UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DON E. DENIO,
Plaintiff-Appellant,

v.
                                                                        No. 95-1904
ASPLUNDH TREE EXPERT COMPANY, a
Pennsylvania corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
James C. Turk, District Judge.
(CA-94-41-L)

Argued: April 4, 1996

Decided: July 30, 1996

Before MOTZ, Circuit Judge, TRAXLER, United States District
Judge for the District of South Carolina, sitting by designation, and
PAYNE, United States District Judge for the Eastern District of
Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Ernest Falcone, SMITH & FALCONE, Lynchburg,
Virginia, for Appellant. Temple Witt Cabell, SCHAFFER & CAB-
ELL, P.C., Richmond, Virginia, for Appellee. ON BRIEF: Heidi E.
Henderson, SCHAFFER & CABELL, P.C., Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Don E. DeNio brought this age discrimination action against his
former employer, Asplundh Tree Expert Company, alleging that he
was unlawfully terminated in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1994). The jury
returned a verdict in favor of DeNio, awarding him $30,800 in dam-
ages. Asplundh moved for judgment as a matter of law. The district
court granted the motion and DeNio appealed. We affirm.

I.

DeNio, age 53, had been employed with Asplundh Tree Expert
Company for twenty-seven years when he was discharged from his
position as a supervisor in the "parts call-in" department. DeNio
began his career as a shop mechanic, and later worked as a forklift
operator, a stockroom clerk, an inspector and an aerial lift foreman,
until he was ultimately promoted to supervisor of the parts call-in
department.

The parts call-in department consisted of two employees in addi-
tion to DeNio: Reginald Williams, age 29, and Anthony Taylor, age
30. It is uncontroverted that the duties of the three employees, except
for DeNio's supervisory responsibilities, were identical. Each
answered telephone calls from around the world concerning problems
with Asplundh equipment and helped the callers to resolve those
problems. However, DeNio had far more experience with Asplundh
than Williams and Taylor and received a much more generous salary
and benefits. All three employees in the parts call-in department,
including DeNio, were in turn supervised by Richard Gilbert, age 37,
whose title was Call-In Supervisor and Rental Fleet Supervisor. Gil-
bert was supervised by Carl Paugh, age 54, who was the general man-
ager of the plant.

                    2
In August 1993, Paugh and Gilbert began to consider the problem
of over-staffing in the parts call-in department. They agreed that one
position in the department had to be eliminated; they selected DeNio
for discharge. Asplundh conceded that performance and skill were not
at issue in the decision to discharge DeNio. In addition, at oral argu-
ment in this case, the company specifically disavowed cost and
DeNio's higher salary as a motivating factor in its decision. The com-
pany asserts instead that DeNio's dismissal was based on its decision
to eliminate a supervisor position.

To prove that the company's stated reason for firing him was pre-
textual, DeNio offered evidence that all three employees in the parts
call-in department performed similar duties and that his supervisory
role was minimal. Moreover, DeNio testified that when notified of his
discharge, he pleaded with his supervisors, on at least two occasions,
to place him in a lower-paying non-supervisory position rather than
discharge him. Although Asplundh refused to consider DeNio for
these positions, the company hired nineteen new employees at the
time of his discharge or shortly thereafter. DeNio maintained that he
was qualified to perform several of the nineteen available jobs.

Asplundh conceded that it hired nineteen new employees at the
same time it discharged DeNio. The company did not claim that
DeNio was unqualified for all nineteen positions. However, company
witnesses did testify that they offered DeNio an hourly position as a
second shift stockroom clerk and that DeNio never accepted the posi-
tion.

As further indication that Asplundh's proffered reason for his ter-
mination was pretextual, DeNio offered evidence that during the
period in question, the company was very successful financially and
was expanding worldwide. DeNio also presented evidence of alleg-
edly discriminatory statements in the company's published magazine,
The Asplundh Tree. In an article entitled"A Progress Report: Issues,
Innovations and Improvements," the company stated that it was expe-
riencing a "youth trend" among its managerial employees, with the
average age of management falling from 52 years old in 1988 to 44
years old in 1993.

The trial before the district court lasted two days. At the conclusion
of DeNio's case, Asplundh moved for judgment as a matter of law.

                    3
The court, noting that DeNio's case was "weak," nonetheless denied
the motion. At the end of its own case, Asplundh renewed its motion;
the court again denied it and submitted the case to the jury. The jury
awarded DeNio $30,800 in damages. Asplundh moved again for judg-
ment as a matter of law, which the court then granted.

II.

In considering a motion for judgment as a matter of law, the
reviewing court is to apply the same standard as the trial court. Thus
"viewing the evidence in the light most favorable to the non-moving
party and giving him the benefit of all reasonable inferences," a court
must determine if "there is sufficient evidence in the record to support
a jury verdict in his favor." Herold v. Hajoca Corp., 864 F.2d 317,
319 (4th Cir. 1988) (citations omitted), cert. denied, 490 U.S. 1107
(1989). A court may not weigh the evidence anew, reassess the credi-
bility of witnesses, or base its decision on materially contradicted evi-
dence. Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1348 (4th Cir. 1990), cert.
denied, 499 U.S. 960 (1991); Herold, 864 F.2d at 319. However, in
ADEA cases, a court must verify that the jury's verdict was based on
evidence demonstrating a "reasonable probability" and not merely a
possibility of age discrimination. Lovelace v. Sherwin-Williams Co.,
681 F.2d 230, 242 (4th Cir. 1982).

A plaintiff can prove an ADEA violation in one of two ways.
EEOC v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). First,
a plaintiff can offer direct and circumstantial evidence that he would
not have been discharged but for his age; the evidence must be of suf-
ficient probative force to support an inference of discrimination.
Goldberg v. B.Green & Co., 836 F.2d 845, 847 (4th Cir. 1988);
Taylor v. Home Insurance Co., 777 F.2d 849, 854 (4th Cir. 1985),
cert. denied, 476 U.S. 1142 (1986). Second, a plaintiff may use the
McDonnell Douglas scheme of shifting burdens applied in Title VII
cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Under this scheme, once the plaintiff has established a prima facie
case of age discrimination, the burden shifts to the employer to articu-
late a legitimate nondiscriminatory reason for its employment deci-
sion. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07
(1993); Lovelace, 681 F.2d at 239. If the employer meets this burden,

                     4
the plaintiff must then show that the employer's proffered reason was
mere pretext and that age was the more likely reason for his dismissal.

In Lovelace, we explained the sequence of analysis in "ruling upon
an evidence sufficiency motion at the conclusion of all the evidence
in a jury trial of an ADEA case" as follows:

          The first question is whether plaintiff's evidence may have
          carried the original production burden without need to
          invoke the McDonnell-Douglas presumption. . . . If this is
          the judicial assessment, inquiry of course ceases, no further
          production burdens are put in play, and the motion can be
          denied. If, on the other hand, the plaintiff's evidence fails
          even to support the unadmitted predicates of the presump-
          tion so that it may not be invoked to carry this original bur-
          den, inquiry similarly ends and the motion can be granted.

Lovelace, 681 F.2d at 240. Accordingly, we now proceed to this anal-
ysis.

III.

The first Lovelace question is whether DeNio carried the original
production burden without the need to invoke the McDonnell Douglas
presumption. Lovelace, 681 F.2d at 240. As the district court recog-
nized, DeNio offered three kinds of evidence that he claimed met this
burden.

A.

First, DeNio introduced evidence that Asplundh fired him because
it wanted to eliminate the cost of his comparatively high salary and
benefits. He further offered evidence that this higher salary was "pri-
marily a function of age." On appeal, Asplundh repeatedly asserted
that it did not discharge DeNio because he was a salaried employee
who was paid approximately twice as much as his two younger col-
leagues in the parts call-in department. But there was evidence before
the jury -- including testimony from some company officials -- that
this was, indeed, the reason DeNio was discharged. Accordingly, the
jury was entitled to so conclude.

                    5
However, notwithstanding DeNio's assertions (and perhaps the
company's fears), this evidence does not prove age discrimination.
The Supreme Court has expressly held that an employer does not vio-
late the ADEA "by acting on the basis of a factor, such as an employ-
ee's pension status or seniority [or salary], that is empirically
correlated with age." Hazen Paper Co. v. Biggins, 507 U.S. 604, 608-
09 (1993). Even though age is often related to factors such as salary,
it is "analytically distinct" from them. Id. at 611. For this reason, "an
employer can take account of one while ignoring the other." Id. More-
over, "[w]hen the employer's decision is wholly motivated by factors
other than age, . . . [e]ven if the motivating factor is correlated with
age," that decision is not contrary to the ADEA. Id. at 611.1 Accord-
ingly, even if DeNio was fired simply because Asplundh desired to
reduce its salary costs, this was not evidence of age discrimination.

B.

DeNio also testified that when he was discharged, he told his
supervisors that he would take "any job" in the plant, including a
much lower-paying hourly non-supervisory position. The company
supervisors testified at trial that they did not remember this and that
they did offer DeNio an hourly position, which he did not take. How-
ever, the jury was certainly entitled to credit DeNio's testimony on
this point -- particularly in light of the supervisors' conflicting depo-
sition testimony. But again, contrary to DeNio's arguments, the jury
was not entitled to infer from the company's refusal to consider him
for an alternate position, that it had discharged him because of age.
DeNio had no contractual or other right to employment with
Asplundh. The company was entitled to fire him for a good reason,
a poor reason, or no reason at all -- as long as the company did not
fire him for an illegal reason. If the company did not fire DeNio for
_________________________________________________________________
1 DeNio's reliance on two pre-Hazen Paper cases, Tuck v. Henkel
Corp., 973 F.2d 371 (4th Cir. 1992), cert. denied, 507 U.S. 918 (1993)
and Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir. 1987) is mis-
placed. Metz, which is directly contrary to Hazen Paper, is, as the Sev-
enth Circuit itself has recently recognized, no longer good law. See
Anderson v. Baxter Health Care Corp., 13 F.3d 1120, 1125-26 (7th Cir.
1994). Similarly, to the extent that Tuck is contrary to Hazen Paper, it
too is no longer good law.

                     6
an illegal reason, like age discrimination, then it was not required to
re-employ him. Providing DeNio with an available lower-paying
position certainly seems the least the company could have done for
an employee who had given it twenty-seven years of unblemished ser-
vice. Failure to do this may well constitute evidence of unkindness
and poor management; it does not, however, constitute evidence of
age discrimination.

C.

The third piece of evidence that DeNio offered to support his claim
of age discrimination, without need to invoke the McDonnell-Douglas
presumption, was evidence that he contends demonstrates a "pattern
and practice of age discrimination." This evidence consisted of: (1)
the company's statement in its official publication that there had been
a "youth trend" in the "management team;" (2) testimony of an "un-
written policy of requiring employees to retire at age 65;" and (3) the
fact that the former plant manager had been replaced when he was
fifty-one by a twenty-nine year old man.

This evidence demonstrates little. Statements that merely make
observations of a generational change without suggesting that older
employees ought to be replaced by more youthful ones are not suffi-
cient to infer discrimination. See Birbeck v. Marvel Lighting Corp.,
30 F.3d 507, 511-12 (4th Cir.)(employer's statement that "there
comes a time when we have to make a way for younger people" cre-
ated no inference of age bias), cert. denied, ___ U.S. ___, 115 S. Ct.
666 (1994); Clay Printing, 955 F.2d at 942. In addition, DeNio's
argument is further undermined by his failure to show a causal nexus
between his dismissal and any of this evidence. See Birbeck, 30 F.3d
at 511-12; Rea v. Martin Marietta Corp., 29 F.3d 1450, 1450 (10th
Cir. 1994) (employee must show nexus between employer's comment
and adverse action toward him).

* * * * *

Thus, we must conclude here, as we did in Lovelace, that
"[a]ssessed independently of the [McDonnell-Douglas] presumption,
we are satisfied that this circumstantial evidence does not suffice to
support as a reasonable probability the inference that but for claim-

                    7
ant's age he would not have been" discharged. Lovelace, 681 F.2d at
243. Having considered DeNio's claim based simply on the direct and
indirect evidence he put forth, we move now to determine whether he
is entitled to the presumption of discrimination under the McDonnell
Douglas scheme.

IV.

Under the original McDonnell Douglas scheme, an employee alleg-
ing race discrimination could establish a prima facie case by showing:

          (i) that he belongs to a racial minority; (ii) that he applied
          and was qualified for a job for which an employer was seek-
          ing applicants; (iii) that, despite his qualifications, he was
          rejected; and (iv) that, after his rejection, the position
          remained open and the employer continued to seek appli-
          cants from persons of complainant's qualifications.

McDonnell Douglas, 411 U.S. at 802. Noting Justice Powell's admo-
nition that the McDonnell Douglas test would vary in factually dis-
tinct Title VII contexts, id. at 802 n.13, we have applied a modified
version of the McDonnell Douglas scheme in the context of ADEA
reduction in force cases. To establish a prima facie case, an ADEA
plaintiff must show that (i) he is in the protected age class, (ii) he was
discharged, (iii) at the time of his discharge, he was performing his
job at a level that met his employer's legitimate expectations, and (iv)
persons of his qualifications were retained in the same position or
there was some other evidence that the employer did not treat age
neutrally in deciding to dismiss plaintiff.2 See Herold, 864 F.2d at
319; Sailor v. Hubbell, Inc., 4 F.3d 323, 326 (4th Cir. 1993).

It is undisputed that DeNio established the first three prongs of the
prima facie test. DeNio was a member of the protected age group; he
_________________________________________________________________
2 We have altered the language of this test's fourth prong to conform
with the Supreme Court's recent decision in O'Connor v. Consolidated
Coin Caterers Corp., 64 U.S.L.W. 4243, 4244 (April 1, 1996), which
held that a retained or replacement worker need not be outside of the
complainant's protected class in order for the complainant to invoke the
McDonnell Douglas presumption.

                     8
was discharged; and he satisfactorily performed his job at a level that
met Asplundh's expectations. In considering the fourth prong, the dis-
trict court found that no other person with DeNio's qualifications was
retained in the same position as DeNio.

DeNio claims that this was error in view of the uncontroverted tes-
timony that at the time of his discharge there were only three individ-
uals in the parts call-in department: DeNio (age 53), Williams (age
29), and Taylor (age 30), and all three performed essentially the same
tasks, the only differences being that DeNio was far more experi-
enced, substantially better paid (a weekly rather than an hourly
employee) and had limited supervisory responsibilities over the other
two. DeNio asserts that since his parts call-in duties were assumed by
Williams and Taylor, both of whom were under 40, and his supervi-
sory duties were assumed by the person who had been his immediate
supervisor, Gilbert, who was also under 40, these employees were
"retained" by the company in the "same position" that DeNio had held
and all of them were outside the protected age class.

The problem with this argument is that neither Williams, nor Tay-
lor, nor Gilbert was retained in the same position that DeNio had
occupied. DeNio's position was a worker in the parts call-in depart-
ment with supervisory responsibilities (and commensurate salary ben-
efits) over the two less experienced hourly employees in that
department, Williams and Taylor. No one was retained in that posi-
tion. Following DeNio's discharge, Williams and Taylor each
retained their own positions as hourly-paid employees, without super-
visory responsibilities or weekly pay and benefits, in the parts call-in
department. Gilbert retained his own position as Call-In Supervisor
and Rental Fleet Supervisor, supervising not only the parts call-in
department but also the rental fleet department, just as he had before
DeNio's discharge.

On appeal, DeNio seeks to emphasize the similarities between his
position and those of Williams and Taylor, the other parts call-in
department employees. He asserts that, in view of his minor supervi-
sory responsibilities, Asplundh's testimony that it dismissed him
because it wanted to eliminate a supervisory position is pretextual.
However, DeNio's status as a supervisory employee, with a weekly
salary and benefits, has been crucial to his case until now. In his com-

                    9
plaint, he denominates himself as a "foreman" and asserts that he was
the "oldest management employee" at the plant when he was fired. At
trial, he solicited and relied on testimony that no other supervisor was
contemporaneously terminated or demoted, that one employee was
promoted to supervisor, that the company heralded a"youth trend" in
its management team, and that the fifty-one year old plant manager
was replaced by a twenty-nine year old man. DeNio testified in some
detail to the hardship caused by the loss of his well-paying salaried
position and his inability to obtain commensurate employment. He
sought and obtained damages from the jury based on this loss.
DeNio's present attempt to claim that he really was not a supervisor
and should not be regarded as one is contrary to his own complaint
and the evidence.

In sum, DeNio failed to show that other employees were retained
in his position. Moreover, for the reasons discussed in part III, there
was no other evidence sufficient to meet the fourth element of the
McDonnell Douglas prima facie test.

V.

For these reasons, the district court properly granted Asplundh's
motion for judgment as a matter of law.

AFFIRMED

PAYNE, District Judge, dissenting:

As the holder of a jury verdict in his favor, DeNio is entitled to the
benefit of all inferences which reasonably can be drawn from the facts
proved at trial. I respectfully submit that the majority opinion does not
extend to DeNio the benefits of the inferences to which he is entitled
and, for the reasons set forth below, I would reinstate the jury's ver-
dict and enter judgment on it for DeNio.

Before addressing the record respecting the termination of DeNio's
employment, it is necessary briefly to sketch the context in which it
occurred. In January 1993, Asplundh relocated its parts call-in depart-
ment from the company's headquarters in Willow Grove, Pennsylva-

                     10
nia to its Lynchburg facility where DeNio had been employed for
several years. The parts call-in department fell under the jurisdiction
of Richard Gilbert, age 38 (J.A. 49), whose title was Rental Fleet
Supervisor (J.A. 118). Gilbert reported to Carl Paugh, who was 54
years old and served as General Manager of Asplundh's Equipment
Department which was located at Asplundh's headquarters in Penn-
sylvania.

Although Asplundh does not assert that the termination of DeNio's
employment was a part of a formal reorganization, reduction in force
or other corporate restructuring, it is pertinent to know that, until Jan-
uary 1993, the parts call-in department was part of Asplundh's manu-
facturing division which was sold in early 1993. The employees in the
manufacturing division lost their jobs upon completion of the sale.
However, Paugh was assigned to Asplundh's headquarters and Gil-
bert was assigned to Asplundh's Lynchburg facility. In early 1993,
Asplundh also closed its Des Moines, Iowa plant and laid off all
employees there except the Des Moines plant manager, Mark Shar-
man, who took over in August 1993 as plant manager of the Lynch-
burg facility. (J.A. 163-66).

When Gilbert went to the Lynchburg facility in late 1992, Paugh
decided to relocate the parts call-in department from Pennsylvania to
Lynchburg. Paugh placed the department under Gilbert's control.
(J.A. 167-68). At about the same time, DeNio's job as foreman in the
aerial lift department at Lynchburg was eliminated. (J.A. 90). At Gil-
bert's direction, DeNio, who then was 53 years old and who had com-
pleted 27 years of satisfactory service in different capacities, was
transferred to the parts call-in department. (J.A. 92, 168). Also at Gil-
bert's direction, DeNio selected Reginald Williams, age 29, and
Anthony Taylor, who was 30, as the other two members of the depart-
ment. (J.A. 92). All three men, who, until their transfer to the parts
call-in department, were employed elsewhere in the Lynchburg facil-
ity, did essentially the same work: answering telephone calls respect-
ing problems, mostly for other Asplundh employees, about Asplundh
equipment. However, because DeNio was more experienced than
Williams and Taylor, he also served as their supervisor. (J.A. 46, 50).

In mid-August 1993, approximately one month before DeNio was
fired, Asplundh demoted Jon Heffner, who was then 51, as plant man-

                     11
ager at Lynchburg. Asplundh replaced Heffner with Sharman who
was then 29. (J.A. 223). Also, in mid-August, Paugh had a general
discussion with Gilbert about staffing levels because Asplundh was
contemplating acquisition of another company and, if the acquisition
materialized, many of the new employees would be located at the
Lynchburg facility. (J.A. 170). That discussion produced a memoran-
dum from Gilbert and Heffner to Paugh dated August 20 which, in
pertinent part, stated:

         Jon [Heffner] and I feel that we are overstaffed in our parts
         call-in department. . . . We recommend a reduction of one
         person in this department.

(J.A. 313) (emphasis added). The reason proffered to support that
conclusion was:

         The men [DeNio, Williams and Taylor] that are fielding the
         phone calls are receiving about 50% product bulletin calls
         and 50% field unit calls. This percentage will change since
         the calls on the product bulletin are gradually tapering off.

***

         Even though we realize that each person in this department
         must take a phone call, fill out a form . . . and fax this infor-
         mation, we still believe that this department is overstaffed.

(J.A. 313) (emphasis added).

Eleven days later, on August 31, Paugh replied by memorandum
addressed to Gilbert:

         I am in agreement with your assessment of the personnel
         requirements for the Call-In Service.

***

         Please make the necessary arrangements to establish the
         work force at the desired level.

                    12
(J.A. 314). These contemporaneous documents respecting staffing in
the parts call-in department unambiguously reflect that, for both Gil-
bert and Paugh, the focus was on the total number of employees in
the three-employee parts call-in department.

At about the same time, Asplundh went to press with the 65th anni-
versary issue of The Asplundh Tree, a company magazine that was
distributed to 25,000 employees and customers. (J.A. 321-46). The
first article in the publication is entitled "A Progress Report: Issues,
Innovations and Improvements," which begins with the statement
that: "Anniversaries are a good time to look back at past accomplish-
ments, as well as at current issues, innovations and improvements."
(J.A. 322). After cataloging information about growth of the com-
pany, the role of environmental issues, and the company market, the
article declares: "Since 1988, there have been many changes in
Asplundh's management team," including "17 retirements and more
than 40 manager changes," some of which were attributable to the
ascension of younger members of the Asplundh family. The article
then states that:

          There has been [sic] overall youth trend with the average
          age of our management team being 44 years old. Five years
          ago, the average age was approximately 52.

(J.A. 322) (emphasis added).1

At 4:00 p.m., on September 10, 1993, DeNio was summoned to
Gilbert's office and, according to DeNio, Gilbert said:

          As of today you no longer work for the company. You're
          terminated.

(J.A. 54). When, DeNio asked the reason, Gilbert said:
_________________________________________________________________
1 Kristin Wild, the author of this article testified that this passage
referred only to members of the Asplundh family in top management
(J.A. 282), but, on cross-examination, Wild's explanation for this inter-
pretation was attacked vigorously. (J.A. 282-87). The jury, of course,
was entitled to credit or reject Wild's testimony on this issue.

                     13
          Because Carl Paugh says we've got to get rid of you, elimi-
          nate your job.

(J.A. 54). No further explanation was provided. (J.A. 109).

Aware that the company was in the process of hiring other employ-
ees, DeNio immediately offered to take any job, salaried or hourly.
(J.A. 54). According to DeNio, Gilbert replied:"[w]ell, we're not
going to hire you. We don't have nothing available." (J.A. 54). On the
next work day, DeNio also told Sharman that: "I'll take any kind of
hourly job, any kind of job you've got. I don't care whether it's clean-
ing toilets, you know." (J.A. 55). DeNio recounted Sharman's reply:
"[w]ell, we don't have no jobs available." (J.A. 55). This reply struck
DeNio as strange considering that, as DeNio exited Sharman's office
(J.A. 55), he observed aspiring employees completing employment
applications. Asplundh admits that, at the time, it was hiring new
employees. (J.A. 231).

After DeNio left Asplundh's employment, Williams and Taylor
continued to function in the same fashion as before. Gilbert assumed
the supervisory responsibilities, such as they were, which DeNio had
exercised over Williams and Taylor. (J.A. 62).

At the time of his termination, DeNio was the oldest management
employee at the Lynchburg facility. (J.A. 49). However, at 53, DeNio
was twelve years away from Asplundh's retirement age of 65. (J.A.
65). His annual salary was $36,000 per year. Taylor and Williams
were hourly employees who earned about one-half that amount. (J.A.
63-64).

On October 5, 1993, DeNio filed an age discrimination complaint
with the EEOC. Thereafter, Sharman, acting at the direction of his
superior in Asplundh's headquarters, offered DeNio a position as sec-
ond shift stockroom clerk at $10.00 per hour. However, the record is
clear that the proffered position did not exist at the time it was offered
or thereafter. (J.A. 220-21, 229). According to DeNio, he agreed to
accept the job if he could continue to pursue the EEOC complaint, but
Sharman refused. (J.A. 60-61). Sharman testified that no such condi-
tion was attached to the offer or was discussed. (J.A. 234).

                     14
At trial, Gilbert was called to testify by DeNio and by Asplundh.
However, in neither appearance did Gilbert explain why he fired
DeNio. Nor did Gilbert dispute DeNio's description of the conversa-
tion of September 10 in which he ended DeNio's employment.
Indeed, Gilbert's cameo appearances served mostly to confirm that
the position which Sharman offered to DeNio did not exist at the time
it was offered or subsequently. (J.A. 217, 220-21). Gilbert, however,
denied that the offer for this non-existent position was conditioned on
DeNio's withdrawal of the EEOC complaint. (J.A. 218).

The only Asplundh witness who testified about the reason for ter-
minating DeNio's employment was Paugh even though he conceded
that it was Gilbert's decision and responsibility to make the personnel
reduction in the parts call-in department (J.A. 131). Notwithstanding
the exchange of correspondence between him and Gilbert in August
which focused on the total number of employees in the department,
Paugh asserted that the decision to fire DeNio was made because of
the "cost of salaried supervision" in the parts call-in department." In
fact, at one point in his testimony Paugh claimed that there were four
salaried supervisors in the parts call-in department (J.A. 173), not-
withstanding that all other evidence showed that the department con-
sisted of only three employees: DeNio, Taylor and Williams, only one
of whom had any supervisory duties and that Gilbert, the Rental Fleet
Supervisor, was DeNio's supervisor. (J.A. 137). 2 Paugh also said that
DeNio's supervising duties were eliminated and the rest of the people
[e.g. Williams and Taylor] carried DeNio's load. (J.A. 141). Finally,
Paugh made the ambiguous assertions that "I was reducing salary"
(J.A. 147) and that DeNio's supervisory position was not needed (J.A.
174) because the call-in service department was overstaffed with
supervisory people. (J.A. 175, 180).
_________________________________________________________________

2 Asplundh makes a half-hearted assertion that Sykes was a supervisor
even though Sykes testified that he was not. And, Asplundh suggests that
Gilbert was a supervisor in the parts call-in department even though he
actually was in charge of it as well as other operations at the Lynchburg
facility and took on the supervision of Williams and Taylor after DeNio
left. It is difficult to understand who it was that Paugh considered to be
the fourth supervisor.

                    15
The rationale offered by Paugh, of course, was different than that
reflected in the exchange of memoranda in August which defined the
personnel problem as too many employees -- not the number of, or
the salary associated with, supervisory positions-- in the department.
Nor is it consistent with the fact that there were no supervisors in the
call-in department in September of 1993 other than DeNio.

Finally, the undisputed record is that, at the time DeNio was fired
and when he was asking for "any other employment" -- salaried or
otherwise -- and for several months thereafter, Asplundh hired 19
people at the Lynchburg plant. (J.A. 175-76, 319). It is also undis-
puted that the company was prosperous and growing throughout the
same period.

Taken as a whole and giving DeNio the benefit of all inferences,
the record shows that, about the time that Asplundh fired DeNio, it
announced as a significant development in the company that it had
reduced the average age of management 8 years (52 to 44) during the
5 year period 1988 to 1993. The article reasonably can be interpreted
as describing that result to be an "accomplishment" or an "improve-
ment." Of course, it also can be interpreted to read as its author says
it was intended (see n.1, supra). However, that was for the jury to
decide and, if the jury rejected the author's testimony, it was entitled
to infer that age was a factor in Asplundh's decisions respecting the
continued employment of managerial employees. Then one month
before it fired DeNio, Asplundh demoted the 51 year old Lynchburg
plant manager and replaced him with a 29 year old. It was in this con-
text that the company released DeNio who, at the time, was the oldest
remaining employee with managerial responsibilities at the Lynch-
burg plant. In perspective of the company's expressed view that a
reduction in the average age of managers was an"accomplishment"
or an "improvement" and its replacement of the 51 year old plant
manager with a substantially younger person, the jury could infer that
age was a motivating factor in the decision to fire DeNio.

Those facts and inferences also must be considered in perspective
of the proof that: (1) DeNio had served satisfactorily for 27 years in
several capacities; (2) DeNio was the most knowledgeable and expe-
rienced of the three possible candidates for release in his department;
and (3) DeNio was substantially older than the two employees whom

                     16
Asplundh retained to do essentially the same job DeNio was doing.
And, all of these facts must be assessed in perspective of the fact that
the company refused DeNio's offers to accept any employment, sala-
ried or hourly, at lower pay while, at the same time, it was hiring 19
other people.

These facts further support the already existing reasonable infer-
ence that DeNio's age was a motivating factor because employers
usually find it is their best interest to retain experienced employees
over less experienced ones. Further, where the more experienced
employee has been a satisfactory performer (and lack of performance
is not even an issue), it is reasonable to conclude that the decision to
keep a younger, less experienced employee and to release a more
experienced, satisfactory performer who is older is in part motivated
by age. When this inference is considered in perspective of the other
evidence, DeNio, I think, has made his case under either the direct or
formulaic modes of proof available to an ADEA plaintiff. Under the
direct evidence test, the evidence shows that age was a factor. Under
the judicial burden shifting scheme, the evidence permits the infer-
ence that the employer did not treat age neutrally.

DeNio asserts that there is also evidence of age discrimination in
the fact that his salary was twice that of the two employees in the
department who were retained and, hence, that, in the decisional pro-
cess, high salary was a euphemism for age. As the majority points
out, Asplundh asserts on appeal that the higher cost of DeNio's salary
was not a factor in the decision (which Asplundh contends to have
been based solely on the theory that there were too many supervisors
in the parts call-in department). That argument, of course, ignores
completely Paugh's testimony which focuses on the high cost of
supervisory salaries as the reason for the decision. Of course, if we
hold Asplundh to the assertion which it makes on appeal, then
DeNio's higher salary is not an issue.

If, however, we consider Paugh's testimony, DeNio's high salary
was the motivating factor in Asplundh's decision. The majority says
that, because of the decision in Hazen Paper Co. v. Biggins, 507 U.S.
604, 608-09 (1993), dismissal for the purpose of reducing salary costs
is not discrimination. If the only evidence offered by DeNio were the
"analytically distinct" factor of DeNio's higher salary, I would agree

                     17
that Hazen would preclude his claim. But, as explained above, the sal-
ary factor is but one facet of DeNio's proof. The balance of his evi-
dence is the company's written acknowledgement, near the time of
the discharge, that reduction in the age of management was an "ac-
complishment" or an "improvement" in the company's eyes; its action
in demoting a 51 year old plant manager at DeNio's facility and
replacing him with a man 27 years younger; its almost simultaneous
decision to fire the oldest, most experienced man in the parts call-in
department; and its refusal to re-employ him in any other job while
hiring others in a time of corporate prosperity.

Faced with that evidence, Asplundh was required, under either
mode of proof scheme, to go forward to establish a legitimate non-
discriminatory reason for discharge. I think that the company utterly
failed in that burden.

For example, notwithstanding Paugh's testimony that the depart-
mental staffing decision was Gilbert's to make, Asplundh chose to
base its defense on Paugh's testimony that DeNio was released
because there was too many supervisors in the parts call-in depart-
ment, pointing to DeNio, Sykes and Gilbert as the three supervisors.
Sykes, of course, admitted that he was not a supervisor at all. Gilbert
was not a supervisor in the department. Rather, he was in charge of
the department because it fell within his area of responsibility in the
organization of the Lynchburg plant. In fact, it was not until after
DeNio left that Gilbert took on any supervision of Williams and Tay-
lor. The employer's proffered reason is thus non-sensical on its face
because there was only one supervisor in the parts call-in department
-- DeNio -- and the employer did not say it needed no supervisors.

That is particularly the necessary result where, as here, the employ-
er's contemporaneous business records documenting the personnel
situation do not even mention an oversupply of supervisors, but
instead refer only to the total number of employees. 3 It is no wonder
that the jury found the company's defense to be without support.
_________________________________________________________________
3 In that regard, the jury was entitled to note that, although Gilbert was
called to testify both by DeNio and Asplundh, the company never asked
him to explain the contemporaneous business documents he authored
which were the company's theory of defense at trial. That, of course,
bears on the credibility of the company's defense.

                    18
That leaves Asplundh with the high-cost of supervisory salary the-
ory as its non-discriminatory reason. If we overlook the previously
identified frailties with this position (which, of course, Asplundh
eschewed during oral argument so as to cling to the"excessive num-
ber of supervisors" theory), then Asplundh has tendered its non-
discriminatory reason.

However, DeNio has offered evidence that this high cost of super-
visor salary theory is pretextual. He has shown, first, that the contem-
poraneous documents respecting staffing in the department simply do
not even mention this as a reason for staff reductions. But, even if we
interpret those documents as defining the sole motivation for the ter-
mination decision to be the high cost of supervisory salaries, then the
theory is destroyed by DeNio's undisputed evidence that, on Septem-
ber 10 and 13, Asplundh refused DeNio's unconditional offers to
accept any job while Asplundh, in a time of corporate plenty, hired
19 other people. Under those circumstances, the reason for the dis-
charge is shown not to have been viable. On this record, a jury rea-
sonably could have found that Asplundh's reason was pretextual and
accepted that a, if not the, real reason for DeNio's discharge was his
age which manifested itself as an irritant to the employer because of
his high salary. When that factor is considered with the other evidence
outlined above, the jury properly could return a verdict for DeNio.
Hence, I respectfully submit that the verdict should be reinstated.

                    19
