UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSEPH GONZALEZ,

Plaintiff-Appellant,

v. No. 98-1632

ROYAL INDEMNITY COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Graham C. Mullen, Chief District Judge.

(CA-95-512-MU)

Submitted: November 30, 1999

Decided: December 22, 1999

Before MOTZ, TRAXLER, and KING, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Keith H. Cole, Jr., DODGE, FAZIO, ANDERSON & JONES, P.C.,

Dallas Texas; Martha J. Efird, Charlotte, North Carolina, for Appellant. John J. Doyle, Jr., Jill S. Stricklin, CONSTANGY, BROOKS &

SMITH, L.L.C., Winston-Salem, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Joseph Gonzalez appeals the district court's order awarding summary judgment to Royal Indemnity Company ("Royal") on Gonzalez's claim of age based employment discrimination brought pursuant

to the Age Discrimination in Employment Act, 29 U.S.C.A. §§ 621-

634 (West 1999) and the Employment Retirement Income Security

Act of 1974. Gonzalez claims that summary judgment was improper

because he produced sufficient evidence of discrimination to place a

material fact in dispute. See McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). We agree.

After reviewing the evidence proffered by Gonzalez, we find that

he produced sufficiently probative and admissible evidence regarding

age-based discrimination to place a question before a jury. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (stating

that credibility determinations and weighing of the evidence are jury

functions and not those of a judge).

First, Gonzalez produced internal documents from Royal's Senior

Management Group ("SMG") that permit the inference that the company in planning how to implement its Reduction In Force ("RIF"),

may have considered eliminating employees on the improper basis of

their age. We reject Royal's contention that the documents obtained

by Gonzalez from Royal during discovery, are unauthenticated and

unidentified. See Celotex v. Catrett, 477 U.S. 317, 324 (1986) (holding that at the summary judgment stage evidence need not be produced in a finalized form that would be admissible at trial). We thus

find that when the inferences are drawn in Gonzalez's favor, as they

must be on a motion for summary judgment, Gonzalez established a

prima facie case of age discrimination. See Herold v. Hajoca Corp.,

864 F.2d 317, 319-20 (4th Cir. 1988) (stating standard for age discrimination case during RIF).

Gonzalez also raised a legitimate question as to whether Royal followed its own procedures in eliminating Gonzalez from its workforce.

Royal asserted that it followed a policy of not"bumping" employees.

Instead, Royal claimed that it pursued a policy of eliminating posi-

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tions, not people. Accordingly, it states that when it eliminated Gonzalez's position, it did not consider him for any other positions within

his group. However, several documents produced by Royal during the

discovery process arguably indicate otherwise. A document produced

by Jodie Figge of Royal's human resources department indicated that

departments should identify their essential positions and then "identify which employees have the skills needed to perform the remaining

tasks." (J.A. at 198). Similarly, Victor Daley of the SMG described

the need to determine "which employees should be placed or retained

in a given position." (J.A. at 204). Gonzalez argues that if Royal genuinely intended to eliminate positions, there would be no reason to

consider placement or retention of employees; those in positions that

were not eliminated would be secure in their respective jobs. While

we indicate no view on the merits of Gonzalez's argument, we agree

that a reasonable fact finder could conclude that Royal's own documentation contradicts its stated workforce reduction criteria. Thus,

Gonzalez raised a material question of fact as to whether Royal's reasons for dismissing him were pretexts for age discrimination. Id. at

320.

Royal also claims that when it eliminated two consultant positions

from its workers compensation group, one of which was occupied by

Gonzalez, there were no remaining positions in which Gonzalez could

be placed. However, this situation resulted only because of Royal's

decision to promote the other consultant whose position was eliminated, Charles Schuver, an individual Royal had recently demoted,

over Gonzalez. While Royal asserts that it did not consider Gonzalez

for the position in which it placed Schuver based on Gonzalez's

alleged failure to succeed in that position previously, Royal's decision

to promote a recently demoted employee over Gonzalez again raises

a question of material fact. Accordingly, we hold that summary judgment was premature as the facts construed in the light most favorable

to Gonzalez, see Anderson, 477 U.S. at 250, reveal that he made an

adequate showing that Royal's reasons for terminating him were pretextual and that he created a genuine issue of material fact as to

whether his termination was made because of his age. See Herold,

864 F.2d at 320.

We vacate the district court's grant of summary judgment and

remand for further proceedings. We dispense with oral argument

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because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

VACATED AND REMANDED

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