UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS A. CRAMER,

Plaintiff-Appellant,

v.

No. 97-2775

INTELIDATA TECHNOLOGIES

CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-97-344-A)

Submitted: November 30, 1998

Decided: December 31, 1998

Before WILKINS and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Jeffrey Peter O'Connell, LAW OFFICE OF JEFFREY P.

O'CONNELL, Fairfax, Virginia, for Appellant. Christine H. Perdue,

Elizabeth A. Lalik, HUNTON & WILLIAMS, McLean, Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Thomas A. Cramer appeals the district court's order granting summary judgment in favor of Intelidata Technologies Corporation

(Intelidata), formerly U.S. Order, and dismissing his claim of age discrimination in violation of the Age Discrimination in Employment

Act (ADEA). See 29 U.S.C. §§ 621-634 (1994). Cramer filed this suit

following his termination from his position as vice-president for new

product development with Intelidata. Although Cramer's supervisors

explained that his termination was a result of Intelidata's financial

decision to eliminate his primary areas of responsibility with the company, Cramer believed that the adverse employment action was the

result of impermissible age discrimination.*

On this belief, Cramer filed his civil action. After significant discovery, Intelidata filed a motion for summary judgment. The district

court concluded that Cramer could not prove his case either through

direct evidence of discrimination or establish a prima facie case to

raise a presumption of age discrimination. On this conclusion, the district court granted summary judgment in favor of Intelidata and dismissed the action. Cramer appeals this final order.

This court reviews the grant of summary judgment in discrimination cases de novo. See Henson v. Liggett Group , 61 F.3d 270, 274

(4th Cir. 1995). Under the ADEA, an eligible employee can seek

redress for unfavorable employment action where the employee's age

was a determining factor in the action. See Tuck v. Henkel Corp., 973

F.2d 371, 374 (4th Cir. 1992). There are two avenues of proof by

_________________________________________________________________

*Cramer also brought state law claims for wrongful termination and

under the Virginia Human Rights Act. See Va. Code Ann. §§ 2.1-714 to

725 (Michie 1995 & Supp. 1998). The district court dismissed these

claims and Cramer has not challenged that ruling in this appeal.

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which an aggrieved employee can prove a violation of the Act. See

Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996), cert.

denied, ___ U.S. ___, 65 U.S.L.W. 3623 (U.S. Mar. 17, 1997) (No.

96-1040). The first is by employing "ordinary principles of proof

using any direct or indirect evidence relevant to and sufficiently probative of the issue." Tuck, 973 F.2d at 374. To overcome Intelidata's

motion for summary judgment based on this first avenue of proof,

Cramer must produce "direct evidence of a stated purpose to discriminate [on the basis of age] and/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., 836 F.2d 845, 848 (4th Cir. 1988)). The district court

concluded that Cramer had failed to present direct evidence that was

sufficiently probative to the issue of whether Intelidata had discriminated against him.

On appeal, Cramer contends that the district court erred in reaching

this conclusion. Cramer correctly notes that remarks by supervisors

may be direct evidence of age discrimination. See Wilhelm v. Blue

Bell, 773 F.2d 1429, 1433-34 (4th Cir. 1985). In doing so, Cramer

recounts the numerous comments regarding his age, hairpiece, dentures, and sexual ability that he alleges his immediate supervisor,

Joseph Smith, rained down on him.

Even assuming that the evidence Cramer presented in opposition to

Intelidata's motion for summary judgment was direct evidence of discrimination, Intelidata was still properly entitled to summary judgment. In order for the alleged discriminatory statements to be

probative of age discrimination, there must be a nexus between the

statements by Smith and the decision-making process. See Clay

Printing, 955 F.2d at 942 (explaining nexus requirement); see also

Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.

1994) (noting insufficiency of "isolated" comments, even those of

decision-makers, to support finding of discrimination); Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994) (stating

that age-related comments made by non-decision-makers are not

material in showing action was based on age discrimination).

Cramer has failed to establish this nexus. Few of Smith's alleged

comments linked Cramer's age with his job performance. More

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importantly, Cramer's termination was based on Intelidata's decision

to eliminate the projects that constituted the majority of Cramer's

responsibilities with Intelidata. Consequently, the evidence of record

shows that Cramer's termination had nothing to do with Smith's perception regarding Cramer's ability to perform his duties and everything to do with the fact that the bulk of Cramer's duties would no

longer be a part of the work done by Intelidata. Cramer has the burden

to show "that age was a determining factor in the action in the sense

that but for [Intelidata's] intent to discriminate on the basis of age,

[Cramer] would not have been subjected to the employment action."

Clay Printing, 955 F.2d at 941 (internal quotation marks omitted). In

light of the stated reasons for his termination, this is a burden Cramer

failed to shoulder.

The second avenue by which a plaintiff may survive a motion for

summary judgment allows an employee to proceed in the absence of

direct evidence of discrimination pursuant to a modified version of

the proof scheme set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802 (1973). Under that scheme, an employee can establish

a prima facie case of age discrimination by showing that: (1) he is a

member of the protected age group (over 40 years old); (2) he suffered an adverse job action; (3) he was performing at a level that met

his employer's legitimate expectations; and (4) there was adequate

evidence to create an inference that the adverse action was based on

the employee's age, including evidence that he was replaced by someone of comparable qualifications who was "substantially younger."

See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,

313 (1996) (modifying the fourth element of the scheme); Burns, 96

F.3d at 731 n.1.

In this case, the district court concluded that Cramer had failed to

establish a prima facie case of discrimination under the modified

proof scheme because Cramer had failed to show either that he was

replaced by someone who was "substantially younger" or other evidence to create an inference of an impermissible motivation. Because

his position was terminated contemporaneously with the decision not

to retain Cramer, Intelidata did not hire anyone to replace Cramer

after he was terminated. The person who assumed the duties that

remained following Cramer's termination was only five years younger than Cramer, and not therefore "substantially younger" than

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Cramer in the absence of additional evidence. See O'Connor, 517

U.S. at 312.

Cramer strenuously objects to the district court's conclusion that

there was inadequate evidence to create an inference of an impermissible motivation for Cramer's termination. Even assuming Smith's

comments were sufficient to create such an inference, the district

court did not err in granting summary judgment in favor of Intelidata.

If an employee establishes a prima facie case, the burden of production then shifts to the defendant employer who can rebut the prima

facie case by presenting evidence of legitimate, non-discriminatory

reasons for its action. See Burns, 96 F.3d at 731 (quoting Tuck, 973

F.2d at 375). The employee must then show that the employer's proffered reason was not the "true reason for the employment decision."

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508 (1993) (quoting

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256

(1981)). The burden of persuasion remains with the employee at all

times. See Burns, 96 F.3d at 731.

Once Intelidata meets its burden of production, Cramer "must bear

the burden of proving that he was the victim of intentional discrimination. He can do this by demonstrating that [Intelidata's] proffered reason was a mere pretext and that, as between [his] age and

[Intelidata's] explanation, age was the more likely reason for the dismissal." Herold v. Hajoca Corp., 864 F.2d 317, 319 (4th Cir. 1988)

(citing EEOC v. Western Elec. Co., 713 F.2d 1011, 1014 (4th Cir.

1983)); see also Halperin v. Abacus Technology Corp., 128 F.3d 191,

201 (4th Cir. 1997). In this case, Intelidata met its burden of production. There was ample evidence of record that Cramer's new product

and new business development projects, which made up the bulk of

his responsibilities, were eliminated as unproductive and unprofitable.

In light of the elimination of his duties, Intelidata terminated Cramer.

This reason meets Intelidata's burden of production.

Cramer suggests that the proffered reason was not the true reason

for his termination by suggesting that Intelidata underrepresents his

role in the company. In support of this contention, Cramer points to

his position description published by Intelidata shortly before his termination. Cramer claims on appeal that the responsibilities Intelidata

eliminated accounted for only ten percent of his time. However,

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Cramer testified in his deposition that his time spent on new product

development was more than fifty percent and twenty-five to thirty

percent on new business development. This leaves less than twentyfive percent to the projects that Cramer contends Intelidata has

ignored in deciding to terminate his position.

In attempting to show that Intelidata's proffered reason was pretextual, Cramer questions the wisdom of abandoning new business and

sales development in a company that has recently been unprofitable.

Cramer also attacks the "simplistic" nature of Intelidata's proffered

reason. However, the crucial issue in an ADEA action is an unlawfully discriminatory motive for a defendant's action, not the wisdom

or folly of its business judgment. See Jiminez v. Mary Washington

College, 57 F.3d 369, 383 (4th Cir. 1995).

Cramer notes that two of his product development projects continued for some period after Intelidata terminated his position. The

record demonstrates that Intelidata at least engaged in the "winding

down" of those projects after Cramer's termination. This evidence

does not create an issue of material fact with respect to whether Intelidata's proffered reason for Cramer's termination was false. As a

result, even assuming that the evidence of Smith's allegedly inappropriate comments was sufficient to create an inference of an impermissible motivation for Cramer's termination, Cramer has failed to show

that the proffered legitimate business reason for the employment

action was merely pretext. The district court did not err in concluding

that summary judgment was appropriate.

Because Cramer failed to present sufficient evidence of illegal age

discrimination either through direct evidence or the modified

McDonnell Douglas proof scheme, we find that the district court did

not err in granting summary judgment for Intelidata and dismissing

the action. The district court's order is hereby affirmed. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument

would not aid the decisional process.

AFFIRMED

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