand, 84 F.3d 718 (4th Cir.), cert. denied , 519 U.S. 1040 (1996).

For the stated reasons, the judgment of the District Court is
affirmed.

AFFIRMED

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