UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES LARRY RHYMER,

Plaintiff-Appellant,

v.

No. 96-1191

YOKOHAMA TIRE CORPORATION,

formerly known as Mohawk Rubber

Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Roanoke.

James C. Turk, District Judge.

(CA-93-198-R)

Argued: December 4, 1996

Decided: January 16, 1997

Before RUSSELL and MICHAEL, Circuit Judges, and DAVIS,

United States District Judge for the District of Maryland, sitting by

designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Melissa Windham Friedman, Roanoke, Virginia, for

Appellant. Thomas R. Crookes, BROUSE & MCDOWELL, Akron,

Ohio, for Appellee. ON BRIEF: Anthony F. Anderson, Roanoke,

Virginia, for Appellant. R. Scot Harvey, BROUSE & MCDOWELL,
Akron, Ohio; Bayard E. Harris, Agnis C. Chakravorty, THE CENTER FOR EMPLOYMENT LAW, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Rhymer appeals the award of summary judgment to his former employer, Yokohama Tire Corporation (Yokohama), on his

claims for discrimination under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. , and for breach of an

implied contract of employment. Finding no error, we affirm the district court.

I.

In 1964 Rhymer was hired by Mohawk Rubber Company

(Mohawk), the predecessor to Yokohama. After working for Mohawk

in Akron, Ohio, and Helena, Arkansas, Rhymer was transferred to the

Salem, Virginia, plant in 1976. At Salem Rhymer initially served as

plant controller. Later, he was plant manager for several years, but he

eventually returned to his old position as plant controller, the job he

held until he was terminated on January 28, 1992.

Upon his arrival at the Salem facility, Rhymer received an

employee handbook and was told that the book contained the general

rules for plant employees. Rhymer testified in his deposition that the

person who gave him the handbook said that it guaranteed his

employment if he did an acceptable job. Rhymer admitted, however,

that he reviewed the handbook and found no mention of a guarantee

of employment.

Yokohama purchased Mohawk in 1989. Yokohama's corporate

offices were in Akron, Ohio. After the acquisition, Rhymer primarily

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reported to Richard Switzer, the plant manager at Salem, and Matthew Anderson, the acting corporate controller in Akron.

Rhymer's duties as plant controller were varied and extensive. He

was responsible for all of the plant's finances, including budget preparation and the preparation of reports and analyses relating to usage

and spending variances. During most of his employment with Yokohama, Rhymer was regarded as a good employee. He received yearly

raises and bonuses, including a bonus the month before his termination. However, in the months preceding his termination, Rhymer

came under increasing pressure to address the problem of usage and

spending variances at the Salem plant. A usage variance problem

meant that too few tires were being produced for the amount of raw

materials purchased. A spending variance problem meant that material and service costs were exceeding company standards or were too

high.

Both Switzer, the plant manager, and Anderson, the acting corporate controller, told Rhymer that they were concerned about his

inability to analyze the variance problem and to suggest countermeasures. On December 13, 1991, Switzer sent Rhymer a letter warning

him that his treatment of the problem of "inventory shortages" (that

is, usage variance) at the Salem plant "had not been satisfactory." On

December 20, 1991, Anderson sent Rhymer a letter telling him that

he "must be pro-active instead of reactive" in analyzing and recommending potential solutions to the usage variance problem. On January 22, 1992, Rhymer attended an executive committee meeting in

Akron. The minutes of the meeting reflect the following: Switzer

announced that Rhymer would speak on the variance issue. After

Rhymer made his presentation, Y. Hanabusa (the company president)

asked why the usage variance problem was worse in 1991 than in

1990 and 1989. Rhymer could not explain, asserting that he lacked

the right tools. For example, Rhymer said that he received information too late to control the problems. Hanabusa indicated his displeasure with Rhymer and told him that he was the person responsible for

controlling variances and costs.

On January 28, 1992, Rhymer was terminated. He was 54 at the

time. Hanabusa, not Switzer or Anderson, made the decision to terminate Rhymer. Yokohama cited Rhymer's inability to perform the ana-

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lytical and financial roles of a plant controller, including his inability

to deal with the variance problem, as the reason for his termination.

The parties dispute which person or persons assumed Rhymer's duties

after his termination. Rhymer claims that Gary Purdy, age 41, took

over most of his work.

Rhymer sued Yokohama in district court, claiming that Yokohama

discharged him because of his age in violation of the ADEA and that

Yokohama breached his employment contract that was created,

Rhymer asserts, by an employee handbook. The district court granted

Yokohama's motion for summary judgment, concluding that Rhymer

failed to establish a prima facie case of age discrimination and failed

to establish the existence of a valid employment contract under Virginia law. Rhymer appeals.

II.

We review grants or denials of motions for summary judgment de

novo. Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993). If there

is no genuine dispute as to a material fact, the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(c). In a discrimination case "[a]n employer is entitled to summary judgment if the plaintiff fails to establish a prima facie case of discrimination or fails to

raise a factual dispute regarding the employer's proffered reasons for

the alleged discriminatory act." Henson v. Liggett Group, Inc., 61

F.3d 270, 274 (4th Cir. 1995). We noted in EEOC v. Clay Printing

Co., 955 F.2d 936, 943 (4th Cir. 1993), that"`the mere existence of

a scintilla of evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.'" (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)). To establish a claim under the ADEA, "a

plaintiff must show that but for the employer's motive to discriminate

against plaintiff on the basis of age, the discriminatory action would

not have occurred." Henson, 61 F.3d at 274 (citations omitted).

A.

On his ADEA claim Rhymer relies upon the indirect, burdenshifting method of proof developed in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); see Lovelace v. Sherwin-Williams Co.,

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681 F.2d 230, 239 (4th Cir. 1982) (adopting McDonnell Douglas presumption framework in ADEA cases). If a plaintiff proceeds under

the McDonnell Douglas framework, the case essentially breaks into

three steps. First, the plaintiff must establish a prima facie case of

discrimination. McDonnell Douglas, 411 U.S. at 802. Second, the

defendant must respond with a nondiscriminatory reason for the termination. McDonnell Douglas, 411 U.S. at 802. Third, if the defendant responds with a legitimate nondiscriminatory reason, the

"plaintiff must then bear the ultimate burden of persuasion and show

by a preponderance of the evidence that the defendant's explanations

are pretextual or otherwise unworthy of credence." Henson, 61 F.3d

at 275 (citations omitted).

When the district court granted summary judgment to Yokohama,

there were four factors that a plaintiff had to demonstrate to make out

a prima facie case for age discrimination in this circuit. O'Connor v.

Consolidated Coin Caterers Corp., 56 F.3d 542, 546 (4th Cir. 1995),

rev'd, 116 S. Ct. 1307 (1996). The plaintiff had to show (1) that he

was a member of the protected class (ages 40-70), (2) that he had

been discharged, (3) that he was performing his job at a level that met

his employer's legitimate expectations, and (4) that he was replaced

by someone of comparable qualifications outside the protected class.

Id. at 546. The district court concluded that Rhymer had failed to

meet the fourth factor because he was replaced by someone within the

protected class.

After the district court's decision the Supreme Court rejected our

fourth factor for a prima facie case in age discrimination cases. See

O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307

(1996). In Consolidated Coin Caterers the Supreme Court said that

"the fact that a replacement is substantially younger than the plaintiff

is a far more reliable indicator of age discrimination than is the fact

that the plaintiff was replaced by someone outside the protected

class." Id. at 1310 (emphasis added). The Supreme Court left our first

three factors intact.

Here, we agree with the district court that Rhymer made out the

first three factors of a prima facie case. However, in light of the

Supreme Court's decision in Consolidated Coin Caterers, we must re-

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assess whether Rhymer has met the fourth factor, that is, whether he

has shown that he was replaced by someone substantially younger.

Rhymer was 54 years old when Yokohama terminated him, and

there is a dispute as to which person or persons replaced Rhymer.

Rhymer contends that he was replaced primarily by a new hire, Gary

Purdy, who was 41. Yokohama contends that Rhymer's duties were

given to several persons of various ages: Purdy, Robert Craig (age

58), Yohio Amano (age 46), and Robert Keen (age 45).

Because we must view all factual inferences in a light that favors

the non-moving party, see Matsushita Electric Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587-88 (1986), we will accept Rhymer's

contention that he was primarily replaced by Purdy. Purdy, age 41,

was substantially younger than Rhymer, who was 54. Because

Rhymer met the (modified) fourth factor, he did establish a prima

facie case.

The burden then shifts to Yokohama to respond with a legitimate

nondiscriminatory reason for the termination. McDonnell Douglas,

411 U.S. at 802. Yokohama cites Rhymer's poor job performance,

specifically his inability to analyze and to recommend solutions for

the usage variance problem. This explanation is sufficient to discharge Yokohama's burden of production at the second step.

We continue to the third step of the McDonnell Douglas scheme

and address the "straightforward" question of whether "the plaintiff

has successfully demonstrated that [he] was the victim of age discrimination on the part of the employer." Burns v. AAF-McQuay, Inc., 96

F.3d 728, 732 (4th Cir. 1996) (quoting Henson v. Liggett Group, Inc.,

61 F.3d 270, 275 (4th Cir. 1995) (citations omitted)). "[I]f the plaintiff

offers nothing to disprove the defendant's nondiscriminatory explanation[ ], the explanation['s] weakness alone is insufficient to create an

issue of pretext." Id. The plaintiff bears the ultimate burden of presenting "affirmative evidence of age-based animus." Id.

Rhymer argues that his immediate supervisors, Switzer and Anderson, did not agree with Hanabusa's decision to fire him. He reasons,

therefore, that his job performance must have been satisfactory and

the real reason for his termination must have been his age. Rhymer

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did not take the deposition of Hanabusa, the person responsible for

the decision to fire Rhymer. But there is evidence in the record

(including the minutes of the January 22, 1992, executive committee

meeting) suggesting that Hanabusa was dissatisfied with Rhymer's

job performance. Although Switzer and Anderson, who were themselves critical of Rhymer's performance, did not think that Rhymer's

inadequacies rose to a level warranting termination, that does not support an inference that Hanabusa (the company president) fired

Rhymer because of age discrimination.

Rhymer also relies on the fact that since February 1992 Yokohama

has hired ten management persons, and only one of those hired was

within the protected class (age 40-70). Rhymer, however, produced

no demographic information about the pool of employees at Yokohama nor about the pool from which employees were hired. Without

data about the relevant labor pool, the figures offered by Rhymer are

not proof of discrimination. See Henson, 61 F.3d at 276-77.

Finally, in an affidavit Rhymer said, "Yokohama employees have

commented to me that they have heard Mr. Akashi state that perhaps

older workers should be replaced because they would not change their

ways." "[A]lleged discriminatory statements can be indicative of discrimination." Henson, 61 F.3d at 276. However, to constitute probative evidence any statement must relate to a "particular person,

employment decision, or pattern of decisionmaking." Id.; see also

Clay Printing, 955 F.2d at 941-42 (noting there was no nexus

between the alleged discriminatory statements and any employment

decisions made by the employer). Assuming Rhymer could overcome

the hearsay problems with the statement attributed to Akashi, Rhymer

has still not shown that there was any connection between the Akashi

statement and Hanabusa's decision to terminate him.

We must conclude that the evidence Rhymer relies on to show agebased animus is not sufficient to create a genuine issue of material

fact on the ultimate question of whether Yokohama intentionally discriminated against him because of his age. We therefore affirm the

district court's grant of summary judgment to Yokohama on Rhymer's ADEA claim.

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B.

Rhymer also contends that the district court erred when it granted

Yokohama summary judgment on his breach of contract claim.

Rhymer argues that the employee handbook constituted an implied

promise that he would be fired only "for cause" and thus rebutted any

presumption of at-will employment.

The district court determined correctly that Virginia law governs

the contract issue because the parties entered into the employment

relationship in Virginia. See Nguyen v. CNA Corp., 44 F.3d 234, 237

(4th Cir. 1995). Virginia adheres to the common law rule that absent

a provision to the contrary, contracts for the rendition of services are

at-will. Miller v. SEVAMP, Inc., 362 S.E.2d 915, 916-17 (Va. 1987).

In a case interpreting Virginia law, we said that we will not "imply

a just cause provision where one is not explicitly provided." Nguyen,

44 F.3d at 238 (quoting Sullivan v. Snap-On Tools Corp., 708 F.

Supp. 750, 752 (E.D. Va. 1989)).

Rhymer contends that the following section in the employee handbook creates a right not to be fired without cause:

 LOSS OF SERVICE: There are several ways an

employee can lose his service. The following things will

result in loss of service:

(1) Voluntary termination of employment.

(2) An employee absent for three consecutive days without permission will be regarded as a voluntary resignation.

(3) Discharge for just cause: This could include violation

of rules, unsatisfactory work performance, or improper conduct.

. . . .

(Emphasis added). A common sense reading of the employee handbook defeats Rhymer's contention. The phrase mentioning "just

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cause" was placed in the employee handbook under the "LOSS OF

SERVICE" heading. The handbook defines "service" as "the time that

the employee has worked for the Company. It gives the employee certain preferences or ranking when decisions must be made in regard

to promotions, reduction in forces and determination of eligibility for

the various benefits." (Emphasis added). "Discharge for just cause" is

simply one of the ways in which "service" time can be lost. Thus, the

phrase is not used as an explicit "just cause" provision which would

limit the company's ability to terminate employees. Indeed, nowhere

in the handbook does it say that an employee can be discharged only

for just cause.

In addition, Virginia recognizes the concept of mutuality of

engagement. See Town of Vinton v. City of Roanoke, 80 S.E.2d 608,

617 (Va. 1954) (noting that "there must be absolute mutuality of

engagement, so that each party has the right to hold the other to a positive agreement.") (citations omitted). "Notions of fundamental fairness underlie the concept of mutuality which extends a corresponding

freedom to the employer." Miller, 362 S.E.2d at 917. "It is hornbook

law that a contract terminable at the will of one party is terminable

at the will of the other. . . ." Hicks v. Freeman, 397 F.2d 193, 194-95

(4th Cir. 1968). Rhymer testified in his deposition that he would have

been free to quit his job with Yokohama anytime he wished. He also

admitted that he had looked at the employee handbook and found no

guarantee of employment. In light of the language in the employee

handbook and Rhymer's admissions during his deposition, we agree

with the district court's determination that Rhymer has not offered

sufficient evidence to rebut the presumption that he was an at-will

employee.

III.

The district court's award of summary judgment to Yokohama Tire

Corporation is affirmed.

AFFIRMED

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