UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOAN M. TOLLEY,

Plaintiff-Appellant,

v.

HEALTH CARE AND RETIREMENT

No. 96-2094

CORPORATION, INCORPORATED, d/b/a

HCR West Nursing Center,

Incorporated,

Defendant-Appellee.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge.

(CA-95-1510-6-3)

Argued: October 31, 1997

Decided: January 21, 1998

Before MURNAGHAN, WILKINS, and NIEMEYER,

Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Edwin Lake Turnage, Travelers Rest, South Carolina, for

Appellant. James Derrick Quattlebaum, HAYNSWORTH, MARION,

MCKAY & GUERARD, L.L.P., Greenville, South Carolina, for

Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Joan M. Tolley, a licensed practical nurse, was discharged by her

employer on October 20, 1994, after Tolley filled in a patient's chart

for a colleague, making the chart false. At the time, Tolley was 51

years old. She filed this action under the Age Discrimination in

Employment Act, 29 U.S.C. § 636, contending that her employer discriminated against her because of her age or retaliated against her

because she "took up for" a 51-year-old co-employee who had been

discharged several months earlier. Tolley also contended that her discharge breached a contract of employment under South Carolina common law. The district court granted the employer's motion for

summary judgment, and we affirm.

I

Since 1988, Tolley had been employed by Health Care and Retirement Corp., Inc. ("HCR") at its Oakmont West facility in Greenville,

South Carolina. In March 1994, she received a copy of an HCR handbook which sets forth employees' rights and obligations. At the time

that Tolley received the handbook, she signed an acknowledgment

which indicated that she had received and read the handbook and

which explained the nature of her employment relationship. It

included an acknowledgment that Tolley was an "at-will employee"

and that the employee did not have a contract of employment unless

it was in writing on a document signed by both her and the president

of HCR. Tolley contends that she did not read the text of the signed

acknowledgment because she was not given an opportunity to peruse

it. She indicates, moreover, that she would not have understood the

acknowledgment had she read it.

Up until June 1994, Tolley had encountered no problems at HCR.

Indeed, only the month before she received an award as the employee

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of the month. In June, however, HCR fired Tolley's supervisor, Mary

Lamm, who was 51, and replaced her with Barbara Daniel, a younger

woman. Tolley publicly protested Lamm's discharge, and HCR seems

to have experienced a certain amount of employee tension as a result

of the appointment of Daniel.

In August 1994, Daniel promoted Tolley to unit manager. Daniel

gave Tolley a performance plan specifically designed for Tolley in

her new position. Tolley claims that the tasks and standards outlined

by this performance plan were impossible to meet. A few weeks later,

Tolley resigned from her position as unit manager, citing chronic

stress disorder and deteriorating health. As unit manager, Tolley was

given a 29 cent per hour raise, bringing her total wage to $11 per

hour. According to her, when a 22-year-old was elevated to unit manager after Tolley's subsequent discharge in October, the younger

woman allegedly was to receive $13.10 an hour.

After resigning as unit manager, Tolley alleges that Daniel criticized her constantly and was reluctant to grant her leave. She contends that younger employees were not similarly criticized nor did

they encounter similar resistance to requests for time off. On September 8, Tolley met with her supervisors about her performance and

attendance problems and left the meeting in tears. She alleges she was

told that if she left the meeting to resolve herself, she would be fired.

In early October, due to an administrative error, Jackie Anderson,

also a nurse at Oakmont West facility, failed to give a patient required

medication and failed to indicate that she had done so on the patient's

chart for four days. During the same period, however, Tolley continued to administer the medication to the patient when she was on duty.

On October 11, when Tolley discovered that the patient's chart was

incomplete for four days, failing to reveal that Anderson had administered the required medicine, Tolley initialed the chart for Anderson,

thereby indicating that the patient had been given the medication by

Anderson. Tolley then called Anderson, who ratified Tolley's initialing the chart for her. Tolley claims that she initialed the chart for

Anderson because she had thought that Anderson had given the

patient the medication and that in those circumstances it was routine

for nurses to fill in charts for other nurses. She did not realize, however, that Anderson had not administered the medication. Accord-

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ingly, as it turned out, Tolley's entries created a false medical record

for the patient.

When HCR supervisors first learned of this situation, they

informed Tolley and Anderson that they would receive warnings for

their actions. But on October 20, 1994, each was given a choice of

resigning or being fired. Anderson, who was 42 years old, elected to

resign; Tolley did not elect to resign and was fired. Sometime after

October 20, Daniel indicated to Anderson she had done nothing

wrong. Furthermore, the director at Oakmont West told her that she

could come back to work at Oakmont West sometime in the future.

Tolley contends that other nurses at Oakmont West filled in blanks on

patients' charts and had engaged in other poor record-keeping practices, but that no one else was fired for these practices.

Tolley filed suit in a South Carolina state court, alleging age discrimination, retaliation, slander, breach of contract, and breach of

contract accompanied by a fraudulent act. HCR removed the action

to federal court where the slander claims were subsequently dropped.

The district court thereafter entered summary judgment for the

employer, concluding that Tolley had failed to make out a prima facie

case of discrimination; that no employment contract ever existed; and

that Tolley had defaulted her retaliation claim because she did not

exhaust her administrative remedies.

II

To establish a prima facie case of discrimination in the enforcement of employee disciplinary measures under the ADEA, the plaintiff must show: (1) that she is a member of the class protected by the

ADEA; (2) that the protected conduct in which she engaged was

comparable in seriousness to misconduct of employees substantially

younger than she; and (3) that the disciplinary measures enforced

against her were more severe than those enforced against those other

employees. Cf. Cook v. CSX Transp. Corp. , 988 F.2d 507, 511 (4th

Cir. 1993) (applying test to Title VII); see also O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct. 1307, 1310 (1996). Once a

plaintiff has made out a prima facie case that disciplinary measures

were discriminatorily taken, the employer must articulate a "legitimate, nondiscriminatory reason" for the adverse employment action.

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See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

252-53 (1981). Finally, the plaintiff must rebut the defendant's proffered reason with evidence that the employer's reason was a pretext,

and that the discipline was instead imposed for discriminatory reasons. Id.; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

506-07, 515 (1993).

In this case, we agree with the district court's conclusion that Tolley had not sufficiently supported her claim that she was treated more

harshly than younger employees. Tolley's case rests primarily on the

affidavits of three of her co-workers. The first affidavit, given by

Anderson, states that Anderson, who was 42 years old but still substantially younger than Tolley, was told that she would be able to

come back and work at HCR in the future. Tolley was not so told. The

second affidavit is from Estelle Edwards, stating that, on one previous

occasion at HCR forms were falsified to indicate that unadministered

medication had been administered. The affidavit also states that Daniel was "aware that many nurses were filling in blanks" on patient

charts. The third affidavit, given by Rhonda Hooper, states that the

performance plan given to Tolley as unit manager was impossible to

meet and that Beth Warner, who became unit manager after Tolley

had been discharged, was to receive $13.10 an hour, over $2 an hour

more than Tolley had been paid when she held the unit manager job

several months earlier. Hooper also states that Daniel often filled in

blanks for other nurses and that Tolley was treated more harshly than

other nurses, "particularly the nurses under the age of forty," for her

alleged tardiness and misconduct.

The first affidavit does not advance Tolley's position. Although

Tolley and Anderson were both involved in the same conduct of completing false records, they were also both given the option to resign

or be fired for that act. Thus, their discipline was virtually identical.

Otherwise, however, their circumstances differed. While Anderson

elected to resign, Tolley refused to resign and therefore was fired.

Tolley was the person who created the false record, and Anderson's

input is ambiguous. And finally Tolley had been cited for tardiness

and attendance problems in the previous months. While Anderson

may have been told that she might be rehired at some later date, such

a speculative disparity, in these circumstances, is not enough as a

matter of law to constitute differential treatment. The fact remains

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that in response to the creation of the false charts, HCR took identical

action with respect to both Tolley and Anderson.

The Edwards' affidavit indicates that a falsification of forms took

place on at least one other occasion, but it does not indicate how or

if the employees who falsified the records were disciplined. It also

fails to state the names or ages of the persons falsifying the records.

Thus, no inference that younger workers were treated less harshly

than older workers can be drawn from this affidavit.

Finally, Hooper's affidavit provides Tolley with little or no support

for similar reasons. First, even though Hooper states that Tolley's performance plan was impossible to complete, the affidavit does not

compare her plan with those given to other, younger employees. Second, the affidavit's statement about Daniel filling in blanks for other

nurses does not indicate that Daniel falsified any records. Tolley was

fired for creating a false record, not for filling out blanks without

authorization. Third, Hooper's statement that Tolley and Warner were

paid different rates does not compare similar jobs at the same period.

Tolley's resignation from the unit manager post may have required

greater compensation for the position, or Warner may have been

given more responsibility. The record is blank on these issues. And

finally, Hooper's statement that Tolley was treated harsher than younger workers, while relevant, is excessively general. It describes no

particular parties or instances. A party cannot make out a prima facie

case of discrimination by producing an affidavit that states, at a high

level of generality and without supporting facts, simply that older

workers are treated more harshly than younger employees.

In short, we conclude that a reasonable jury could not return a verdict favorable to Tolley for age discrimination on these facts.

III

Tolley also contends that HCR retaliated against her because she

publicly protested the discharge of her former supervisor, Lamm, who

was 51. The only evidence that Tolley advances to support this claim,

however, is the single fact that Tolley was discharged four months

later. "Temporal proximity . . . is simply too slender a reed on which

to rest a . . . retaliatory discharge claim." Wagner v. Wheeler, 13 F.3d

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86, 91 (4th Cir. 1993) (stated in the context of a 42 U.S.C. § 1983 discrimination claim); see also Hughes v. Bedsole , 48 F.3d 1376, 1387

(4th Cir. 1995).

IV

Tolley also contends that HCR breached a contract created when

it issued its employee handbook to her. She contends that termination

of employment for "falsifying" as used in the handbook is ambiguous

as to whether it requires scienter, and therefore that the interpretation

of the contract should be submitted to the jury.

The substance of Tolley's contract claim is governed by South Carolina law. In South Carolina, "a contract for permanent employment

of an indefinite duration, which is not supported by any consideration

other than the obligation of service to be performed on the one hand

and wages to be paid on the other, is terminable at the will of either

party." Satterfield v. Lockheed Missiles & Space Co., 617 F. Supp.

1359, 1361 (D.S.C. 1985). In the right circumstances, however, an

employee handbook can create a binding employment contract, see

Small v. Springs Indus., Inc., 357 S.E.2d 452, 454-55 (S.C. 1987), and

if an employer wishes the handbook not to form the basis of a contract, it must include a conspicuous disclaimer in the handbook. See

id.; Marr v. City of Columbia, 416 S.E.2d 615, 616 (S.C. 1992);

Johnson v. First Carolina Financial Corp., 409 S.E.2d 804, 806 (S.C.

Ct. App. 1991).

In this case, the employee handbook contained an acknowledgment

page that specifically included a disclaimer making clear that employees were at-will employees, that they had no employment security,

and that no employee had an employment contract with HCR unless

the president of HCR agreed to the contract in an instrument signed

by the president. Tolley signed this acknowledgment page, indicating

that she had received the handbook and had read it. The fact that the

disclaimer was contained on a separate page that was to be severed

from the handbook, that was to be signed by the employee, and that

was to be included in the employee file made it, as a matter of law,

conspicuous. The whole purpose for having Tolley sign the disclaimer

was to bring to her particular attention that the employment was atwill and that the handbook did not create a contract. This, we con-

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clude, adequately addresses South Carolina's requirement that an

employer's disclaimer be "conspicuous."

Tolley contends, however, that even if the disclaimer disavowed

contractual rights, it did not do so in her case because she did not

have a chance to peruse and understand the disclaimer that she signed.

In South Carolina, however, "one who is capable of reading and

understanding but fails to read a contract before signing is bound by

the terms thereof." Sims v. Tyler, 281 S.E.2d 229, 230 (S.C. 1981).

The very first line of the acknowledgment she signed states, "I have

received a copy of the HCR Employee Handbook which includes

Rules for Your Protection and have read it carefully." She cannot now

disavow that document by claiming she did not read it.

Accordingly, we affirm the summary judgment entered by the district court.

AFFIRMED

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