UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HALL, MARVIN W.

v.

GIANT FOOD INC


98-7112a

D.C. Cir. 1999


*	*	*


Edwards, Chief Judge: On August 18, 1995, Marvin W.  Hall, who was
employed as a tractor trailer driver with Giant  Food, Inc. ("Giant"),
was discharged by Giant for repeated  acts of misconduct. A grievance
was filed on Hall's behalf by  his union, Local 639 of the
International Brotherhood of  Teamsters ("Local 639"), and the matter
was subsequently  submitted to arbitration. The arbitrator converted
Hall's  discharge to a disciplinary suspension and ordered his rein-
statement without back pay.


Following his reinstatement, Hall filed a charge with the  Equal
Employment Opportunity Commission ("EEOC"), al- leging for the first
time that his termination had been moti- vated by age discrimination.
Hall's claim was based on an  alleged discussion that he had with a
supervisor shortly after  his return to work. According to Hall, the
supervisor told  him that he was too old for the job and had been
terminated  for that reason. Hall, who was forty years old at the time
of  his termination, then sued Giant under the Age Discrimina- tion in
Employment Act ("ADEA"), 42 U.S.C. ss 621-34,  alleging that Giant
terminated him because of his age. The  District Court granted summary
judgment for Giant, and we  now affirm.


Hall cannot establish discrimination, either directly or indi- rectly,
because he has failed to raise a triable issue of  discriminatory
intent on the part of Giant, or to create a jury  question as to
Giant's asserted grounds for discharging him.  This is a
run-of-the-mill case concerning employee misconduct  and the
appropriateness of the disciplinary penalty imposed  therefor. The
issues in dispute here do not implicate the  federal laws against
discrimination. The matter was properly  submitted to arbitration and
resolved there. Hall may be  dissatisfied with the arbitrator's
judgment, but his mere  displeasure does not afford him a further


I. Background


On June 27, 1988, Giant hired Hall as a tractor trailer  driver. Until
1994, Hall apparently performed his job with-


out incident. Beginning in late 1994, however, problems  began to
arise. Between November 1994 and July 1995, Hall  was subject to
disciplinary actions for failure to properly  notify the company when
absent, driving company equipment  in an unsafe manner, and wasting
time on the job.


The incident that resulted in Hall's termination occurred on  August 4,
1995, when Lorin Turnblacer, a Giant driver super- visor, observed a
Giant truck illegally parked in a right turn  lane off of its
designated route. Turnblacer discovered that  Hall had been shopping
for motorcycle parts without record- ing the break on his "trip card."
Company policy requires all  drivers to maintain detailed records of
the start and end  times of all breaks and activities occurring during
the course  of their work shifts, and to record the times and
locations of  breaks at the start of those breaks. Company policy
further  prohibits shopping on company time and traveling off-route 
without an authorized reason. Abuse of these policies may  subject a


Following the August 4, 1995 incident, Turnblacer suspend- ed Hall,
citing violations of Giant's break and off-route poli- cies. On August
7, 1995, Turnblacer reported the facts of the  incident to Pamela
Sanford, Giant's General Manager of  Transportation. Sanford, in turn,
provided written notice of  Hall's suspension to union officials at
Local 639. Sanford also  relayed the information to Chris Balodemas,
Giant's Director  of Transportation, Traffic and Fleet Maintenance.
Although  Sanford is responsible for disciplining drivers who do not 
comply with company policies and procedures, she does not  have the
authority to terminate drivers. Upon review, Bal- odemas determined
that Hall's violation of multiple company  policies warranted
dismissal. On August 18, 1995, following a  grievance meeting between
Hall, Giant, and Local 639, Giant  terminated Hall. Hall was forty


On August 21, 1995, in accordance with the collective  bargaining
agreement between Giant and Local 639, union  officials filed a
grievance contesting Hall's termination. Giant  attempted to settle
the matter by offering to reinstate Hall if  he would sign a
conditional reinstatement agreement, but 


Hall declined this offer on three separate occasions. Negotia- tions
between the parties were ultimately unsuccessful, and  the matter
proceeded to arbitration. After "careful consider- ation," the neutral
arbitrator was "unable to conclude that the  discharge was for good
cause," but was also "unable to  conclude that [Hall's] offense ...
was 'minor.' " Arbitration  Statement and Award at 2, reprinted in
Supplemental Appen- dix ("S.A.") 27. The arbitrator believed that,
although Hall  had violated company rules, the penalty of discharge
was too  severe. Accordingly, he directed Giant to reinstate Hall with
 seniority, but denied Hall's request for back pay or benefits, 
instead treating the time off as a "disciplinary suspension."  Id.


On May 7, 1996, following his reinstatement, Hall filed a  charge with
the EEOC, alleging for the first time that his  termination had been
motivated by age discrimination. Hall's  claim was based on a
discussion that he had with Sanford  shortly after his return to work.
According to Hall's affida- vit, Sanford "informed [him] that the true
reason for [his]  termination was [his] age." Hall Affidavit p 6,
reprinted in  Appendix ("App.") 24. Sanford allegedly told Hall that
he  was "too old" for the job, and that she wanted him "to resign 
because [she] want[ed] younger and safer drivers in here."  Transcript
of Deposition Testimony at 41, reprinted in S.A.  90. The EEOC issued
a right-to-sue letter.


Hall then filed suit in District Court under the ADEA,  alleging, inter
alia, that Giant terminated him because it  wanted to replace him with
younger drivers. On May 27,  1998, the District Court granted Giant's
motion for summary  judgment. See Hall v. Giant Food Inc., No. 97-470
(D.D.C.  May 27, 1998) ("Memorandum"), reprinted in App. 4-12.  The
court found that Hall had established a prima facie case  of age
discrimination, that Giant had advanced legitimate  nondiscriminatory
reasons for Hall's termination, and that  Hall had failed to create a
jury question as to whether Giant's  stated reasons were pretextual.
See id. at 6, reprinted in  App. 9. In the court's view, the remark
allegedly made by  Sanford was of only limited probative value,
because it was  made eight months after the decision to terminate


because Balodemas, not Sanford, made the final decision to  terminate
Hall. See id. This appeal followed.


II. Analysis


A. Standard of Review


In reviewing a district court's grant of summary judgment,  we consider
the evidence de novo. See Aka v. Washington  Hosp. Ctr., 156 F.3d
1284, 1288 (D.C. Cir. 1998) (en banc).  "[A] party is only entitled to
summary judgment if the record,  viewed in the light most favorable to
the nonmoving party,  reveals that there is no genuine issue as to any
material fact."  Id.; see Fed. R. Civ. P. 56(c). "[S]ummary judgment
will not  lie if ... the evidence is such that a reasonable jury could
 return a verdict for the nonmoving party." Aka, 156 F.3d at  1288
(internal quotation marks omitted).


B. Age Discrimination Claim


The ADEA makes it "unlawful for an employer ... to  discharge ... or
otherwise discriminate against any individu- al [who is at least forty
years old] ... because of such  individual's age." 29 U.S.C. s
623(a)(1) (1994); see id.  s 631(a). In analyzing a discrimination
claim under the  ADEA, we apply the framework developed in the context
of  Title VII litigation, see Paquin v. Federal Nat'l Mortgage  Ass'n,
119 F.3d 23, 26 (D.C. Cir. 1997)--that is, where direct  evidence of
discriminatory intent is not available, a party may  establish
unlawful age discrimination by relying on the famil- iar
burden-shifting scheme first articulated in McDonnell  Douglas Corp.
v. Green, 411 U.S. 792, 802-05 (1973).


Under the McDonnell Douglas framework, the employee  must first
establish a prima facie case of prohibited discrimi- nation. See Aka,
156 F.3d at 1288. In the ADEA context,  Hall had to show that he
belongs in the statutorily protected  age group, he was qualified for
the position, he was terminat- ed, and he was disadvantaged in favor
of a younger person.  See Paquin, 119 F.3d at 26. If the employee
succeeds in  establishing a prima facie case, the burden "shifts to
the  employer to articulate legitimate, nondiscriminatory reasons 


for the challenged employment decision." Aka, 156 F.3d at  1288. The
employer must " 'clearly set forth, through the  introduction of
admissible evidence,' reasons for its actions  which, if believed by
the trier of fact, would support a finding  that unlawful
discrimination was not the cause of the employ- ment action." St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502,  507 (1993) (quoting Texas
Dep't of Community Affairs v.  Burdine, 450 U.S. 248, 254 (1981)). If
the employer does so,  the presumption of discrimination raised by the
prima facie  showing is rebutted and "drops from the case." Burdine,
450  U.S. at 255 & n.10. At that point, the employee "has an 
opportunity to discredit the employer's explanation," Aka, 156  F.3d
at 1288, by demonstrating that the proffered reasons are  a mere
pretext for discrimination, see Paquin, 119 F.3d at 26- 27. The
employee retains throughout the "ultimate burden of  persuading the
court that [he] has been the victim of inten- tional discrimination."


In the proceedings before the District Court, Hall relied on  a single
piece of evidence in support of his claim of age 
discrimination--namely, Sanford's alleged remark that Hall's  age was
the "true reason" for his termination, and that Hall  was "too old"
for the job of tractor trailer driver. In Hall's  view, this remark
constitutes both direct evidence of age  discrimination and indirect
evidence that Giant's stated rea- sons for his discharge were
pretextual. See Brief for Appel- lant at 8. Although Sanford denies
making the alleged  remark, see Sanford Declaration p 13, reprinted in
App. 17,  for the purposes of summary judgment, we must accept as 
true the allegations contained in Hall's affidavit. See Greene  v.
Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999) (holding that  district
court's grant of summary judgment for defendant  invaded jury's
province, because plaintiff's sworn affidavit was  sufficient to
support verdict against defendant, and credibility  determinations are
within "exclusive domain" of fact finder).  We conclude that the
District Court properly granted sum- mary judgment for Giant, because,
even if Sanford made the  remark, Hall cannot prove discrimination
either directly or  indirectly based solely on that evidence.


The District Court perceived this case as one proceeding  under the
McDonnell Douglas framework of indirect proof.  The court found that,
construing the facts in the light most  favorable to plaintiff, Hall
could establish the initial presump- tion of age discrimination based
on a prima facie showing that  he was forty years old at the time of
his termination, was  qualified for and performing the duties of his
driver position,  was terminated from that position, and was
disadvantaged  with respect to younger drivers who were retained in
Giant's  employ. See Memorandum at 6, reprinted in App. 9. The  court
further found that Giant effectively rebutted Hall's  prima facie case
by demonstrating that Hall had been disci- plined on several
occasions, including the instance directly  leading to his discharge,
and that several of the policies at  issue expressly provided for
termination in the event of  violations. See id. Finally, the court
determined that Hall  had failed to demonstrate that Giant's asserted
basis for  terminating him was a pretext for discrimination, because 
Hall's only evidence was the remark allegedly made by  Sanford during
a discussion that occurred eight months after  Hall was terminated,
and was not made by the party who  made the decision to discharge


There is absolutely nothing in this record to indicate that  Hall was
disadvantaged in favor of a younger person; thus,  there is a question
as to whether Hall even made out a prima  facie case. The District
Court found that Hall was disadvan- taged with respect to younger
drivers who were retained in  Giant's employ, but this finding is
baffling on this record.  Hall was reinstated pursuant to arbitration,
so he did not lose  his job. He lost wages and benefits during the
time of his  disciplinary suspension, but these losses indisputably
resulted  from Hall's misconduct, not his age. In other words, the 
arbitrator found that Hall was guilty of misconduct as alleged  by
Giant, so a disciplinary suspension was found fully justi- fied.
Claims of age discrimination were never even raised in  arbitration.
We need not pursue this line of inquiry, howev- er, for the parties'
arguments on appeal do not concern the  sufficiency of Hall's prima
facie case and, indeed, the District  Court proceeded to consider the
full merits of Hall's discrimi-


nation claim and Giant's rebuttal evidence. See United States  Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715  (1983) ("Where
the defendant has done everything that would  be required of him if
the plaintiff had properly made out a  prima facie case, whether the
plaintiff really did so is no  longer relevant."); see also Hayman v.
National Academy of  Sciences, 23 F.3d 535, 537 (D.C. Cir. 1994)
(holding, on review  of district court's grant of judgment
notwithstanding the  verdict, that once court had allowed in
employer's full rebut- tal evidence, relevant question turned on
sufficiency of em- ployee's evidence of discrimination as opposed to
sufficiency  of her prima facie case); Debs v. Northeastern Ill.
Univ., 153  F.3d 390, 395-96 (7th Cir. 1998) (determining, on review
of  district court's grant of summary judgment, that where par- ties
were not disputing whether employee made out prima  facie case, court
would assume that prima facie requirements  were satisfied and proceed
to question whether employer's  proffered reasons were pretextual). We
will therefore in- dulge the fiction that Hall made out a prima facie
case and  review the case on the same terms as did the District


Assuming for the purposes of our analysis that the District  Court was
correct with regard to its assessment of Hall's  prima facie case and
Giant's rebuttal thereof, any presump- tions arising under the
burden-shifting scheme are no longer  a factor in this case. See
Burdine, 450 U.S. at 255 & n.10.  We are left, then, with the question
whether Hall could meet  his ultimate burden of demonstrating--whether
directly or  indirectly--that Giant intentionally discriminated


[T]he focus of proceedings at trial (and at summary  judgment) will be
on whether the jury could infer dis- crimination from the combination
of (1) the plaintiff's  prima facie case; (2) any evidence the
plaintiff presents  to attack the employer's proffered explanation for
its  actions; and (3) any further evidence of discrimination  that may
be available to the plaintiff (such as indepen- dent evidence of
discriminatory statements or attitudes  on the part of the employer)
or any contrary evidence  that may be available to the employer (such
as evidence 


of a strong track record in equal opportunity employ- ment).


Aka, 156 F.3d at 1289. "[T]he court must consider all the  evidence in
its full context in deciding whether the plaintiff  has met his burden
of showing that a reasonable jury could  conclude that he had suffered
discrimination and accordingly  summary judgment is inappropriate."
Id. at 1290.


We have no doubt that, considering "the total circum- stances of the
case," Aka, 156 F.3d at 1291, Hall's evidentiary  proffer is
insufficient to survive Giant's motion for summary  judgment, whether
it is advanced as direct evidence of dis- criminatory intent or
indirect evidence of pretext for discrimi- nation.


First, the record is clear that Balodemas, not Sanford,  made the
decision to terminate Hall. Sanford did not have  the authority to
fire Hall; indeed, Hall offered no evidence to  establish that Sanford
was even involved in the decision- making process. To be sure, Sanford
conveyed to Balodemas  the information in connection with Hall's
August 4, 1995  suspension. Sanford, however, merely communicated the 
facts as relayed to her by Turnblacer. Hall offers no evi- dence that
Sanford recommended to Balodemas that Hall be  discharged, that
Sanford was sufficiently involved to be aware  of Balodemas's reason
for terminating Hall, or that Sanford  had the ability to influence
Balodemas's decision. See Griffin  v. Washington Convention Ctr., 142
F.3d 1308, 1311-12 (D.C.  Cir. 1998) ("[E]vidence of a subordinate's
bias is relevant  where the ultimate decision maker is not insulated
from the  subordinate's influence."); cf. Shorette v. Rite Aid of
Maine,  Inc., 155 F.3d 8, 13-15 (1st Cir. 1998) (pointing to lack of 
evidence that managers who allegedly made discriminatory  remarks
participated in employer's discharge decisions). It  appears from the
record that Balodemas made an indepen- dent assessment of Hall's
conduct and concluded that Hall's  violations of multiple Giant
employment policies warranted  his termination. See Balodemas
Declaration p 3, reprinted in  App. 20-21. Hall offers nothing to
refute this version of  events, and thus, his reliance on Sanford's


most that Sanford herself harbored a bias completely unrelat- ed to
Giant's decision to terminate Hall.


Second, Sanford's alleged remark was made shortly after  Hall had been
reinstated to his position, and a full eight  months after the
original decision to terminate him had been  made. This fact tends to
isolate the comment reflecting age  bias from the relevant decision to
terminate Hall. Although  the temporal gap is not necessarily
dispositive in itself, it  obscures any conceivable nexus between
Sanford's statements  and the challenged employment decision. Cf.
Indurante v.  Local 705, Int'l Bhd. of Teamsters, 160 F.3d 364, 367
(7th Cir.  1998) (considering, inter alia, the fact that statements
alleg- edly reflecting age discrimination were made sixteen months 
before employee's termination).


Third, Hall does not even attempt to impugn Giant's stated  reason for
terminating him. At the time of the events leading  to Hall's
termination, the relevant employment policies were  clearly
established and were made known to Giant employees  in both oral and
written form. Giant's break, trip card, and  off-route policies
expressly provided that violations constitut- ed grounds for
dismissal. These policies were cited by  Turnblacer as the reason for
Hall's initial suspension, and by  Balodemas as the reason for Hall's
ultimate termination.  These policies were also the subject of the
arbitration pro- ceedings concerning Hall's discharge--proceedings
during  which the subject of Hall's age did not even arise. Moreover, 
as a factual matter, Hall does not dispute that he violated  these
policies. Under these circumstances, we find that  Giant's stated
justification for Hall's discharge is credible and  unrefuted.


Finally, Giant offered evidence that compellingly demon- strates a
favorable record of hiring and retaining drivers over  the age of
forty. We have stated that "[w]here an employer  has a strong record
of equal opportunity employment, any  inference of discrimination
arising from the discrediting of  the employer's explanation may be a
weak one, and in some  cases not strong enough to let a reasonable
factfinder con- clude that discrimination has occurred at all." Aka,


at 1291. Here, Giant's hiring records show that, of the 317  union
drivers employed by Giant in August 1995, 243-- approximately three
quarters--were older than Hall. Like- wise, as of April 1997, 229 of
309--about the same percent- age--were older than Hall. This evidence
tends to refute any  implication that Giant was attempting to purge
its force of  older employees. Cf. Greene v. Safeway Stores, Inc., 98
F.3d  554, 561 (10th Cir. 1996) (permitting plaintiff to introduce 
evidence that other employees in protected age class were  replaced,
because "evidence concerning the make-up of the  employment force and
events which occurred after plaintiff's  termination were entirely
relevant to the question of whether  or not age was one of the
determinative reasons for plaintiff's  termination").


In short, whatever claims Hall had to bring were raised,  heard, and
resolved in arbitration pursuant to the terms of  the collective
bargaining agreement between Giant and Local  639. The matter ended
with the issuance of the arbitrator's  award. The issues in dispute
here do not implicate the  federal laws against discrimination.


III. Conclusion


For the reasons stated above, we affirm the District  Court's grant of
summary judgment for Giant.


So ordered.


Karen LeCraft Henderson, Circuit Judge, concurring:


While I concur in the result, I write separately to point out  that the
first sentence of paragraph 6 of Hall's affidavit (as  Hall's
lawyer--who acknowledged he drafted the affidavit-- conceded at oral
argument), which avers that Sanford "in- formed [Hall] that the true
reason for [Hall's] termination  was [Hall's] age, not the other
reasons raised earlier," is  Hall's lawyer's gloss on Sanford's actual
words quoted in the  next two sentences of paragraph 6--that he was
"too old,"  that she wanted "younger," safer drivers and that he "had
to  go." Hall Aff. p 6, reprinted in App. 24. Hall, then, does not 
aver that Sanford in fact said "the true reason for [his]  termination
was [his] age," id., and there is no other evidence  of discrimination
in the record. Accordingly, Hall failed to  establish a prima facie
case of discrimination and I find it  unnecessary to go further.