Mereish v. Walker , 359 F.3d 330 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KULTHOUM A. MEREISH, 
Plaintiff-Appellant,
v.
 No. 02-2366
ROBERT M. WALKER, Acting
Secretary of the Army,
Defendant-Appellee.

AYAAD ASSAAD, 
Plaintiff-Appellant,
v.
 No. 02-2367
LOUIS CALDERA, Secretary of the
Army,
Defendant-Appellee.

RICHARD D. CROSLAND, 
Plaintiff-Appellant,
v.
 No. 02-2369
LOUIS CALDERA, Secretary of the
Army,
Defendant-Appellee.

Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Benson Everett Legg, Chief District Judge.
(CA-98-1696)
Argued: December 3, 2003
Decided: February 20, 2004
2 MEREISH v. WALKER
Before WILKINSON and NIEMEYER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Niemeyer and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Rosemary Agnes McDermott, ATTORNEY AT LAW
ROSEMARY A. MCDERMOTT, Thurmont, Maryland, for Appel-
lants. Thomas Frank Corcoran, Assistant United States Attorney, Bal-
timore, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio,
United States Attorney, Baltimore, Maryland, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Appellants Kulthoum A. Mereish, Ayaad Assaad, and Richard D.
Crosland were scientists employed with the United States Army Med-
ical Research Institute of Infectious Diseases ("USAMRIID"). On
May 9, 1997, they were laid off as part of a reduction in force
("RIF"). In separate suits, they alleged, inter alia, that they were ter-
minated on the basis of their age in violation of the Age Discrimina-
tion in Employment Act of 1967 (ADEA). See 29 U.S.C. § 623(a)
(1999). The district court granted summary judgment to the defen-
dant, Robert M. Walker, Acting Secretary of the Army, and we affirm
its judgment. The evidence conclusively establishes that the Com-
mander of the USAMRIID, when implementing the RIF, acted upon
his skills-based assessment that appellants’ positions had become less
critical to the agency’s mission. Such an exercise of managerial dis-
cretion is entirely legitimate under the ADEA.
I.
The district court granted summary judgment to Walker, and we
accordingly construe the evidence in the light most favorable to
MEREISH v. WALKER 3
appellants. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). The USAMRIID, a research arm of the U.S. Army, is charged
with developing defenses against biological agents that may be used
in battle. The USAMRIID employs a variety of scientists who work
in different areas, depending upon the precise responsibilities that the
agency is assigned. Between 1994 and 1996, the USAMRIID
employed 265 people.
Since the early 1990s, the USAMRIID has faced significant bud-
getary pressures as the Army has downsized. These pressures resulted
in numerous personnel cuts, where the Commander of the USAM-
RIID was ordered to make a certain number of "authorizations," or
reductions in personnel, per year. Indeed, between 1990 and 1998, the
agency was forced to reduce the number of its civilian positions by
over twenty-five percent.
Colonel David R. Franz, then-Commander of the USAMRIID, was
responsible for implementing the reductions. Until 1995, Franz had
achieved the cuts mostly through a variety of voluntary retirement
programs. However, he found these programs to be unsatisfactory for
two reasons. First, an insufficient number of employees were willing
to retire. More importantly, Franz found that voluntary attrition was
allowing scientists critical to the agency’s mission to leave. As Franz
stated, "you just can’t run an organization, a good organization by
attrition." By using attrition, Franz was unable to manage the mix of
personnel skills necessary to fulfill the agency’s goals.
In order to make the required personnel cuts without losing control
over the composition of the agency’s workforce, Franz decided to uti-
lize RIFs. He instituted three separate RIFs in 1995, 1996, and 1997.
Throughout this time period, however, Franz raised objections with
his superiors over the level of reductions. For example, in a 1995
memorandum, Franz requested that the required personnel cuts for
fiscal year 1997 be reduced from sixteen employees to five. He out-
lined the USAMRIID’s expanding responsibilities, the damage to the
agency caused by previous cuts, and the need to protect scientists
working in particular areas. Franz wrote a similar memorandum to his
superiors in 1996, after receiving word that he would have to make
eleven more reductions in personnel in fiscal year 1998. He noted that
the USAMRIID had been forced to eliminate a total of seventy-seven
4 MEREISH v. WALKER
positions during the previous four years, and he again stressed the toll
that more cuts would take on the morale and efficiency of the USAM-
RIID.
However, after failing to gain relief from the required cuts, Franz
elected to utilize RIFs. In the 1995 RIF, Franz was able to meet the
authorization levels by eliminating mostly support staff positions. In
the 1996 RIF, Franz terminated a statistician, two physiologists, and
two laboratory technicians. Finally, in the 1997 RIF, Franz eliminated
the only pharmacologist position and the three remaining physiologist
positions at the USAMRIID, and he discharged a secretary, an infor-
mation specialist, and a computer assistant. The elimination of the
pharmacologist and physiologist positions resulted in appellants’ ter-
minations on May 9, 1997. At the time, Dr. Crosland, a physiologist,
was fifty years old; Dr. Assaad, a physiologist, was forty-eight; and
Dr. Mereish, a pharmacologist, was forty-three.
Following their discharges, appellants brought separate suits. Dr.
Crosland alleged that he was terminated on the basis of his age; Dr.
Assaad alleged that he was terminated on the basis of his age, race,
and national origin; and Dr. Mereish alleged that she was terminated
on the basis of her age and national origin. After the close of discov-
ery, the district court granted summary judgment to Walker on all of
the claims.
On October 13, 2000, a panel of this Court upheld the district
court’s decision as to the claims based on race and national origin.
See Crosland v. Caldera, No. 00-1325, 2000 WL 1520597, at *1 (4th
Cir. Oct. 13, 2000) (per curiam). However, the panel vacated and
remanded the case for reconsideration of the age discrimination
claims in light of Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133 (2000). See Crosland, 2000 WL 1520597, at **1-2. After
further discovery, on September 30, 2002, the district court again
granted summary judgment to Walker on the ADEA claims. Appel-
lants now challenge that decision.
II.
We review a grant of summary judgment de novo. See Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
MEREISH v. WALKER 5
Summary judgment is appropriate where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. Pro. 56(c). If the evidence will reasonably
support only one conclusion, summary judgment is proper. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Haw-
kins v. Pepsico, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omit-
ted).
The ADEA makes it "unlawful for an employer . . . to discharge
any individual . . . because of such individual’s age." 29 U.S.C.
§ 623(a)(1) (1999). The plaintiff in an ADEA case bears the burden
of proving that age was a determining factor in the relevant employ-
ment decision. See Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1314
(4th Cir. 1993). We have recognized two ways in which a plaintiff
can establish an ADEA claim: first, through evidence showing that
age bias motivated the employment decision under the so-called
"mixed-motive" method; and second, through circumstantial evidence
of discrimination under the "pretext" method established in McDon-
nell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), and its
progeny. See Hill v. Lockheed Martin Logistics Mgmt., Inc., ___ F.3d
___, No. 01-1359, 2004 WL 25018, at **3-5 (4th Cir. Jan. 5, 2004)
(en banc). Appellants attempt here to prove their ADEA claims using
both frameworks.
III.
Appellants have primarily advanced their age discrimination claims
under the burden-shifting scheme of proof established in McDonnell
Douglas and subsequent decisions. See Reeves v. Sanderson Plumb-
ing Prods., Inc., 530 U.S. 133, 142 (2000) (assuming, but not decid-
ing, that the McDonnell Douglas framework applies to ADEA
claims). Pursuant to this framework, appellants must first establish a
prima facie case of discrimination by a preponderance of the evi-
dence. See McDonnell Douglas, 411 U.S. at 802; Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). The burden
of production then shifts to Walker to articulate a legitimate, non-
discriminatory reason for appellants’ termination. See id. at 253. If
Walker satisfies this burden, the presumption of discrimination cre-
ated by the prima facie case disappears from the case. See id. at 255.
Appellants must then prove that Walker’s proffered justification is
6 MEREISH v. WALKER
pretextual. See id. at 253. This final burden on appellants "merges
with the ultimate burden of persuading the court that [they] ha[ve]
been the victim[s] of intentional discrimination." Id. at 256. Indeed,
at all times, the burden of proving age discrimination rests with appel-
lants. See id.
We are willing to assume arguendo that appellants have established
a prima facie case of age discrimination, as the district court did
below. We therefore consider Walker’s proffered reason for the termi-
nations and appellants’ evidence of pretext.
A.
To meet his production burden under the McDonnell Douglas
framework, Walker is not required to persuade us that the proffered
reason was the actual motivation for Franz’s decision. See Burdine,
450 U.S. at 254. He must merely articulate a justification that is "le-
gally sufficient to justify a judgment" in his favor. See id. at 255.
Simply put, Walker claims that Colonel Franz based his decision
to terminate appellants on the needs of the USAMRIID. Franz
asserted that, in determining which positions to eliminate in the 1997
RIF, he focused on "mission relevance." According to Franz’s testi-
mony, the USAMRIID’s mission was expanding rapidly. The agency
was already charged with developing vaccines, drugs, and diagnostics
related to a growing set of biological agents. In addition, as biological
warfare became a greater concern, the USAMRIID was charged with
training soldiers on how to respond in the field and with preparing
contingencies in the event of an attack on our nation or our embassies
abroad. To meet these multiple demands, Franz decided to retain a
strong technical base at the agency, particularly in areas like microbi-
ology where he determined the need was greatest. In his view, retain-
ing scientists with the kind of technical expertise possessed by
microbiologists — such as gene splicing — was critical to the agen-
cy’s ability to fulfill its historic mission and meet its new responsibili-
ties.
By contrast, in Franz’s view the pharmacologist and physiologist
positions were less central to the most pressing demands on the
agency. At the time of the RIF, Dr. Mereish, a pharmacologist, was
MEREISH v. WALKER 7
not conducting research at the USAMRIID but rather was on detail
to the Biological Arms Control Treaty Organization. Dr. Assaad, a
physiologist, was working on developing a vaccine for ricin utilizing
a particular kind of antigen. His research, however, was superseded
soon after he was discharged in favor of new ricin research based on
a recombinant molecular construct, which is an entirely different
source than the antigen upon which Dr. Assaad was focusing. Finally,
Dr. Crosland, a physiologist, was investigating botulinum toxins at
the time he was laid off. He was attempting to develop a cell line that
would respond to botulinum toxins, in order to facilitate further
research of these agents. After he was laid off, his research was not
continued. According to Franz, these positions were ones that were
not experiencing much progress, or that were not considered to be as
relevant as other specialties to the agency’s expanding mission. As
Franz put it, they were not areas "in which we’re going to make a big
difference for the soldier."
In terminating appellants, Franz asserted he aimed to ensure that
the technical skills possessed by the USAMRIID employees after the
RIF would match the changing nature of the threats to which the
agency was designed to respond — namely, biological war and terror-
ism. Such a strategic business decision constitutes a legally sufficient
justification for appellants’ termination. See, e.g., Schuster v. Lucent
Techs., Inc., 327 F.3d 569, 571, 572, 574-75 (7th Cir. 2003) (recog-
nizing as a legitimate reason for a discharge "an effort to address
adverse financial conditions," where management "determined that
retaining [one employee] was more integral to the success of the ven-
ture" than retaining the plaintiff); EEOC v. Texas Instruments Inc.,
100 F.3d 1173, 1176, 1183 (5th Cir. 1996) (recognizing as a legiti-
mate reason for conducting layoffs a firm’s need to retain employees
with "the contemporary skills necessary to assimilate new technolo-
gies").
If we failed to allow proffered justifications such as Walker’s, we
would undermine the capacity of public and private entities to adapt
to their environment. Without the ability to update the skills of their
employees to meet the shifting demands of technology and society,
businesses could not thrive and agencies would be powerless to carry
out important public functions. As we have noted, "the ADEA was
not intended to obstruct the ability of a commercial enterprise to make
8 MEREISH v. WALKER
necessary adjustments in the face of economic challenges." See Birk-
beck v. Marvel Lighting Corp., 30 F.3d 507, 513 (4th Cir. 1994). Nei-
ther was it designed to prevent leaders in the public sector from
achieving the mix of employee expertise that will best fulfill an agen-
cy’s goals.
B.
Walker has thus proffered a legitimate, non-discriminatory reason
for the termination decision. Appellants can meet their burden of
proving pretext either by showing that Walker’s explanation is "un-
worthy of credence" or by offering other forms of circumstantial evi-
dence sufficiently probative of age discrimination. Burdine, 450 U.S.
at 256; Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 721 (4th
Cir. 2002). As we have noted, appellants ultimately must prove that
they were the victims of age discrimination. Burdine, 450 U.S. at 256.
Appellants contend that Franz, and indeed the entire command at
the USAMRIID, harbored a discriminatory attitude towards older
employees. This bias, appellants argue, led to their discharge. To sup-
port this claim, appellants point to several pieces of evidence. First,
they point to a memorandum written by Colonel Franz to his superior
in May 1995, asking for a reduction in the number of cuts for the
USAMRIID. Franz stated:
My goal is to accomplish the reductions with minimal
impact on mission. This will be difficult, given the large
decrement, and will result in my actions impacting nega-
tively on our staff of key scientific professionals. . . . It is
the young, bright, junior scientists (the core of our molecu-
lar biological vaccine development effort) that I must
attempt to protect. Unlike health care providers, many of
these specialists are one or two deep in the free world. They
are irreplaceable.
Appellants contend in particular that Franz’s statement that he must
protect "the young, bright, junior scientists" evinces a discriminatory
animus against older employees.
MEREISH v. WALKER 9
Appellants also point to statements attributed to Colonel Glenn, the
Director of the Medical Systems Integration Office Headquarters,
which, like the USAMRIID, is a part of the United States Army Med-
ical Research and Material Command ("USAMRMC"). As appellants
note, Glenn expressed concern about the aging workforce at the
USAMRIID, and the "tunnel vision" and lack of flexibility character-
istic of some scientists. Similarly, in a memorandum to the Com-
mander of the USAMRMC, in which Glenn gave his Review &
Analysis of the USAMRMC, Glenn noted the "problem" of the "aver-
age age going higher." He stated that "only USAMRIID cut below the
authorization limit to hire back either younger or different technology
skills." In appellants’ view, these statements by Glenn, like those
made by Franz, reveal a discriminatory animus against older employ-
ees and establish pretext.
We disagree. First, we have consistently held, along with other cir-
cuits, that general or ambiguous remarks referring to the process of
generational change create no triable issue of age discrimination. See,
e.g., Birkbeck, 30 F.3d at 511-12 (holding that the statement that
"there comes a time when we have to make way for younger people"
is insufficient to create any "inference of age bias" because it is a
stray remark which merely reflects a fact of life); EEOC v. Clay
Printing Co., 955 F.2d 936, 942-43 (4th Cir. 1992) (holding that ref-
erences to the need to "attract newer, younger people" or "young
blood" were insufficient evidence of age bias because they were iso-
lated and merely reflected a truism of business life); Cone v. Long-
mont United Hosp. Ass’n, 14 F.3d 526, 531 (10th Cir. 1994) (holding
that the reference to needing "some new young blood" was insuffi-
ciently probative of age bias); Gagne v. Northwestern Nat’l Ins. Co.,
881 F.2d 309, 314 (6th Cir. 1989) (holding that the reference to need-
ing "younger blood" was insufficiently probative of age bias).
Also, when evaluating alleged age animus, we must consider the
context in which statements were made. Here, as we detailed above,
the USAMRIID’s mission was expanding. It was continuing its his-
toric mission of developing vaccines, drugs, and diagnostics related
to increasing numbers of biological agents. And the agency had
recently been charged with protecting soldiers against biological
agents on the battlefield and with protecting the civilian population
generally against the rising threat of terrorism at home. Scientists with
10 MEREISH v. WALKER
the skills possessed by microbiologists and other specialties were in
Franz’s view highly relevant to this effort, and the agency wanted to
go to some lengths to attract and retain them. The employment strate-
gies of Franz and Glenn were inevitably informed by these realities.
Read in this context, Franz’s and Glenn’s comments reinforce,
rather than undermine, Walker’s proffered reason for appellants’ ter-
mination. Their statements were referring to the need for scientists
with more relevant and current skill sets, rather than to scientists’
chronological age. Franz’s comments in his May 1995 memorandum,
for example, clearly evidence his desire to retain those scientists who
were most difficult to find and who possessed the most recent training
and skills. Indeed, Franz stated quite explicitly in the memo itself that,
by "young, bright, junior scientists," he meant "the core of our molec-
ular biological vaccine development effort." And he later reiterated
that his reference to "young" scientists was made purely in terms of
"technical capabilities" and the recency of their education and train-
ing, regardless of age. It is clear from reading Franz’s statements in
context that he was expressing the need to retain those scientists with
cutting-edge skills in critical areas.
Likewise, Glenn’s comments reflect the same need to retain those
scientists with the most up-to-date skills and training. To begin with,
Glenn, who was the leader of a separate unit from the USAMRIID,
was not even a decision-maker with regard to the RIF. Moreover, he
made clear that his remarks on the "aging" of the workforce were
directed at "the aging technologically of the skills of the work force."
Part of his concern also was that, due to the inability of agencies
within the USAMRMC to hire new scientists in recent years because
of downsizing, a significant portion of the agencies’ scientists might
retire at the same time and thus result in a sudden loss of a "critical
mass of expertise and knowledge in certain areas." His comment on
the USAMRIID’s success in hiring back "younger or different tech-
nology skills" likewise alluded to maintaining the agency’s scientific
capacity to meet the latest forms of biological threats. And Glenn’s
reference to the lack of flexibility of scientists was not age-related, as
he was discussing the importance of adjusting ways of thinking to
dangers subject to nothing so much as rapid change.
It is significant, moreover, that the 1997 RIF was conducted on a
position-wide basis. When implementing the RIF, Franz targeted cate-
MEREISH v. WALKER 11
gories of scientists, not individual employees. In his judgment, the
pharmacologists and physiologists were less relevant to the agency’s
mission. He cut those positions and retained all of the scientists in the
other research fields. It is undisputed that all pharmacologists and
physiologists were removed, no matter what their age. Appellants are
unable to point us to any set of scientific skills within the agency
which Franz mined selectively for age. Appellants simply cannot
claim in the face of such a neutral RIF method that Franz terminated
them individually based on age. See Birkbeck, 30 F.3d at 512 (noting
the significance of the fact that an entire department was eliminated,
rather than individuals, and stating that "it would make little sense for
[the employer] to shut down an entire twelve person department . . .
simply to rid itself of that department’s 62 year old supervisor").
Appellants have also provided us with no evidence that Franz
selected the pharmacologist and physiologist positions in order to rid
the agency of its oldest employees. Every other field, whether it be
chemist, research chemist, microbiologist, or entomologist, was sig-
nificantly staffed by individuals older than all or some of appellants.
Yet every person in these other positions was retained, regardless of
age. In fact, the statistics show that appellants were not nearly the old-
est employees at the USAMRIID. The average age of the agency’s
workforce was almost forty-six years, whereas appellants were ages
forty-three, forty-eight, and fifty. And there were twenty-one scien-
tists who were older than Dr. Crosland, none of whom were affected
by the RIF. All of this evidence belies the notion that Franz simply
selected those positions which were staffed by the oldest employees.
Appellants argue, however, that Franz was not even required to
conduct a RIF, but instead capitalized upon it in order to act upon his
bias against older employees. The evidence fails to support this con-
tention. As detailed above, Franz had no choice but to reduce the level
of staffing at the USAMRIID. He elected to conduct RIFs only after
finding that other methods of meeting the authorizations — namely,
voluntary attrition — proved detrimental to the agency. And Franz
strenuously objected to his superiors about the impact that the cuts
were having on morale at the USAMRIID. Other than appellants’
speculation, there is simply nothing to indicate that Franz took gratu-
itous advantage of a RIF in order to terminate older employees.
12 MEREISH v. WALKER
Finally, appellants assert that, contrary to Franz’s claims, their
positions were important to the USAMRIID’s missions. For example,
they contend that physiology is listed among the various responsibili-
ties of the agency. And, appellants claim, they were conducting
breakthrough research that was critical to the nation’s security. As
detailed above, at the time of the RIF, Dr. Mereish was on detail with
a biological arms production organization; Dr. Assaad was attempting
to develop a vaccine for ricin; and Dr. Crosland was researching
botulinum toxin in order to advance the scientific testing of that agent.
Accordingly, appellants argue, Franz’s asserted justification for their
terminations cannot be true.
Appellants’ contentions misconstrue the basis of Franz’s termina-
tion decision. Franz never stated that appellants’ skills and research
were unimportant or irrelevant to the USAMRIID’s mission. The very
nature of a RIF is that some workers must be let go, and difficult deci-
sions have to be made. Franz’s judgment was therefore a comparative
one: he determined that the pharmacologist and physiologist positions
were less integral than others to the agency’s mission. Tellingly,
appellants have not responded to this comparative judgment by point-
ing to any evidence that their positions were more relevant to the
agency’s mission than, for example, microbiologists or research
chemists.
Moreover, in pressing us to assess the importance of their research
to national security, appellants misconceive the role of the federal
courts in resolving claims such as the present one. It is not our place
to second-guess the soundness of scientific or managerial decisions
under the guise of the ADEA. Our role is much more circumscribed;
we are concerned only with ensuring that decision-makers are not
improperly motivated by discriminatory animus. See Dugan v. Albe-
marle County Sch. Bd., 293 F.3d 716, 722-23 (4th Cir. 2002). Appel-
lants may disagree with Franz’s conclusion as to which positions to
eliminate, but the ultimate responsibility for that judgment lies with
Franz. Our focus is solely on whether this decision was the result of
age bias.
On that score, we find appellants’ evidence of pretext wholly insuf-
ficient to raise a genuine issue of material fact. Franz’s decision to
terminate appellants was skills-based rather than age-based; it was
MEREISH v. WALKER 13
applied neutrally to positions rather than to individuals; and it was
amply supported by evidence indicating the shifting demands facing
the USAMRIID. Appellants have failed to bring the legitimate justifi-
cation of the agency into genuine dispute.1
IV.
Appellants also argue on appeal that they should prevail under the
mixed-motive method of proving age discrimination. Under the
mixed-motive framework established by the Supreme Court in Price
Waterhouse v. Hopkins, appellants must prove through direct evi-
dence that age was a substantial motivating factor in the termination
decision. See 490 U.S. 228, 258 (1989) (plurality opinion); id. at 259
(White, J., concurring); id. at 276 (O’Connor, J., concurring). If
appellants satisfy this burden, then Walker must prove that Franz
would have taken the same action even absent consideration of age
in order to avoid liability. Price Waterhouse, 490 U.S. at 258 (plural-
ity opinion); id. at 259-60 (White, J., concurring); id. at 276-77
(O’Connor, J., concurring).
The Price Waterhouse framework of proving discrimination, cre-
ated in the Title VII context and adopted in the ADEA context, has
been altered by Congress for Title VII claims. In the Civil Rights Act
of 1991, Congress made the mixed-motive framework more favorable
to Title VII plaintiffs in two ways. See Hill v. Lockheed Martin Logis-
tics Mgmt., Inc., ___ F.3d ___, No. 01-1359, 2004 WL 25018, at **3-
5 (4th Cir. Jan. 5, 2004) (en banc). First, Congress provided that
plaintiffs can invoke the codified mixed-motive framework by putting
forth any type of evidence — direct or circumstantial — which dem-
onstrates that discriminatory animus was a motivating factor for an
employment practice. See 42 U.S.C. § 2000e-2(m) (2003); Desert
Palace, Inc. v. Costa, 123 S. Ct. 2148, 2153-55 (2003). Second, Con-
gress disallowed employers from escaping liability by proving that
they would have made the same decision even without any discrimi-
1
Because we find that appellants have not provided sufficient evidence
of pretext, we do not need to consider whether the rule announced in
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-49
(2000), applies in this case. See Rowe v. Marley Co., 233 F.3d 825, 829-
30, 831 (4th Cir. 2000).
14 MEREISH v. WALKER
nation. Rather, such proof only permits employers to limit the reme-
dies available to plaintiffs. See 42 U.S.C. § 2000e-5(g)(2)(B).
We have not had occasion to decide whether the mixed-motive pro-
vision under the Civil Rights Act of 1991 applies to the ADEA. We
have previously expressed doubt that it does, and instead we have
suggested that the Price Waterhouse framework still applies to ADEA
claims. See, e.g., Hill, 2004 WL 25018, at *4 n.2. This is in large part
because, when Congress enacted the Civil Rights Act of 1991 in
response to Price Waterhouse, it amended only Title VII and did not
pass a corresponding amendment to the ADEA. And maintaining the
higher evidentiary burden in Price Waterhouse for ADEA claims is
not implausible, given that age is often correlated with perfectly legit-
imate, non-discriminatory employment decisions.
Ultimately, however, whether we apply the more lenient standard
found in 42 U.S.C. § 2000e-2(m) or Price Waterhouse, the mixed-
motive framework is of no avail to appellants here. As we have
detailed, the record demonstrates that Franz’s decision was motivated
solely by his goal of ensuring that the USAMRIID was staffed with
the appropriate mix of skills and talents necessary to defend against
the changing threats of biological war. There is simply no evidence
— direct or circumstantial — upon which a jury could reasonably
conclude that age was a motivating factor in Franz’s decision to ter-
minate appellants.
V.
Appellants have thus failed to meet their evidentiary burden of
demonstrating that they were terminated because of their age. In these
circumstances, summary judgment is appropriate.2 The judgment of
the district court is therefore
AFFIRMED
2
Appellant Crosland appealed to the district court from an adverse
decision by the Merit Systems Protection Board ("MSPB"), which had
rejected all of Dr. Crosland’s challenges to the legitimacy of the RIF. See
Supp. App. 5-10. The district court rejected Dr. Crosland’s claims on
appeal, and we find no error in that judgment.