UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS A. CRAMER,
Plaintiff-Appellant,

v.
                                                                    No. 97-2775
INTELIDATA TECHNOLOGIES
CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CA-97-344-A)

Submitted: November 30, 1998

Decided: December 31, 1998

Before WILKINS and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey Peter O'Connell, LAW OFFICE OF JEFFREY P.
O'CONNELL, Fairfax, Virginia, for Appellant. Christine H. Perdue,
Elizabeth A. Lalik, HUNTON & WILLIAMS, McLean, Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Thomas A. Cramer appeals the district court's order granting sum-
mary judgment in favor of Intelidata Technologies Corporation
(Intelidata), formerly U.S. Order, and dismissing his claim of age dis-
crimination in violation of the Age Discrimination in Employment
Act (ADEA). See 29 U.S.C. §§ 621-634 (1994). Cramer filed this suit
following his termination from his position as vice-president for new
product development with Intelidata. Although Cramer's supervisors
explained that his termination was a result of Intelidata's financial
decision to eliminate his primary areas of responsibility with the com-
pany, Cramer believed that the adverse employment action was the
result of impermissible age discrimination.*

On this belief, Cramer filed his civil action. After significant dis-
covery, Intelidata filed a motion for summary judgment. The district
court concluded that Cramer could not prove his case either through
direct evidence of discrimination or establish a prima facie case to
raise a presumption of age discrimination. On this conclusion, the dis-
trict court granted summary judgment in favor of Intelidata and dis-
missed the action. Cramer appeals this final order.

This court reviews the grant of summary judgment in discrimina-
tion cases de novo. See Henson v. Liggett Group , 61 F.3d 270, 274
(4th Cir. 1995). Under the ADEA, an eligible employee can seek
redress for unfavorable employment action where the employee's age
was a determining factor in the action. See Tuck v. Henkel Corp., 973
F.2d 371, 374 (4th Cir. 1992). There are two avenues of proof by
_________________________________________________________________
*Cramer also brought state law claims for wrongful termination and
under the Virginia Human Rights Act. See Va. Code Ann. §§ 2.1-714 to
725 (Michie 1995 & Supp. 1998). The district court dismissed these
claims and Cramer has not challenged that ruling in this appeal.

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which an aggrieved employee can prove a violation of the Act. See
Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3623 (U.S. Mar. 17, 1997) (No.
96-1040). The first is by employing "ordinary principles of proof
using any direct or indirect evidence relevant to and sufficiently pro-
bative of the issue." Tuck, 973 F.2d at 374. To overcome Intelidata's
motion for summary judgment based on this first avenue of proof,
Cramer must produce "direct evidence of a stated purpose to discrimi-
nate [on the basis of age] and/or circumstantial evidence of a stated
purpose to discriminate [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., 836 F.2d 845, 848 (4th Cir. 1988)). The district court
concluded that Cramer had failed to present direct evidence that was
sufficiently probative to the issue of whether Intelidata had discrimi-
nated against him.

On appeal, Cramer contends that the district court erred in reaching
this conclusion. Cramer correctly notes that remarks by supervisors
may be direct evidence of age discrimination. See Wilhelm v. Blue
Bell, 773 F.2d 1429, 1433-34 (4th Cir. 1985). In doing so, Cramer
recounts the numerous comments regarding his age, hairpiece, den-
tures, and sexual ability that he alleges his immediate supervisor,
Joseph Smith, rained down on him.

Even assuming that the evidence Cramer presented in opposition to
Intelidata's motion for summary judgment was direct evidence of dis-
crimination, Intelidata was still properly entitled to summary judg-
ment. In order for the alleged discriminatory statements to be
probative of age discrimination, there must be a nexus between the
statements by Smith and the decision-making process. See Clay
Printing, 955 F.2d at 942 (explaining nexus requirement); see also
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.
1994) (noting insufficiency of "isolated" comments, even those of
decision-makers, to support finding of discrimination); Cone v. Long-
mont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (stating
that age-related comments made by non-decision-makers are not
material in showing action was based on age discrimination).

Cramer has failed to establish this nexus. Few of Smith's alleged
comments linked Cramer's age with his job performance. More

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importantly, Cramer's termination was based on Intelidata's decision
to eliminate the projects that constituted the majority of Cramer's
responsibilities with Intelidata. Consequently, the evidence of record
shows that Cramer's termination had nothing to do with Smith's per-
ception regarding Cramer's ability to perform his duties and every-
thing to do with the fact that the bulk of Cramer's duties would no
longer be a part of the work done by Intelidata. Cramer has the burden
to show "that age was a determining factor in the action in the sense
that but for [Intelidata's] intent to discriminate on the basis of age,
[Cramer] would not have been subjected to the employment action."
Clay Printing, 955 F.2d at 941 (internal quotation marks omitted). In
light of the stated reasons for his termination, this is a burden Cramer
failed to shoulder.

The second avenue by which a plaintiff may survive a motion for
summary judgment allows an employee to proceed in the absence of
direct evidence of discrimination pursuant to a modified version of
the proof scheme set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Under that scheme, an employee can establish
a prima facie case of age discrimination by showing that: (1) he is a
member of the protected age group (over 40 years old); (2) he suf-
fered an adverse job action; (3) he was performing at a level that met
his employer's legitimate expectations; and (4) there was adequate
evidence to create an inference that the adverse action was based on
the employee's age, including evidence that he was replaced by some-
one of comparable qualifications who was "substantially younger."
See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
313 (1996) (modifying the fourth element of the scheme); Burns, 96
F.3d at 731 n.1.

In this case, the district court concluded that Cramer had failed to
establish a prima facie case of discrimination under the modified
proof scheme because Cramer had failed to show either that he was
replaced by someone who was "substantially younger" or other evi-
dence to create an inference of an impermissible motivation. Because
his position was terminated contemporaneously with the decision not
to retain Cramer, Intelidata did not hire anyone to replace Cramer
after he was terminated. The person who assumed the duties that
remained following Cramer's termination was only five years youn-
ger than Cramer, and not therefore "substantially younger" than

                    4
Cramer in the absence of additional evidence. See O'Connor, 517
U.S. at 312.

Cramer strenuously objects to the district court's conclusion that
there was inadequate evidence to create an inference of an impermis-
sible motivation for Cramer's termination. Even assuming Smith's
comments were sufficient to create such an inference, the district
court did not err in granting summary judgment in favor of Intelidata.
If an employee establishes a prima facie case, the burden of produc-
tion then shifts to the defendant employer who can rebut the prima
facie case by presenting evidence of legitimate, non-discriminatory
reasons for its action. See Burns, 96 F.3d at 731 (quoting Tuck, 973
F.2d at 375). The employee must then show that the employer's prof-
fered reason was not the "true reason for the employment decision."
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993) (quoting
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256
(1981)). The burden of persuasion remains with the employee at all
times. See Burns, 96 F.3d at 731.

Once Intelidata meets its burden of production, Cramer "must bear
the burden of proving that he was the victim of intentional discrimina-
tion. He can do this by demonstrating that [Intelidata's] proffered rea-
son was a mere pretext and that, as between [his] age and
[Intelidata's] explanation, age was the more likely reason for the dis-
missal." Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988)
(citing EEOC v. Western Elec. Co., 713 F.2d 1011, 1014 (4th Cir.
1983)); see also Halperin v. Abacus Technology Corp., 128 F.3d 191,
201 (4th Cir. 1997). In this case, Intelidata met its burden of produc-
tion. There was ample evidence of record that Cramer's new product
and new business development projects, which made up the bulk of
his responsibilities, were eliminated as unproductive and unprofitable.
In light of the elimination of his duties, Intelidata terminated Cramer.
This reason meets Intelidata's burden of production.

Cramer suggests that the proffered reason was not the true reason
for his termination by suggesting that Intelidata underrepresents his
role in the company. In support of this contention, Cramer points to
his position description published by Intelidata shortly before his ter-
mination. Cramer claims on appeal that the responsibilities Intelidata
eliminated accounted for only ten percent of his time. However,

                     5
Cramer testified in his deposition that his time spent on new product
development was more than fifty percent and twenty-five to thirty
percent on new business development. This leaves less than twenty-
five percent to the projects that Cramer contends Intelidata has
ignored in deciding to terminate his position.

In attempting to show that Intelidata's proffered reason was pretex-
tual, Cramer questions the wisdom of abandoning new business and
sales development in a company that has recently been unprofitable.
Cramer also attacks the "simplistic" nature of Intelidata's proffered
reason. However, the crucial issue in an ADEA action is an unlaw-
fully discriminatory motive for a defendant's action, not the wisdom
or folly of its business judgment. See Jiminez v. Mary Washington
College, 57 F.3d 369, 383 (4th Cir. 1995).

Cramer notes that two of his product development projects contin-
ued for some period after Intelidata terminated his position. The
record demonstrates that Intelidata at least engaged in the "winding
down" of those projects after Cramer's termination. This evidence
does not create an issue of material fact with respect to whether Inteli-
data's proffered reason for Cramer's termination was false. As a
result, even assuming that the evidence of Smith's allegedly inappro-
priate comments was sufficient to create an inference of an impermis-
sible motivation for Cramer's termination, Cramer has failed to show
that the proffered legitimate business reason for the employment
action was merely pretext. The district court did not err in concluding
that summary judgment was appropriate.

Because Cramer failed to present sufficient evidence of illegal age
discrimination either through direct evidence or the modified
McDonnell Douglas proof scheme, we find that the district court did
not err in granting summary judgment for Intelidata and dismissing
the action. The district court's order is hereby affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the Court and argument
would not aid the decisional process.

AFFIRMED

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