PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KENNETH A. DOCKINS,
Plaintiff-Appellant,

v.                                                                    No. 98-1285

BENCHMARK COMMUNICATIONS,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CA-97-554-6-20-AK)

Argued: January 26, 1999

Decided: March 29, 1999

Before WILKINSON, Chief Judge, and WILKINS and
KING, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judge Wilkins joined. Judge King wrote
a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Benjamin Allen Dunn, II, CROMER & MABRY, Colum-
bia, South Carolina, for Appellant. Brent Overton Edgar Clinkscale,
HAYNSWORTH, MARION, MCKAY & GUERARD, Greenville,
South Carolina, for Appellee. ON BRIEF: James Lewis Mann Cro-
mer, CROMER & MABRY, Columbia, South Carolina, for Appel-
lant. Hamlet Sam Mabry, III, HAYNSWORTH, MARION, MCKAY
& GUERARD, Greenville, South Carolina, for Appellee.

_________________________________________________________________

OPINION

WILKINSON, Chief Judge:

Kenneth A. Dockins brought suit against his former employer,
Benchmark Communications, alleging that Benchmark fired him
because of his age in violation of the Age Discrimination in Employ-
ment Act (ADEA), 29 U.S.C. § 621 et seq . The district court, holding
that Dockins failed to raise a triable issue of fact as to whether age
was the real reason for his termination, granted summary judgment to
Benchmark. Because it is clear that Benchmark discharged Dockins
because of poor performance rather than his age, we affirm.

I.

From 1975 until his discharge in 1996, Dockins worked as an
account executive for WESC, a radio station in Greenville, South Car-
olina. Dockins sold air time to advertisers in the station's listening
area. WESC paid Dockins on a straight commission basis augmented
by occasional bonuses. Dockins was supervised by Charles Wayne
Sumner who, as the station's senior account executive, also sold
advertising time.

In March 1995, Benchmark Communications purchased WESC.
Benchmark hired Mike LoConte to oversee the seven to eight sales
representatives of WESC as well as the representatives of its sister
station, WTPT.

LoConte, whose remuneration depended in part on the revenues
generated by those under his command, attempted to improve adver-
tising sales. Once a month he met with each representative to estab-
lish sales goals for the forthcoming month and to analyze the previous
month's sales. In one of LoConte's first meetings with Dockins in
August, LoConte informed him that his performance was substandard

                    2
and requested that he submit daily call sheets to focus his sales activi-
ties.

Despite LoConte's warning to Dockins about his performance,
Dockins' output continued to lag behind that of his colleagues. In the
third quarter of 1995 Dockins sold less than any other salesman who
worked for WESC for the full quarter -- generating $20,000 less in
sales than the representative selling the next lowest amount. In the
fourth quarter, Dockins was second-to-last in sales revenue generated.
Most notably, Dockins failed to cultivate new accounts. His new
account sales for the third quarter totaled only $2,490, placing him
roughly $6,000 behind the next lowest full-time sales representative.
In the fourth quarter, Dockins' new account sales dipped to just $900.

In response to Dockins' scant output, LoConte called a meeting
with Sumner and Dockins on January 15, 1996. LoConte informed
Dockins that he was placing him on a thirty-day probationary period,
during which LoConte expected his sales numbers to improve. When
they did not, LoConte terminated Dockins' employment. Dockins was
sixty years old at the time.

Alleging that Benchmark fired him because of his age rather than
for any legitimate reason, Dockins brought suit in the United States
District Court for the District of South Carolina. The district court
granted summary judgment to Benchmark.

II.

Dockins attempts to prove his claim of discrimination by relying
on the extended burden-shifting scheme first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At this
stage in the litigation, however, the ultimate question is whether
Dockins can demonstrate that Benchmark discharged him because of
his age. See United States Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983). We agree with the district court that
Benchmark discharged Dockins because of his poor performance, and
that this case is clearly one about business realities rather than age
animus.

                     3
A.

Benchmark claims that it fired Dockins due to his poor perfor-
mance rather than because of his age. Benchmark offers substantial
evidence that Dockins' sales output during the second two quarters of
1995 pegged him as WESC's least effective sales representative. Dur-
ing the third quarter, Dockins posted a total of $60,229 in sales, fully
$20,000 less than the next lowest performing full-time representative.
During the fourth quarter, Dockins sold $74,776 worth of air time, a
sum which landed him second from the bottom.

Just as importantly, Dockins' sales from new accounts were below
those of his fellow sales representatives. He generated only $2,490 in
July and none in August or September, making him the lowest pro-
ducing full-time salesman by nearly $6,000. Similarly, he created no
sales from new accounts in October and November, and only $900
worth in December.

Notably, Sumner, who is close in age and experience to Dockins,
consistently turned in sales figures that far outstripped Dockins'. For
instance, Sumner sold $207,515 in air time for the third quarter of
1995 as compared with Dockins' $60,229. And in the fourth quarter
Sumner sold $210,313 worth of advertising while Dockins' sold only
$74,776. Finally, Sumner's new business sales for the third quarter
alone were well over Dockins' for the third and fourth quarters com-
bined.

Dockins does not dispute the fact that his numbers place him not
at the top, not even in the middle, but at the absolute bottom of the
list. Instead, he offers excuses. Dockins alleges that Benchmark took
a series of actions to lower his sales figures during the last half of
1995. But even if Benchmark attempted to decrease Dockins' sales,
that fact is irrelevant unless Dockins can show Benchmark did so
because of age bias. This, he cannot do.

First, Dockins alleges that Benchmark failed to include in his sales
figures the "trade business" -- the trading of air time for goods and
services rather than money -- in which he engaged during the last
half of the year. Second, Dockins claims that Benchmark transferred
one of his accounts to another WESC sales representative. Third,

                    4
Dockins claims that LoConte refused to provide some of Dockins'
accounts with bonus commercials, forcing them to discontinue their
advertising with WESC.

Benchmark presents unrefuted evidence, however, that in each
instance it acted pursuant to neutral corporate policies which it applies
equally to each of its representatives regardless of age.1 With regard
to Dockins' trade business, it is Benchmark's standard practice to
exclude those figures from a representative's sales. Similarly, Bench-
mark followed its traditional rule of assigning accounts by company
rather than brand name when it transferred Dockins' account. Finally,
Benchmark introduces uncontested evidence that providing bonus
commercials to Dockins' other accounts would have made them
unprofitable.

Dockins makes two additional accusations that Benchmark ham-
pered his performance, but he fails to provide any evidentiary support
beyond mere supposition. In no event does he tie his allegations to
age bias on the part of Benchmark.

Initially, he claims that LoConte was rude to a representative from
an advertising agency to which Dockins had sold advertising slots,
causing the agency to purchase air time elsewhere. Even assuming
that LoConte was rude to the advertising agency's representative,
Dockins provides no evidence that age animus was the reason. In
addition, Dockins proffers nothing other than his belief that it was
LoConte's behavior that ultimately caused the agency to look else-
where.

Dockins further claims that LoConte diverted "call in business" --
business in which potential advertisers call the station unsolicited --
away from him. Again, conspicuously absent from Dockins' claim is
any evidence that age motivated LoConte. Moreover, Dockins himself
admits that he has no knowledge of any instance in which call in busi-
ness was channeled away from him. Indeed, he introduces only the
testimony of another sales representative, Allan Jenkins, that call in
_________________________________________________________________
1 The lone exception to Benchmark's neutral policy explanation is an
account that changed ownership and whose new owners decided to pur-
sue other advertising outlets.

                    5
business "probably" was diverted. Such unspecific and speculative
opinions are simply insufficient to raise a triable issue of fact as to
Dockins' performance. See, e.g., EEOC v. Clay Printing Co., 955
F.2d 936, 945-46 (4th Cir. 1992).

Finally, excuses aside, Dockins attempts to cast doubt on Bench-
mark's performance rationale by referencing the fact that Benchmark
awarded him three bonuses during the last half of 1995. But with
regard to two of the bonuses, Dockins gives us no reason to believe
they say anything about his individual performance. Benchmark
awards bonuses for any number of reasons, for instance, as rewards
for being part of a team that performs well. Dockins does explain his
third bonus; Benchmark rewarded him for reaching ninety percent of
his sales goal mid-month. Dockins' partial performance for one
month, however, says nothing about his overall performance for the
entire second half of 1995.2

In sum, Dockins' poor sales figures go virtually unrebutted. Dock-
ins' output lagged behind that of WESC's other representatives for
the entire second half of 1995. It lagged both in total sales and in new
business. LoConte warned Dockins and attempted to refocus his
efforts by requiring daily call sheets. Still, Dockins' sales were spare.
Finally, at the end of a thirty-day probationary period Benchmark ter-
minated his employment. In the face of this evidence, Dockins pres-
ents nothing more than accusations that are either unsupported by the
record or refuted by neutral policies. Dockins simply fails to indicate
that any of Benchmark's actions demonstrate discrimination on
account of age.
_________________________________________________________________

2 Dockins also trumpets the fact that Benchmark placed him on its
company-wide All-Star Sales Team for 1995. The team included those
representatives who sold $300,000 or more in air time for the year.
Dockins fails to dispute, however, the fact that with the exception of one
representative who had been with WESC for only two months every
WESC salesman received a spot on the team. Receipt of such an award
simply says nothing about Dockins' relative performance.

                     6
B.

Unable to demonstrate that any of the aforementioned actions were
motivated by his age, Dockins alleges that LoConte and Sumner made
comments revealing age bias. First, he claims that LoConte made
comments referencing Dockins' age and health. For example, Dock-
ins claims that when he and LoConte discussed Dockins' probation,
LoConte said, "With your health and your age, you need to pick up
the slack in your sales and I'm going to put you on 30-day probation."
Dockins contends that LoConte made similar statements on other
occasions such as when LoConte discharged him. Dockins, however,
produces nothing other than his own affidavit to support his allega-
tions that LoConte made inappropriate comments about his age. We
have long held that "a plaintiff's own assertions of discrimination in
and of themselves are insufficient to counter substantial evidence of
legitimate nondiscriminatory reasons" for a discharge. Williams v.
Cerberonics, Inc., 871 F.2d 452, 456 (4th Cir. 1989).

The only version of LoConte's statements for which Dockins pres-
ents any outside evidence -- here, the corroborating testimony of
LoConte himself -- is one in which LoConte mentioned Dockins'
health. As an initial matter, it is not surprising that LoConte men-
tioned Dockins' health since Dockins had on several occasions
approached LoConte to ask for time off due to illness. Moreover,
even if LoConte discussed Dockins' health, that fact in no way
implies he was discriminating against Dockins because of his age.
Health problems do increase with age. Consequently,"[r]ather than
indicating a discriminatory purpose, . . . such statements seem only
truisms." Smith v. Flax, 618 F.2d 1062, 1066 (4th Cir. 1980). Stating
a fact of life does not make one an age bigot.

Second, Dockins presents the testimony of James Rice, another
sales representative at WESC, that Sumner once referred to Dockins
as a "dinosaur." Dockins fails, however, to connect Sumner's com-
ment to any decision regarding his employment. See Birkbeck v. Mar-
vel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994); Clay
Printing Co., 955 F.2d at 942. Indeed, it was LoConte, not Sumner,
who made the decision to place Dockins on probation and who rec-
ommended his ultimate termination. Moreover, Rice himself testified
that he had no reason to believe the comment related in any way to

                    7
Dockins' age. Finally, as noted, Sumner is roughly the same age as
Dockins.

In any case, statements about age, unlike statements about race or
gender, do not rest on a we/they dichotomy and therefore do not
create the same inference of animus. "[B]arring unfortunate events,
everyone will enter the protected age group at some point in their
lives." Birkbeck, 30 F.3d at 512. Thus, every individual speaks with
the knowledge that there with the grace of God go I.

Moreover, Benchmark produces significant evidence that it pro-
vides an environment that is receptive to older workers. Far from
purging its older employees, Benchmark routinely employs and gives
responsibility to workers over the age of forty. See Clay Printing Co.,
955 F.2d at 941. Indeed, during the period of Dockins' employment
all but one of the sales representatives were in the protected age
group. Sumner, WESC's most prodigious salesman, was himself
nearly sixty years old when Dockins was fired. And the station's chief
engineer was close to sixty-five. Yet of all of these older employees,
only Dockins was let go. The character of Benchmark's workforce,
both before and after Dockins' termination, "suggests anything but a
youth movement at [Benchmark]." Id.

III.

At base, it is clear that Benchmark's decision rested wholly on the
necessities of the business world. It is not that we are without sympa-
thy for Dockins' situation. We understand the fact that bottom line
business realities produce decisions that are difficult for the individu-
als affected by them. But the lifeblood of any business is its ability
to sell its product. If salesmen underperform, a business cannot sur-
vive. And if a business does not survive, all of its employees, includ-
ing its senior ones, will be out of work. This is why the ADEA does
not "require an employer to adopt a life of economic altruism and
thereby immunize protected class members from discharge or demo-
tion despite their poor performance." Gairola v. Virginia Dep't of
Gen. Servs., 753 F.2d 1281, 1287 (4th Cir. 1985). The ADEA pre-
vents employers from acting on the basis of age-- not performance.

Here Dockins' sales numbers dipped precipitously during the latter
half of 1995. Despite repeated warnings that he should improve those

                     8
numbers and suggestions about how he might do so, Dockins' output
remained stagnant. Dockins does not establish a triable issue of fact
that Benchmark discharged him for any reason other than his failure
to perform. Indeed, he gives no reason why Benchmark would want
to discharge any employee, young or old, who was earning a profit
for the station.

The judgment of the district court is

AFFIRMED.

KING, Circuit Judge, dissenting:

Kenneth Dockins claims to have been discharged on account of his
age and, on the record before us, he can prove it. Tellingly, the Local
Sales Manager at WESC referred to Mr. Dockins as a"dinosaur." In
addition, each time LoConte -- the decisionmaker with respect to Mr.
Dockins's employment status -- took adverse employment actions
against Mr. Dockins, he made disparaging comments about Mr.
Dockins's age. In analyzing whether Mr. Dockins was, as Benchmark
asserts, nothing more than a poorly performing salesperson who was
properly discharged in February 1996, a jury can take into account,
for example, the fact that Benchmark named Mr. Dockins to its All-
Star Sales Team in January 1996 and that it also awarded Dockins at
least two performance-based bonuses in the last half of 1995.

Given these and other facts in the record, I am compelled to dis-
sent. In my view, the majority has failed to properly apply the analyti-
cal framework enunciated by this court in Vaughan v. The
Metrahealth Cos., Inc., 145 F.3d 197 (4th Cir. 1998), and has ignored
the legal mandate that, when reviewing an award of summary judg-
ment, this court must view the evidence in the light most favorable
to the nonmoving party, Burns v. AAF-McQuay, Inc., 96 F.3d 728,
730 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). As a result,
it has incorrectly determined that Mr. Dockins has not raised a jury
question on his ADEA claim.

In order to prevail on his ADEA claim, Dockins need only satisfy
the two-pronged inquiry at the final stage of the McDonnell Douglas

                    9
framework: he must present sufficient evidence that the employer's
proffered nondiscriminatory reason is false and that discrimination is
the "real reason" for the discharge. See Vaughan, 145 F.3d at 201-02;
Gillins v. Berkeley Elec. Coop., Inc., 148 F.3d 413, 416-17 (4th Cir.
1998) (noting our adoption of the pretext-plus standard in Vaughan).

The district court correctly concluded, contrary to the majority
here, that Dockins had presented sufficient evidence to create a genu-
ine issue of material fact about the legitimacy of Benchmark's prof-
fered reason for the discharge -- poor performance. Mr. Dockins
claims, in substance, that his asserted poor performance was the fault
of Benchmark, and thereby puts the legitimacy of the proffered reason
for his discharge at issue. He specifically points to other factors that
caused his low sales figures for the third and fourth quarters of 1995.1

As the district court recognized, during the two quarters at issue
Mr. Dockins had an unusually high amount of "trade business" that
was not reflected in his cash sales figures.2 Call-in customers seeking
_________________________________________________________________
1 In his Order granting summary judgment entered on February 13,
1998, Judge Herlong found as follows:

           Dockins contends that he generated an unusually high amount of
           "trade business" that watered down his cash sales figures. Fur-
           thermore, Dockins alleges that several actions taken by Bench-
           mark worked to curb his sales figures. He states that he did not
           receive sufficient "call-in" business during the period in ques-
           tion. Finally, Dockins alleges that Benchmark failed to protect
           the accounts he already managed by allowing other account
           executives to undercut certain clients. These allegations unequiv-
           ocally refute the facts supporting Benchmark's stated reason.
           Viewing these in the light most favorable to Dockins, the court
           finds that a reasonable trier of fact could decide that Bench-
           mark's proffered reason is not legitimate.
2 "Trade business" refers to an exchange of merchandise (or services)
for radio time. Mr. Dockins was handling about $20,000 of trade busi-
ness during the relevant period. He did not receive credit or commissions
for his trade business, though there is evidence that other account execu-
tives, such as Wayne Sumner, were allowed to be paid 10 percent com-
missions on trade. See ante, at 4-5.

Although there is conflicting testimonial evidence on this point, the
issue of credibility of witnesses is not for this court. See United States

                     10
to buy air time were diverted from Mr. Dockins and channeled to
younger sales representatives. Indeed, account executive Allan Jen-
kins acknowledged under oath that some call-in business that should
have gone to Mr. Dockins was probably either kept by Wayne Sum-
ner or given to another salesperson.3 For these reasons, the district
court correctly concluded that, viewing the evidence in the light most
favorable to Mr. Dockins, a reasonable trier of fact could decide that
Benchmark's articulated reason for its termination of Mr. Dockins is
a pretext.4

Next, in order to survive summary judgment, Mr. Dockins must
satisfy the second prong of the pretext-plus inquiry. He is required to
adduce "some evidence on which a juror could reasonably base a
finding that discrimination motivated the challenged employment
action." Vaughan, 145 F.3d at 202. Dockins must "present affirmative
evidence of age-based animus." Burns, 96 F.3d at 732. Mr. Dockins
clearly meets this burden with, inter alia, his testimony regarding the
comments relating to his age and health made to him by LoConte, the
decisionmaker.

First, in August 1995, when LoConte and Dockins were walking
to the General Manager's office for the meeting in which Dockins
was asked to become an independent contractor, LoConte said to
Dockins: "This will relieve you at your age of a lot of stress and prob-
lems from what I'm going to put on everybody else." After the meet-
ing, according to Dockins, LoConte
_________________________________________________________________
v. Burgos, 94 F.3d 849, 868 (4th Cir. 1996) (en banc) ("Determining
credibility of witnesses and resolving conflicting testimony falls within
the province of the factfinder, not the reviewing court.") (citation omit-
ted), cert. denied, 519 U.S. 1151 (1997).
3 Sumner not only won the top sales award for WESC for 1995, but
also was Benchmark's company-wide sales leader for 1995. Sumner is
the Local Sales Manager who referred to Mr. Dockins as a dinosaur.
4 Contrary to the majority's assertions, ante, at 4, it is not necessary for
Mr. Dockins to demonstrate that each of Benchmark's actions was moti-
vated by age bias. At the pretext stage of the pretext-plus inquiry, as the
district court correctly found, Mr. Dockins need only specifically refute
the facts that support Benchmark's proffered reason for his termination.
See DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998)(cita-
tion omitted).

                    11
         reiterated again that at my age and health -- and I don't
         know what he's talking about, health, other than the fact that
         I had had diverticulosis in May -- that I didn't need to be
         under the stress that he was going [to] put on everybody and
         to think long and hard about it.

Dockins was the only employee who was asked to become an inde-
pendent contractor; he declined, because it would have left him with-
out, among other things, retirement benefits and life and health
insurance.

LoConte's next age-related comment was delivered in mid-January
1996, when he put Mr. Dockins on thirty days' probation. Of signifi-
cance, this incident occurred only two weeks after Mr. Dockins was
named to Benchmark's All Star Sales Team for having sold over
$300,000 worth of advertising in 1995.5 Yet LoConte placed Mr.
Dockins on probation "due to poor performance for WESC sales."
When LoConte told Mr. Dockins about the probation, he said: "With
your health and your age, you need to pick up the slack in your sales
and I'm going to put you on 30-day probation."

Finally, on February 19, 1996, LoConte terminated Dockins from
employment with Benchmark. Sumner, who had called Mr. Dockins
a dinosaur, was present at the termination meeting. 6 According to Mr.
Dockins, LoConte advised him on that occasion that"with my health
_________________________________________________________________
5 Although General Manager Allen Power testified that $300,000 was
set as an easy mark so that sales representatives from Benchmark's smal-
ler stations could be included on the All-Star Team, ante, at 6 n.2, none
of the representatives from WESC's sister station, WFNQ (now identi-
fied as WTPT) made the 1995 All-Star Team. Moreover, there are at
least two other stations appearing in other award categories that are not
represented on the All-Star Team. Certainly a reasonable juror could find
that Benchmark's All-Star Team was an award of significance, and that
Power's explanation was unpersuasive.
6 That Sumner (or any of the other account executives) was roughly the
same age as Mr. Dockins does not insulate Benchmark from liability
here. Ante, at 8. See O'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 312 (1996).

                    12
and my age, that it was best that I do something else and for us to part
ways."7

These direct and unambiguous age-related comments were made
by the decisionmaker and were delivered contemporaneous with
adverse employment actions. The timing and connection of these
statements negates any possible assertion that they might be consid-
ered nonprobative, isolated remarks. See O'Connor v. Consolidated
Coin Caterers Corp., 56 F.3d 542, 549 (4th Cir. 1995)(there must be
some "`nexus . . . between the alleged discriminatory statements and
any of the employment decisions made by the [employer]'") (quoting
EEOC v. Clay Printing, 955 F.2d 936, 942 (4th Cir. 1992)), rev'd on
other grounds, 517 U.S. 308 (1996).

Furthermore, contrary to the majority's assertions, ante, at 7-8, Mr.
Dockins's testimony is sufficient -- standing alone -- to survive
summary judgment.8 Gray v. Spillman, 925 F.2d 90, 95 (4th Cir.
_________________________________________________________________

7 The majority too readily dismisses the health-related comments as
irrelevant. These comments were neither remote in time from, nor uncon-
nected to, the adverse employment decisions; nor were they simply tru-
isms about age, as the majority asserts. The comments were not general
statements about health problems increasing with age, cf. Birnbeck v.
Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir. 1994); Smith v.
Flax, 618 F.2d 1062, 1066 (4th Cir. 1980), rather they explicitly con-
cerned Mr. Dockins's health and age.

The import of the health-related statements is just the sort of question
that a jury, and not this court, should decide. A reasonable fact-finder
could find, on the basis of evidence in the record, that there was little
foundation for the concern about Mr. Dockins's health, and that the
health-related comments, made in conjunction with age-related state-
ments and contemporaneously with adverse employment actions being
taken against Mr. Dockins, were probative of age animus.
8 Williams v. Cerberonics, Inc. , 871 F.2d 452 (4th Cir. 1989), cited by
the majority, ante, at 7, is inapposite. There, we reviewed the district
court's judgment following a bench trial that Cerberonics's termination
of Ms. Williams did not violate Title VII. The issue for our review was
whether the trial court clearly erred in finding that Ms. Williams was
fired for legitimate reasons. Id. at 456. We concluded that the district
court did not err in discounting Williams's few assertions of discrimina-

                    13
1991)(concluding that plaintiff's own deposition testimony created a
genuine issue of material fact regarding his § 1983 claim and that
summary judgment for the defendants was improper). The testimony
of Mr. Dockins "is significantly probative; if believed by the jury, the
testimony is dispositive. Whether or not [Dockins's] testimony should
be believed is a credibility determination that is not for us to make."
Id.

Put simply, this is a case for jury determination, and any lawyer
would be pleased with this much evidence from which to frame a jury
argument on Mr. Dockins's behalf. Mr. Dockins has presented more
than sufficient evidence "from which a reasonable factfinder could
conclude that [Benchmark] engaged in intentional age discrimina-
tion." Halperin v. Abacus Tech. Corp., 128 F.3d 191, 202 (4th Cir.
1997) (citation omitted).

Because, on this record, a genuine issue of material fact clearly
exists, Mr. Dockins's claim should be heard by a jury -- a right that
is guaranteed by the ADEA. 29 U.S.C. § 626(c)(2); Lorillard v. Pons,
434 U.S. 575 (1978). Consequently, I would reverse and remand for
a jury determination of whether the termination of Mr. Dockins vio-
lated the ADEA. I must respectfully dissent.
_________________________________________________________________
tion, which had all been "conclusively rebutted" at trial, in the face of
"overwhelming" evidence supporting the legitimacy of the reasons prof-
fered for her termination. Id. at 456-57. This is not the case here. The
question before us is simply whether or not Mr. Dockins has raised a
genuine issue of material fact to get to a jury. This he can do with deposi-
tion testimony alone. Gray v. Spillman, 925 F.2d 90, 95 (4th Cir. 1991).

                    14
