PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANCES D. BURNS,

Plaintiff-Appellant,

v.

AAF-MCQUAY, INCORPORATED, a

No. 95-2831

Minnesota Corporation,

Defendant-Appellee.

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Amicus Curiae.

Appeal from the United States District Court

for the Western District of Virginia, at Harrisonburg.

James H. Michael, Jr., Senior District Judge.

(CA-94-49-H)

Argued: June 3, 1996

Decided: September 23, 1996

Before ERVIN and MOTZ, Circuit Judges, and SPENCER,

United States District Judge for the Eastern District of Virginia,

sitting by designation.

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Affirmed in part and reversed and remanded in part by published

opinion. Judge Ervin wrote the opinion, in which Judge Motz and

Judge Spencer joined.

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COUNSEL

ARGUED: Stephanie Rader Sipe, LITTEN & SIPE, Harrisonburg,

Virginia, for Appellant. Paul D. Ramshaw, UNITED STATES
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. Bruce McCoy Steen, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,

for Appellee. ON BRIEF: Donald D. Litten, Sr., LITTEN & SIPE,

Harrisonburg, Virginia, for Appellant. C. Gregory Stewart, General

Counsel, Gwendolyn Young Reams, Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, UNITED STATES

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae. J. Robert Brame, III, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Charlottesville, Virginia,

for Appellee.

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OPINION

ERVIN, Circuit Judge:

Frances Burns sued her former employer, AAF-McQuay, Inc.,

alleging that she was demoted and constructively discharged in violation of the Age Discrimination in Employment Act ("ADEA"), 29

U.S.C. § 621 et seq. The magistrate judge found a genuine issue of

material fact as to whether AAF-McQuay's asserted reasons for the

demotion were pretextual. The district court disagreed, finding insufficient evidence of pretext or of constructive discharge, and entered

summary judgment in favor of AAF-McQuay. We affirm the court's

finding that Burns failed to prove constructive discharge, but reverse

and remand for trial on the question of whether she was demoted illegally.

I

Federal question jurisdiction over ADEA actions is appropriate

under 28 U.S.C. § 1331. This court has appellate jurisdiction over the

district court's summary judgment under 28 U.S.C.§ 1291. We

review the district court's summary judgment de novo, e.g., Higgins

v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir.

1988), viewing the evidence in the light most favorable to the nonmoving party. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587-88 (1986).

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II

The district court stated the facts in the light most favorable to

Burns:

The plaintiff, Frances D. Burns, was employed by the

defendant, AAF-McQuay, Inc., for approximately sixteen

years at the defendant's facility in Staunton, Virginia. The

plaintiff was the secretary to the human resources manager

until her reassignment to the position of switchboard operator. Approximately one month after her reassignment, the

plaintiff resigned her employment with the defendant. From

1978 to 1991, the plaintiff was supervised by Chuck Welsh

(Welsh). From 1991 to 1992, the plaintiff was supervised by

Gary Alderson (Alderson). In 1992, Stephen B. Horney

(Horney) became the human resources manager and the

plaintiff's supervisor. Horney was the plaintiff's supervisor

at all times relevant to this matter.

 The plaintiff claims that supervisors Welsh and Alderson

consistently evaluated the plaintiff's performance as "commendable" or "excellent." The plaintiff claims that she

maintained good working relationships with both Welsh and

Alderson and that neither supervisor criticized her work performance. Alderson testified that the plaintiff was an excellent employee and that her job was definitely not in jeopardy

because of her work performance.

 The defendant claims, however, that Horney became dissatisfied with the plaintiff's performance.

* * *

 In February 1994, Horney transferred the plaintiff to the

position of switchboard operator and replaced the plaintiff

with Donna Brown, then thirty-nine years of age. On March

4, 1994, the plaintiff resigned from the company. At the

time of her transfer, the plaintiff was sixty-five years of age,

and Horney was forty-six years of age.

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Memorandum Opinion at 2-4.

III

A

The Fourth Circuit recognizes two avenues of proof by which an

employee can prove an ADEA violation: "(1) under ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue, or (2) under a judicially created proof

scheme originally used in the Title VII context in McDonnell Douglas

Corp. v. Green . . . and subsequently adapted for use in ADEA cases."

Tuck v. Henkel Corp., 973 F.2d 371, 374-75 (4th Cir. 1992) (citing,

inter alia, McDonnell Douglas, 411 U.S. 792 (1973)), cert. denied,

507 U.S. 918 (1993). The district court determined that Burns had

failed to create a genuine issue of material fact under either framework.

On appeal, Burns relies only on the McDonnell Douglas scheme.

We described its operation in Tuck:

[T]he employee must first establish a prima facie case of

age discrimination by showing that (1) he is a member of

the protected age group (over 40); (2) he was discharged or

demoted; (3) at the time of discharge or demotion he was

performing his job at a level that met his employer's legitimate expectations; and (4) following his discharge or demotion, the plaintiff was replaced by someone of comparable

qualifications outside the protected class.1 Such a prima

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1 In April the Supreme Court reversed a decision of the Fourth Circuit

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

(1996). The Court took no position on the applicability to the ADEA of

the McDonnell Douglas framework:

In assessing claims of age discrimination brought under the

ADEA, the Fourth Circuit, like others, has applied some variant

of the basic evidentiary framework set forth in McDonnell

Douglas. We have never had occasion to decide whether that

application of the Title VII rule to the ADEA context is correct,

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facie case creates only an inference of age discrimination,

which the employer can then rebut by presenting legitimate,

non-discriminatory reasons for the termination. If the

employer rebuts the employee's inference of age-based discrimination, the employee can still prevail by demonstrating

by a preponderance of the evidence that the defendant's

proffered reason was a pretext for discrimination. To make

this demonstration, the employee must show that as between

the plaintiff's age and the defendant's explanation, age was

the more likely reason for the dismissal, or that the employer's proffered explanation is simply "unworthy of credence."

The burden of persuasion remains with the plaintiff throughout.

973 F.2d at 375 (emphasis added) (citations omitted).

The district court found that Burns had satisfied the requirements

of the prima facie case, so the burden of production shifted to AAFMcQuay to demonstrate nondiscriminatory reasons for demoting her.

Moreover, the court agreed that Burns had responded to AAFMcQuay's asserted reasons with sufficient evidence that a jury could

disbelieve some of them. It concluded, however, that she had not created a jury issue because her evidence failed to challenge two of the

reasons.

Burns contends on appeal that her evidence, while perhaps failing

to rebut each of AAF-McQuay's reasons individually, is sufficient in

the aggregate that a jury reasonably could find all of AAF-McQuay's

proffered reasons to be pretextual. She is joined in that position by the

EEOC, as amicus curiae. The McDonnell Douglas framework, the

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but since the parties do not contest that point, we shall assume

it.

116 S. Ct. at 1309-10 (citations and footnote omitted). The Court did

modify the framework somewhat, however, by ruling that the worker

who replaces an ADEA plaintiff need not be outside the protected class:

"The fact that one person in the protected class has lost out to another

person in the protected class is thus irrelevant, so long as he has lost out

because of his age." Id. at 1310.

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EEOC argues, does not require a plaintiff to refute every nondiscriminatory reason offered by the employer. A particular reason may be

"so arbitrary or unreasonable that a factfinder may infer, on that

ground alone, that the challenged decision was not actually based on

that reason, and that the reason is a pretext for discrimination." Or,

it continues, the plaintiff's evidence undermining some of the defendant's asserted reasons might lead a jury to believe that the remaining

reasons also are pretextual.

Burns's and the EEOC's proposed application appears compelling

in a vacuum, because an employer should not be able to avoid trial

by offering flimsy excuses. But the McDonnell Douglas framework

is not a vacuum. It is a cousin of res ipsa loquitur that effectively

shifts the burden of production by allowing a plaintiff to get to the

jury on her own flimsy evidence, without proving a discriminatory

motive, if the employer cannot show a nondiscriminatory motive. It

does not shift the burden of proof, however, but offers an alternate

means by which a plaintiff may prove the same ultimate point:

Despite the "minutiae of the various proof schemes set forth

in McDonnell Douglas," we emphasized in Birkbeck v. Marvel Lighting Company, 30 F.3d 507, 511 (4th Cir.[ ]), [cert.

denied, 115 S. Ct. 666 (1994),] that the"straightforward"

question to be answered in discrimination cases is whether

the plaintiff has successfully demonstrated that she was the

victim of age discrimination on the part of the employer. To

withstand summary judgment, [a claimant] must produce

direct 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., Inc., 836 F.2d 845, 848 (4th

Cir. 1988)).

Henson v. Liggett Group, Inc., 61 F.3d 270, 275 (4th Cir. 1995).

Therefore, if the plaintiff offers nothing to disprove the defendant's

nondiscriminatory explanations, the explanations' weakness alone is

insufficient to create an issue of pretext. Instead, the burden of production returns to the plaintiff to present affirmative evidence of agebased animus.

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The district court found that Burns's evidence was insufficient to

reach the jury under the traditional proof scheme. Even if we accept

that conclusion, however, it is not dispositive of the pretext question

under the McDonnell Douglas framework. A showing of pretext

demands the same type of proof--affirmative evidence of discriminatory intent--required under traditional principles, but not necessarily

the same quantum. Affirmative proof that alone does not suffice

under the traditional scheme may, when combined with the weakness

of the defendant's asserted nondiscriminatory reasons, create a prima

facie case of pretext.

Burns reports several incidents that, she contends, reveal Horney's

age-based animus toward her. She alleges that Horney"told her that

she did not `fit into [his] group,'""accused her of walking around like

a `ten-year-old' even though she was sixty-five," "questioned her

about her plans to retire," and "threaten[ed] to demote her." Burns

also points to concerns Horney expressed about the quality of her

work, including typographical errors. Horney was asked in his deposition what he thought might have caused Burns's unsatisfactory performance:

A. My guess is that would probably link with the loss

of skills. Again, that's just a general statement.

Q. Loss of skills. What would be a cause of loss of

skills?

A. I don't know. It's by virtue of not doing it enough

or doing too much or whatever. I don't know as far as why

do people lose skills. Why do you lose your memory? Why

do you have problems reading? Is it your eyeglasses? I don't

know. Inability to concentrate, I guess, would probably

incorporate all of those in potential loss of skill.

Q. Do you think her age had anything to do with her

loss of skills?

A. I don't know. That's not my--I don't know. I've

seen people that had skills that were younger and for some

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reason lost skills, inability to adapt to an environment. I

don't know if that's a good analogy. And then I think people

who are older have the willingness and ability to do outstanding work. So as far as the age issue, probably it didn't

cross my mind, no.

The district court held that this proof was insufficient to create a

genuine issue of fact under the traditional scheme: "`[I]solated and

ambiguous statements . . . are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.'"

Memorandum Opinion at 11 (quoting O'Connor v. Consolidated Coin

Caterers Corp., 56 F.3d 542, 548-49 (4th Cir. 1995), rev'd on other

grounds, 116 S. Ct. 1307 (1996) (internal quotations omitted)). We

agree. The evidence cited indicates that Horney was cognizant of

Burns's age, and associated it with deficiencies in her performance.

But demotion based on performance does not violate the ADEA, even

if the employer believes that the performance problems are agerelated. For example, if a professional athlete loses his speed, his team

will not have to keep him just because the coaches believe that the

loss is attributable to age.

Nevertheless, evidence of the weakness of AAF-McQuay's nondiscriminatory reasons bolsters Burns's ambiguous affirmative proof.

AAF-McQuay cited approximately eighteen incidents that allegedly

motivated its demotion of Burns, but the district court found that

Burns cast into doubt all but two--"six to ten typographical errors

. . . , and the . . . failure to schedule the arbitration meeting." A jury

might find that those two incidents truly motivated AAF-McQuay's

demotion of Burns, or it might disbelieve Burns's contradictory evidence and conclude that all eighteen incidents contributed to the decision. However, if the jury accepts Burns's evidence contradicting

sixteen of the eighteen incidents, and her proof that Horney made

ambiguous comments about her age, it might reasonably conclude

that AAF-McQuay used the two remaining incidents as a pretext for

age-based discrimination.

B

The district court acknowledged, and AAF-McQuay does not dispute, that Burns's demotion constituted an "unfavorable employment

 8
action." Thus, if prompted by an illegal motive, it would be compensable under the ADEA. The court rejected, however, Burns's contention "that the defendant's continued hostility toward the plaintiff

coupled with the demoralizing effect of her reassignment forced her

to resign her employment and thereby constitute[d] a `constructive

discharge.'" Memorandum Opinion at 7. To prove constructive discharge, the district court noted, a plaintiff must show that the

employer intended to induce the plaintiff to quit. E.g., Bristow v.

Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985), cert. denied,

475 U.S. 1082 (1986). Moreover, the plaintiff must prove that "a reasonable person in the employee's position would have felt compelled

to resign" by the employer's actions. Id.

The district court held that Burns failed under both prongs. Burns

"assumed" that Horney intended her to resign, the court pointed out,

from Horney's alleged arrogance, disrespect, unkindness, and hostility, even though other employees testified that Horney acted arrogantly toward them, also. The court held that a jury could not

reasonably make the same assumption.

On appeal, Burns attempts to distinguish Horney's treatment of her

from his treatment of other employees. Her demotion itself, she

argues, belies Horney's intent to force her out. Moreover, after Horney demoted her, he harassed her for reading the newspaper at the

switchboard on her own time, criticized her for not opening the

switchboard on time when she actually had opened it early, and inexplicably threatened to fire her one day upon her return from lunch.

We agree with Burns that AAF-McQuay has not presented evidence of equivalently offensive conduct by Horney toward other

employees. However, even if Horney particularly disliked Burns, that

alone does not support an inference that he intended to force her to

resign.2 The district court correctly determined, therefore, that Burns

had failed to present sufficient evidence of constructive discharge.

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2 Because Burns presented insufficient evidence that Horney intended

to force her out, we need not address the tolerability of her working conditions.

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IV

Burns's affirmative evidence of discrimination is sufficient, when

combined with evidence that AAF-McQuay's asserted reasons for

demoting her were insubstantial, to create a genuine issue of material

fact as to whether those reasons were a pretext for age-based discrimination. However, Burns has not presented sufficient evidence of constructive discharge. Consequently, we affirm the court's summary

judgment on the question of constructive discharge, but reverse and

remand for a jury determination of whether the demotion violated the

ADEA.

AFFIRMED IN PART AND REVERSED AND

REMANDED IN PART

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