UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-2331

DEBORAH T. RUFF,

Plaintiff - Appellant,

versus

TARGET STORES, Incorporated,

Defendant - Appellee.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,

District Judge. (CA-04-54-3)

Argued: January 30, 2007 Decided: March 14, 2007

Before WIDENER, WILLIAMS, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Williams wrote the opinion,

in which Judge Widener concurred. Judge Shedd wrote a separate

concurring opinion.

ARGUED: Jenny Lu Sharpe, Charlotte, North Carolina, for Appellant.

Raymond Charles Baldwin, SEYFARTH & SHAW, L.L.P., Washington, D.C.,

for Appellee. ON BRIEF: Jessica R. Hughes, SEYFARTH & SHAW,

L.L.P., Washington, D.C., for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

WILLIAMS, Circuit Judge:

Deborah Ruff appeals the district court’s grant of summary

judgment to Target Stores, Inc. (“Target”) on Ruff’s claims of age

discrimination in violation of the Age Discrimination in Employment

Act (“ADEA”), 29 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2006), and

the North Carolina Equal Employment Practices Act, N.C. Gen. Stat.

§ 143-422.2 (2005). Ruff argues that the district court erred in

finding that she could not show that she was meeting Target’s

legitimate expectations or that Target’s justification for

terminating her was pretextual and in concluding that she could not

proceed under the “mixed-motive” framework established by the

Supreme Court in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),

because she lacked direct evidence of age discrimination. Because

Ruff has not provided evidence that would allow a reasonable jury

to determine that Target discriminated against her on the basis of

age, we affirm.

I.

Because this is an appeal from the district court’s grant of

summary judgment to Target, we review the facts in the light most

favorable to Ruff. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (noting that all evidence must be construed in the

light most favorable to the party opposing summary judgment).
1

Target stores generally have ETLs for the following

departments: hardlines, softlines, guest services, logistics, and

team relations, although the total number of ETLs in a given store

may vary by the size and sales volume of the store.

2

Citations to the “J.A.” refer to the joint appendix filed

with this appeal.

3

In 1990, Ruff was hired as an area manager at a Target store

in Gastonia, North Carolina. Her job required her to manage a

particular area of the store, called “hardlines,” which included

merchandise such as electronics, books and sporting goods. Target

referred to this position as Executive Team Leader or “ETL”

hardlines.1 As part of her job, Ruff managed the entire store on

a rotating basis with other area managers. On these days she was

the “Leader on Duty” or “LOD.” Ruff’s immediate supervisor at the

Gastonia Target was the Store Team Leader, Mark Burud.

Toward the end of the 1990s, Target stores in the Charlotte

district, of which Gastonia formed a part, were underperforming.

In an effort to boost their profitability, Target hired J.J.

Erlbacher as the District Team Leader for the Charlotte district in

2000. At some point after Erlbacher accepted the position, Marvin

Glenn Kiser, the Gastonia Target’s Assets Protection Team Leader,

heard Erlbacher make a statement to the effect that “he wanted to

replace team leaders with younger college graduates, because they

were ‘the way of the future for Target.’” (J.A. at 632.)2 Kiser

could not remember if Erlbacher made the statement before or after

Ruff was terminated. Ruff remembers a lunchtime conversation at
4

Target in which another ETL, Bill Plafcan, mentioned that everyone

Erlbacher hired seemed to be young and straight out of college.

Ruff responded that she had been told that “that was the direction

of the company, that . . . you could not be an executive anymore

unless you were a college graduate.” (J.A. at 347.) Ruff did not

have a college degree, but at the time she was hired, Target

required “either a college degree or . . . years of experience in

retail management,” which she did have. (J.A. at 347-48.) She

asked Plafcan, who did not have a college degree, “weren’t you

hired by [Erlbacher],” and he responded that he “slipped in under

the fence before [Erlbacher] got here.” (J.A. at 348.)

Ruff was 47 years old in 2000, when Erlbacher became the

Charlotte DTL. After 2000, the scores that she received on her job

evaluations began to decline. Ruff’s 2000 job evaluation was an

83.2 out of 100, which Target considered “excellent,” although the

evaluation identified a number of areas in which Ruff’s performance

was weak, such as “effective use of time,” “manag[ing] performance

and development plans,” and “establish[ing] clear directions.”

(J.A. at 61-73.) Ruff received a score of 75.4 on her 2001 job

evaluation, which Target considered “satisfactory plus.” The 2001

evaluation again identified “effective use of time,” “manag[ing]

performance and development plans,” and “establish[ing] clear

directions” as areas in which Ruff needed to improve. (J.A. at 83,

219-231.)
5

In January 2002, Brian Fiala, the Senior Vice President of the

North/East Region of Target, conducted a visit to the Gastonia

store. Ruff was the LOD on the day of his visit, which meant that

she was responsible for the condition of the store. Fiala was very

displeased with what he saw and complained to Erlbacher. Fiala

expressed concern that product in the back was not being put out on

display and also criticized the general condition of the store and

the leadership in the building. He was particularly upset that

Ruff seemed “nonchalant” about the problems. Erlbacher remembers

Fiala remarking that Ruff had “kind of laughed” and made a comment

about getting to it later, which Fiala perceived as evidencing a

lack of accountability and desire to excel at Target. (J.A. at

132.) According to Erlbacher, Fiala would have preferred that Ruff

“be up front with [him]” and let him know that she had a “plan of

action” to address the problems. (J.A. at 133.)

In July 2002, Burud told Ruff that Erlbacher wanted her

resignation, which Ruff declined to give. Burud explained that a

store visit that Erlbacher had conducted had not gone well. Ruff

responded that this was because another ETL, Ames Livingston, had

left the store in disarray, and merchandise was stacked in the

aisles when she arrived at the store on the date of the inspection.

She asked if Livingston would also be asked to resign. Burud

replied that Livingston would “get a message,” but it “[would not]

be the same message [as Ruff received] because . . . he [was]
6

working on his master’s and [Erlbacher could] see him as a future

store manager and [Erlbacher did not] see [Ruff] as ever running a

Target store.” (J.A. at 382.) Ruff responded that she had never

claimed that she wanted to become a store team leader and that

Erlbacher’s predecessor had been aware of and comfortable with her

desire to remain an area manager throughout her career at Target.

Ruff’s 2002 mid-year job evaluation covered her performance

from January to July of that year. Target had changed the format

for its evaluations in 2002 and was no longer using a numerical

score. Instead, Target had adopted “The E’s of Excellence.” The

E’s refer to Energy, Enthusiasm, Execution, and Excellence, and

Target has a pamphlet that explains how to excel in each of the

E’s. Ruff was rated medium low in all E’s except enthusiasm, in

which she was medium. The evaluation included comments explaining

the rating under each E. The comments indicated that she needed to

“hold her team accountable,” “manage performance consistently,”

“manage execution consistent everyday,” and that “consistent brand

management must be achieved each day.” (J.A. at 87.) The new

format also rated the employee’s performance as either “meeting

expectations” or “not meeting expectations.” Ruff’s evaluation

indicated that she was not meeting expectations. Ruff questioned

the validity of criticism contained in the 2002 mid-year

evaluation, because much of it related to incidents that occurred

early in the year and had never been previously discussed with her;
7

these incidents included poor inspections in January, February,

March, and April. There was no independent documentation

supporting the criticism.

Over the next two months, Burud documented several instances

in which Ruff’s performance was lacking. Burud’s notes indicated

that the problems included failing to have a “total store focus,”

not meeting deadlines, failing to follow up on the days she was in

charge of the store, spending too much time talking, gossiping, and

loafing, failing to give staff an action plan over a long weekend,

and disrespecting staff. Burud also noted instances in which Ruff

did not return to work after an appointment and did not call to

explain her continued absence, as well as one occasion on which

Livingston found himself obligated to “pull together a lot of

things . . . in [Ruff’s] area” before a visit from Erlbacher.

(J.A. at 1230.)

In August 2002, Burud issued Ruff a Written Counseling, the

first disciplinary step in Target’s discipline program, identifying

the problems with her performance over the course of 2002. Ruff’s

work did not improve, and in September 2002, Burud issued her a

Written Warning, the second step in Target’s discipline program,

identifying many of the same problems as in her Written Counseling.

Ruff complained about her evaluation to Burud, who told her,

“Debbie, do you know how bad this is tearing me up to do this.”

(J.A. at 480.) Still, Ruff’s performance did not improve, and
3Only Burud, Erlbacher, and another supervisor, Landis, would

have had input into the decision to issue counseling or warnings to

Ruff. Both Burud and Erlbacher had input into the decision to

terminate Ruff.

8

Erlbacher remained both dissatisfied and unsympathetic. He

conducted three or four inspections of the Gastonia store during

Ruff’s final months as ETL hardlines and noticed that Ruff was

either not present at all during his visits or appeared briefly,

only to leave the store in what he perceived as an inexplicable

hurry. Erlbacher attributed Ruff’s absence to “a major problem

with conflict avoidance” and was unaware of any legitimate reasons

that Ruff might have had for her absence or unavailability. (J.A.

at 876-77.) In November 2002, Burud issued Ruff a Final Warning,

the third and final step in Target’s discipline program,

identifying the same problems as the earlier warnings. Ruff asked

Burud what she could do to improve her performance and stop

receiving negative feedback. He replied “well, Debbie, I know you

are working very hard, and I know there are some days that you are

making the time lines down there, but . . . there is not going to

be any change in your performance unless upper management changes.”

(J.A. at 502-03.) Ruff responded, “I guess I will be terminated

because J.J. Erlbacher is not going away.” (J.A. at 503.)3

Ruff believed that at that point Erlbacher had already made up

his mind about her and had decided to force her to resign.

Previously, Kiser had told Ruff that Erlbacher and Burud had stated
9

in his presence that, “When a person is perceived . . . as a poor

performer, one of the best ways to deal with getting rid of that

person is to shut them out as a team; in other words, don’t give

them any help and don’t include them.” (J.A. at 1291.) Also,

Burud had told Ruff to give another former ETL at the Gastonia

Target, Pam Rea, this treatment, instructing her not to help Rea

and to “[l]et her hang herself.” (J.A. at 366.) Burud explained

that he had spoken to Erlbacher and that if Rea’s coworkers shut

her off from the team and declined to support her, she would “go

away.” (J.A. at 367.) Rea did leave the Gastonia store. She

resigned in the beginning of 2002 at age 50 and was replaced by

Seth Finkey, age 23. 

Burud told Ruff that Erlbacher disliked Rea immediately,

explaining that, “He didn’t like how she toured. He didn’t like

how she giggled. He did not like her personality.” (J.A. at 368.)

Ruff believed that Rea had been “doing adequate,” but noted that

Rea seemed to irritate some of the executives because she was “a

perfectionist” and “very by the book.” (J.A. at 368.) Ruff did

not opine as to whether Burud or Erlbacher shared her belief that

Rea’s performance was adequate and did not specify whether

Erlbacher and Burud were among the executives irritated by Rea’s

inflexibility. 

Ruff believed that Andrew Kehoe, another ETL who left the

Gastonia Target in early 2002, fell victim to the same scheme.
10

According to Ruff, “He was under a lot of pressure. They were

saying that he wasn’t doing his job. He wasn’t meeting his time

lines and expectations and he gave his resignation in February and

left.” (J.A. at 1203.) She felt that although Kehoe might have

appeared to be falling short of Target’s expectations, this

appearance was due to the fact that “he didn’t get the payroll

support and the scheduling support that he needed in the back

room.” (J.A. at 1203.) Kehoe was 32 at the time of his

resignation and was replaced by Bill Plafcan, age 36.

Ruff perceived her treatment by supervisors to be worse than

simply being isolated or denied support. She believed that

Livingston and another ETL, Therese Roberts, at Erlbacher’s

request, purposefully sabotaged her by ensuring that she was

consistently understaffed and overworked. This sabotaging made it

impossible for her to meet deadlines and keep the store looking

nice, and sometimes required her to have staff work overtime.

At one point, Ruff asked Erlbacher to tell her what he did not

like about her and what she could do to change his opinion.

Erlbacher “kind of reared back and [said] high energy,

enthusiastic, do you get where I’m coming from?” (J.A. at 401.)

Ruff took Erlbacher’s comment to mean that she “was not young and

peppy and high energy and bubbly because he had made the comment

that we wanted young and bubbly people or [Burud] had told us

that’s what [Erlbacher] had wanted, young, bubbly people.” (J.A.
11

at 401.) When asked about this exchange by Target’s attorney, Ruff

described it in slightly different terms. She explained that she

had asked Erlbacher what exactly was wrong with her performance,

and Erlbacher replied that she was “not high energy and energetic

and that’s what I’m looking for.” (J.A. at 157.) Ruff interpreted

the “high energy” comments as related to her age but never asked

Erlbacher for clarification on this point.

Ruff filed a charge of discrimination with the EEOC on

November 18, 2002. When asked why she filed the charge at that

time, after never having mentioned that she thought the counseling

and warnings were the product of discrimination when she received

them, Ruff responded that, “I think that’s when it . . . hit home

to me that this is going to the end. You are going to be

unemployed on December 1st, and it’s no fault of yours. It’s

because one person in this company does not like you.” (J.A. at

175-76.)

Ruff was terminated on December 18, 2002. She was replaced by

Ames Livingston, a 24-year-old who had been the manager of another

area (the “ETL softlines”). Livingston’s numeric score for 2001

was 76.9, and his 2002 mid-year review indicated that he was

“meeting expectations.” (J.A. at 769, 774.) Livingston had

received numerous counselings over performance issues at Target

while he was ETL softlines. He had arrived late on a number of

occasions, once because he was being bailed out of jail for an
4Ruff’s complaint included gender discrimination claims, which

she dismissed during the proceedings before the district court.

Ruff also unsuccessfully pursued a retaliatory discharge claim

before the district court, but chose not to appeal that issue.

12

alcohol-related offense. He also had attendance issues and had

come to work smelling of alcohol. Target claimed that Livingston

was not asked to resign as a result of these instances because he

responded to constructive criticism and improved his performance,

and because he had the motivation and the potential to advance in

his career at Target. Ruff corroborated this explanation somewhat,

noting that when Burud had told her in July 2002 that he was asking

for her resignation and not Livingston’s, it was because Erlbacher

could see Livingston, but not Ruff, as a future store team leader.

In addition, Ruff asserted that Livingston was “protected” because

he was a friend of Erlbacher’s. (J.A. at 337.) Kiser also opined

that Erlbacher seemed to favor Livingston over other ETLs because

Erlbacher was a friend of Livingston’s father.

 On January 6, 2004, Ruff filed a complaint alleging age

discrimination in violation of the ADEA and the North Carolina

Equal Employment Practices Act, as well as other claims arising out

of her dismissal,4 in state court in Gaston County, North Carolina.

Target removed the case to the United States District Court for the

Western District of North Carolina. Target moved for summary

judgment, and the district court granted the motion, finding that

Ruff could not establish a prima facie case of age discrimination
13

because she could not show that she was meeting Target’s legitimate

expectations. Assuming arguendo that Ruff had established a prima

facie case, the district found that Ruff’s age discrimination

claims would still fail, because she could not show that Target’s

asserted reason for her dismissal was pretextual. The district

court assumed that Ruff could not benefit from a “mixed-motive”

analysis because she lacked direct evidence of discrimination.

Ruff timely appealed. We have jurisdiction pursuant to 28

U.S.C.A. § 1291 (West 2006) (providing for appellate jurisdiction

over “final decisions” of the district court).

II.

We review de novo the district court’s grant of summary

judgment, applying the same standards that the district court was

required to apply. See Laber v. Harvey, 438 F.3d 404, 415 (4th

Cir. 2006) (en banc). “Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Hill v. Lockheed

Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en

banc) (internal quotation marks omitted). We construe the evidence

in the light most favorable to the non-moving party (Ruff) and draw

all reasonable influences in her favor. Id.
5The North Carolina Equal Employment Practices Act, N.C. Gen.

Stat. § 143-422.2 (2005), provides, in pertinent part, that it is

North Carolina’s public policy to “protect and safeguard the right

and opportunity of all persons to seek, obtain and hold employment

without discrimination or abridgment on account of . . . age . . .

by employers which regularly employ 15 or more employees.” We

apply the same evidentiary standards utilized in evaluating ADEA

claims to state law claims under § 143-422.2. See Hughes v.

Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995).

14

The ADEA makes it illegal for an employer to “discharge any

individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age.” 29 U.S.C.A. §

623(a)(1). To succeed on an ADEA claim, the plaintiff must

demonstrate, by a preponderance of the evidence, that “the

plaintiff’s age . . . actually played a role in the employer’s

decisionmaking process and had a determinative influence on the

outcome.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.

133, 141 (2000) (internal quotation marks and alteration omitted).

A plaintiff can establish an ADEA claim “through two alternative

methods of proof:” (1) a “pretext” framework that employs the

McDonnell Douglas burden-shifting analysis used in Title VII cases,

or (2) a “mixed-motive” framework. EEOC v. Warfield-Rohr Casket

Co., 364 F.3d 160, 163 (4th Cir. 2004).5 The district court

applied the pretext framework to Ruff’s case. Ruff argues that (1)

her age discrimination claims should have survived summary judgment

under the pretext framework, and (2) the district court erred in

assuming that she was not entitled to proceed under the mixed-
6For ADEA purposes, the protected class is individuals who are

at least 40 years of age. See 29 U.S.C.A. § 631(a) (“The

prohibitions in this chapter shall be limited to individuals who

are at least 40 years of age.”).

15

motive framework because she lacked direct evidence of age

discrimination. We address each argument in turn.

A.

Under the “pretext” framework, a plaintiff must establish a

prima facie case of discrimination by showing, by a preponderance

of the evidence, that (1) she is a member of a protected class6

;

(2) she suffered adverse employment action; (3) she was performing

her job duties at a level that met her employer’s legitimate

expectations at the time of the adverse employment action; and (4)

the position remained open or she was replaced by a substantially

younger individual. O’Connor v. Consol. Coin Caterers Corp., 517

U.S. 308, 310-11 (1996) (assuming that the McDonnell Douglas

framework applies in the ADEA context); Hill, 354 F.3d at 285. If

the plaintiff establishes a prima facie case, the burden shifts to

the employer to articulate a legitimate, nondiscriminatory reason

for the adverse employment action. The employer’s burden is one of

production, not persuasion. Hill, at 285. If the employer meets

this burden of production “the McDonnell Douglas framework - with

its presumptions and burdens - disappear[s], and the sole remaining

issue [i]s discrimination vel non.” Reeves, 530 U.S. at 142-43
16

(internal quotation marks omitted). “Although intermediate

evidentiary burdens shift back and forth under this framework, the

ultimate burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff.” Id. at 143 (internal quotation marks

and alteration omitted). “And in attempting to satisfy this

burden, the plaintiff . . . must be afforded the opportunity to

prove by a preponderance of the evidence that the legitimate

reasons offered by the defendant were not its true reasons, but

were a pretext for discrimination.” Id. (internal quotation marks

omitted). Thus, “the plaintiff may attempt to establish that [s]he

was the victim of intentional discrimination by showing that the

employer’s proffered explanation is unworthy of credence.” Id.

(internal quotation marks omitted).

The district court found that Ruff could not establish a prima

facie case of age discrimination because she could not show that

she was meeting Target’s legitimate expectations. Ruff argues that

this finding was in error because she met Target’s standards from

the time she was hired through 2001 -- during that period her

performance evaluations never dipped below “satisfactory plus” --

and in 2002, Target’s expectations were not legitimate.

To be sure, a plaintiff may establish a prima facie case by

proffering evidence that demonstrates (or at least creates a

question of fact) that the employer’s expectations were
17

illegitimate. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, (4th

Cir. 2006) (explaining that “[a]lthough on summary judgment an

employer is free to assert that the job expectation prong has not

been met, nothing prohibits the employee from countering this

assertion with evidence that demonstrates (or at least creates a

question of fact) that the proffered ‘expectation’ is not, in fact,

legitimate at all.”). Even if we assume that Ruff was consistently

understaffed and overworked such that she could not legitimately be

expected to meet certain timelines, however, there remain numerous

instances in which there was, in the words of the district court,

“both a reasonable expectation of performance by the employer and

a failure to live up to the standard.” (J.A. at 1402.) Ruff’s

being denied necessary support would not excuse her failure to

demonstrate initiative and accountability during the scheduled

visit from regional vice-president Fiala, nor would it explain her

absence during Erlbacher’s visits. Similarly, Ruff’s being shut

out of the team would not justify her disrespecting staff, not

giving staff an “action plan” before leaving for a long weekend, or

failing to return to work after an appointment despite having

promised to do so.

Ruff has not shown, nor even argued, that she was meeting

Target’s expectations to the extent that they were legitimate.

Although Burud’s comment that despite her hard work and periodic

success at meeting her timelines, “there [was] not going to be any
18

change in [her] performance unless upper management change[d],”

(J.A. at 502-03), supports an inference that Erlbacher was

unwilling to evaluate Ruff objectively, it does not demonstrate

that the instances in which Ruff did not meet expectations (many of

which were documented by Burud) were fabricated. Ruff does not

challenge the veracity of the documented criticism. Rather, she

contends that Target failed to recognize legitimate excuses. For

example, Ruff attempts to cast doubt on the validity of Erlbacher’s

complaints regarding her availability on the dates of his visits by

suggesting that she may have had legitimate motives for her

absences of which he was unaware, but does not dispute the veracity

of his statements that she was unavailable and that he considered

this unavailability a problem. Likewise, Ruff contends that she

did have a plan of action on the date of the disastrous Fiala

visit, but does not challenge Target’s contention that no such plan

was communicated to Fiala. In so doing, Ruff ignores that the

relevant question is whether Target believed she was doing a good

job, not whether someone more familiar with her situation would

have thought so. See King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.

2003) (holding that an employee’s own testimony cannot establish a

genuine issue of material fact as to whether the employer’s

legitimate expectations were met, because “[i]t is the perception

of the decision maker which is relevant” (internal quotation marks

and citation omitted)).
19

Rather than demonstrating that Target in fact considered her

job performance to be adequate, Ruff attempts to show that any

inadequacies were not the true motivation for her discharge. In

support of this position, Ruff points primarily to Erlbacher’s

statement evincing a desire “to replace team leaders with younger

college graduates,” (J.A. at 632), and to Livingston’s continued

employment with Target despite his failure to meet expectations on

several occasions. The district court found this evidence

insufficient to show pretext, and we agree.

Ruff relies heavily on Erlbacher’s comment that he “wanted to

replace team leaders with younger college graduates, because they

were ‘the way of the future for Target.’” (J.A. at 632.)

Erlbacher’s statement does evidence a bias in favor of younger

employees. It does not, however, indicate that the existing team

leaders who would be replaced would be selected on the basis of

their age. Ruff’s own testimony is that the people Erlbacher went

after were those who were perceived as “poor performers.” Her

testimony also suggested that his primary focus was on the college

degree, which had become a prerequisite to obtaining an executive

position at Target. Ruff noted that the one other employee over 40

who experienced treatment similar to her own was a person whom

Erlbacher disliked personally. The other employee who left the

Gastonia Target during the relevant time period was 32, and he was

replaced by a 36-year-old. Moreover, Ruff stated that she filed a
20

discrimination charge with the EEOC upon realizing that she was

about to lose her job because one person did not like her. 

Erlbacher’s comment, although troubling, does not constitute

sufficient evidence on which a jury could conclude that Ruff was

fired because of her age, particularly when viewed in light of the

complete picture that Ruff painted before the district court. We

have previously held that “[t]he mere existence of a scintilla of

evidence in support of the plaintiff’s position will be

insufficient; there must be evidence upon which the jury could

reasonably find for the plaintiff.” EEOC v. Clay Printing Co., 955

F.2d 936, 943 (4th Cir. 1992) (internal quotation marks omitted).

In Clay Printing, a company brought in a consultant who suggested

that “too many people have been around here too long and make too

much money;” he recommended that the company seek to attract

“newer, younger, people” and indicated that “if employees had been

there 10 years or more, they needed to move on.” Id. at 938, 942.

Nevertheless, we concluded that the employees’ claims could not

survive summary judgment, primarily because (1) the rationale for

terminating people –- that they were being overpaid -– applied

equally to employees outside of the protected class, and (2) there

was no statistical evidence that older workers were replaced by

younger workers. Id. Thus, it was clear that employees were being

discharged because they were being overpaid for the work that they

were doing, not because they were old(er).
21

Of course, we noted in Tuck v. Henkel Corp., 973 F.2d 371 (4th

Cir. 1992), overruled on other grounds by Hazen Paper Co. v.

Biggens, 507 U.S. 604 (1993), that in Clay Printing, “the evidence

did not show that the employer’s positive references to younger

potential employees suggested the older existing employees should

be fired.” Id. at 377 n.5 (emphasis added). We stated that “[w]e

do not read Clay Printing’s holding to prevent statements that a

company wants to replace its older employees with younger ones from

being considered evidence of age discrimination . . . .” Id.

(emphasis added). In the case before us, however, Erlbacher’s

statement applies equally to all existing employees and does not

specifically reference older employees. In that respect, it stands

in contrast to Tuck, in which the employees established a prima

facie case, and in which a supervisor “repeatedly stated that he

wanted to get rid of the older people and replace them with ‘young

blood’” and had “pointedly told several older employees . . . that

what Henkel needed was ‘younger people.’” Id. at 377. Such

comments “suggest[ed] a desire to fire older employees and replace

them with younger ones.” Id.

Ruff suggests that Target’s decision not to fire Livingston,

who also failed to meet expectations on a number of occasions,

demonstrates that Target was willing to tolerate substandard work

on the part of a younger employee, and would not have fired her had

she been younger. Livingston’s continued employment, however, is
22

not probative of a discriminatory animus in terminating Ruff.

Target claimed that any difference in the treatment of Livingston’s

and Ruff’s shortcomings resulted from Livingston’s willingness and

ability to improve his job performance and advance his career at

Target and Ruff’s corresponding unwillingness to alter her settled

ways. Ruff partially corroborated Target’s portrayal of the

situation; she offered deposition testimony in which she stated

that when Burud asked for her resignation in July 2002, he revealed

that he would not be making a similar request of Livingston because

Livingston was working on his masters degree and Erlbacher could

see him as an store manager some day, but could not see Ruff ever

running a Target store. Moreover, Ruff offered an additional ageneutral explanation for any disparate treatment of Livingston. She

asserted that she and her coworkers “all knew [Livingston] was

protected because he was friends with [Erlbacher].” (J.A. at 337.)

Kiser, who offered deposition testimony in support of Ruff’s case,

also stated that he noticed Erlbacher’s relationship with

Livingston “seemed to be more personable and more personal than

[his relationship with] the rest of the ETLs, and [Kiser thought]

that was due to some sort of relationship between [Erlbacher] and

[Livingston’s] father.” (J.A. at 610.) 

Accordingly, we conclude that the district court did not err

in finding that the evidence Ruff provided did not show that she

was meeting Target’s legitimate expectations, nor could it support
23

a finding that Ruff’s age, and not her failure to meet her job

requirements, was the reason she was terminated. 

B.

The district court stated that Ruff could not benefit from the

“mixed-motive” framework established by the Supreme Court in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). Ruff concedes that she

lacks direct evidence of age discrimination, but urges us to take

the opportunity to extend the Supreme Court’s holding in Desert

Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003) -- that direct

evidence is not required in Title VII mixed-motive cases -- to agediscrimination claims. Because we need not address the direct

evidence requirement in order to resolve the case before us, we

decline the invitation.

Ruff contends that the district court was correct in finding

that she lacked direct evidence of age discrimination, but wrong in

assuming that a plaintiff who presents only circumstantial evidence

of discrimination is not entitled to proceed under a mixed-motive

framework. We need not address this issue, however, because even

if we were to hold that a mixed-motive framework is available to

ADEA claimants who lack direct evidence of age discrimination, Ruff

would not be entitled to a mixed-motive jury instruction in this

instance. To pursue a mixed-motive case, a plaintiff must

demonstrate that a “protected trait . . . actually played a role in
24

the employer’s decisionmaking process and had a determinative

influence on the outcome.” Hill, 354 F.3d at 286 (explaining that

“[r]egardless of the type of evidence offered by a plaintiff as

support for her discrimination claim (direct, circumstantial, or

evidence of pretext), or whether she proceeds under a mixed-motive

or single-motive theory, the ultimate question in every employment

discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional discrimination”

and “[t]o demonstrate such an intent to discriminate . . . an

individual . . . must produce sufficient evidence upon which one

could find that the protected trait actually motivated the

employer’s decision” (internal quotation marks and alteration

omitted)); Warch, 435 F.3d at 521 (holding that a plaintiff who had

produced some direct and circumstantial evidence had nevertheless

“failed to create a genuine dispute that he was the victim of

illegal age discrimination”); Sanghvi, M.D. v. St. Catherine’s

Hosp., Inc., 258 F.3d 570, 574-75 (7th Cir. 2001) (holding that

“[e]ven in discrimination cases where the plaintiff has direct

evidence, an adverse grant of summary judgment may be proper” as

“in a few select cases a review of the record as a whole may reveal

that the evidence is so one-sided that [the defendant] must prevail

as a matter of law” (internal quotation marks omitted) (alteration

in original)). As discussed above, Ruff cannot prove that she

was the victim of intentional discrimination, because she has not
25

presented sufficient evidence for a reasonable jury to conclude

that Target’s decision to terminate Ruff was motivated, in whole or

in part, by her age.

III.

In sum, we conclude that the district court did not err in

concluding that Ruff had not presented sufficient evidence for a

reasonable jury to determine that Target discriminated against her

on the basis of age. Accordingly, we affirm the judgment of the

district court.

AFFIRMED
*I note that Ruff has conceded that she does not have direct

evidence of discrimination, and I agree with the majority that the

mixed-motive framework is not appropriate in this case.

26

SHEDD, Circuit Judge, concurring:

I concur in the result reached by the majority. Based on the

record presented, I believe that the district court appropriately

analyzed this case under the McDonnell Douglas framework.* In

doing so, the district court correctly determined that Ruff failed

to establish a prima facie case because she did not show that at

the time she was terminated she was performing at a level that met

Target’s legitimate expectations. Ruff’s inability to establish a

prima facie case is fatal to her claim, and it is unnecessary for

us to consider the district court’s alternative holding regarding

the issue of pretext. Accordingly, I would affirm the summary

judgment.