BIRCH, Circuit Judge:
This appeal presents the question of whether an employer's failure to rehire or to transfer an employee whose position is eliminated as part of a reduction in force can give rise to an inference of age and race discrimination. The district court granted summary judgment in favor of the employer on all claims. For the reasons that follow, we determine that material questions of fact remain for resolution with respect to the former employee's age and race discrimination claims. We AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.
Plaintiff-appellant, Ann C. Jameson, a white female over the age of fifty, was employed by defendant-appellee, The Arrow Company ("Arrow"), at several of its plant locations in Georgia from May 19, 1969, until her termination on January 31, 1991. In July of 1987, Jameson was assigned to the "Quick Response Project," a team task force designed to improve efficiency in various company facilities. Bidermann Industries Corporation ("Bidermann") purchased Arrow in 1990. Shortly thereafter, at Bidermann's direction, Arrow began to implement a significant reduction in force. As part of this overall downsizing effort, the "Quick Response Project" was eliminated, and Jameson was discharged. Arrow subsequently hired Marian Kelley, a twenty-three-year-old black woman, as human resources trainee, an entry level position for which Jameson was fully qualified. At the time of her termination, Jameson was fifty-one years old.
Proceeding pro se, Jameson filed a timely complaint with the Equal Employment Opportunity Commission ("EEOC"). In amended complaints, Jameson alleged that
We review de novo the district court's order granting summary judgment. See Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). Summary judgment is appropriate where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted). On a motion for summary judgment, we must review the record, and all its inferences, in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).
In an employment discrimination case, the plaintiff must produce sufficient evidence to support an inference that the defendant employer based its employment decision on an illegal criterion. See Alphin v. Sears Roebuck & Co., 940 F.2d 1497, 1500 (11th Cir.1991) (citing Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 290 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983)). This court generally has eschewed an overly strict formulation of the elements of a prima facie case, particularly in age discrimination cases. See id. At the summary judgment stage, our inquiry is whether an ordinary person could reasonably infer discrimination if the facts presented remained unrebutted. Id. (quoting Carter v. City of Miami, 870 F.2d 578, 583 (11th Cir. 1989)).
A. ADEA Claim
This circuit has adopted a variation of the test articulated by the Supreme Court for Title VII claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for cases arising under the ADEA. See Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir.1992). In order to make out a prima facie case for an ADEA violation, the plaintiff must show that she (1) was a member of the protected group of persons between the ages of forty and seventy, (2) was subject to adverse employment action, (3) was replaced with a person outside the protected group, and (4) was qualified to do the job. See Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir.1989), cert. dismissed, 493 U.S. 1064, 110 S.Ct. 884, 107 L.Ed.2d 1012 (1990). These criteria are altered slightly in both a reduction-in-force ("RIF") case and where a position is eliminated in its entirety; in these instances, the
Here, Jameson does not dispute that the initial termination and consequent elimination of her position resulted from a legitimate RIF, but argues that Arrow's failure to transfer her or to rehire her for numerous positions available at the time of her termination constitutes evidence of discriminatory intent. Jameson emphasizes that she specifically expressed to a supervisor her interest in the position of personnel administrator — later filled by a younger woman — but was informed that Arrow did not plan to fill this position. She further suggests that the facts that Arrow transferred one younger employee from the Quick Response Project and hired several younger individuals for other positions for which she was qualified are evidence that the impermissible factor motivating Arrow's decisions was the desire to replace older female workers with younger employees.
In Earley, we established the basic proposition that, when an employer reduces its work force for economic reasons, it incurs no duty to transfer laid-off employees to other positions within the company. 907 F.2d at 1083. Significantly, although the plaintiff in Earley argued that he was neither transferred nor rehired into positions available months before and after his discharge, he was unable to show that he was qualified for any position within the defendant-company available at the time of his discharge. Noting that the adoption of the plaintiff's argument would effectively "prohibit employers from planning and implementing RIFs if the reductions affected employees in the protected age group," Earley, 907 F.2d at 1083, n. 4, we concluded that by failing to show that he was qualified for a job available at the time of his termination, the plaintiff had failed to establish the second prong of his prima facie case. Id.
Mitchell presented a somewhat different circumstance. 967 F.2d 565. In Mitchell, as in Earley, the district court had found that the plaintiff failed to meet the second test enunciated in Verbraeken — that is, that he was qualified for a position available at the time of discharge — and granted summary judgment in favor of the employer. Id. at 568. We reversed and expressly recognized that evidence adduced by the plaintiff indicating that there may have been job openings for which he was qualified at the time of his termination, but for which he was not hired, gave rise to a material, disputed issue of fact, and that summary judgment therefore was inappropriate. Id. at 568. Although the court in Mitchell declined to explicitly elaborate on the third element of the plaintiff's Prima facie case — whether the plaintiff had produced evidence that would permit a fact finder to infer intentional discrimination by the employer — the reasoning and ultimate holdings of both Mitchell and Earley suggest that where a job for which the plaintiff is qualified, and for which the plaintiff applies, is available at the time of termination, and the employer offers the job to an individual outside the protected age group, an inference of intentional discrimination is permissible.
It is critical to note that this statement in no way represents a departure from this circuit's decisional law, but rather is a direct application of Mitchell and Earley to the facts of this case. It is undisputed that job openings for which Jameson was qualified existed at the time of her termination, and that Arrow hired younger employees to fill these vacancies. We hold that, although Arrow incurred no absolute duty to hire Jameson into any of these positions, its failure to do so, coupled with its decision to employ younger workers during its RIF, could give rise to a rebuttable inference that it intended to discriminate against Jameson on the basis of age. We emphasize that the ADEA does not mandate that employers establish an interdepartmental transfer program during the course of an RIF, see Taylor v. Canteen Corp., 69 F.3d 773 (7th Cir.
B. Race Discrimination Claim
Jameson also contends that Arrow discriminated against her on the basis of race by expressly directing that a black female, Marian Kelley, be hired to assume an entry level job for which Jameson was qualified at the time of her discharge.
The record in this case indicates that the explanations relied on by the district court were based upon underlying issues of material fact that remain in dispute, and that the court not only improperly weighed the evidence submitted by each party, but also credited one version of events in granting summary judgment. For instance, Sandra Giles, a former employee relations manager at Arrow, testified that Arrow had "mov[ed] people around" during the RIF, and had transferred at least one plant manager to a personnel position. R6-61-83. By the same token, although Arrow posited that the entry level position for which Marian Kelley was hired would have been a demotion, Houston
In sum, the evidence presented by Jameson was more than merely speculative and thus satisfied her burden to produce sufficient evidence from which a rational inference of age and race discrimination could be drawn. Although from the evidence in the record thus far, a trier of fact could infer that there was no intent to discriminate against Jameson, it could infer instead that Arrow deliberately refused to transfer or to rehire Jameson for jobs for which she was qualified at the time of her discharge because of her age and race. It remains the province of the finder of fact to decide which inference should be drawn. See Cronin v. Aetna Life Ins. Co., 46 F.3d at 206. The district court expanded its review of the record evidence beyond that which is permitted at the summary judgment stage. Accordingly, summary judgment was inappropriate.
C. Motion to Amend
Jameson asserts that the district court abused its discretion in denying her leave to amend her second amended complaint to add a claim for failure to rehire her based on retaliation for filing a complaint with the EEOC. The court found that Jameson sought to amend the complaint ten months after she retained counsel, discovery was closed, the complaint had been amended twice, and Arrow had filed two motions for summary judgment.
Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave [to amend a party's pleading] shall be freely given when justice so requires." The decision whether to grant leave to amend is within the sound discretion of the trial court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). The Supreme Court has defined the parameters of Rule 15(a):
Id. Jameson argues that the substantial delay in seeking to amend the complaint to include a retaliation claim resulted from the district court's refusal to allow discovery to include information relevant to this claim. She further urges that the district court based this refusal on its erroneous determination that the amended complaint did not adequately state a claim for retaliatory failure to rehire.
Jameson asks us to apply an extraordinarily flexible pleading requirement in construing the allegations set forth in the complaint. Notwithstanding Jameson's suggestion that the district court should have interpreted the complaint liberally to include a retaliation claim at the outset, the omission of any reference to the term "retaliation" in this context is significant, and renders the complaint more than minimally deficient in stating such a claim. Moreover, Jameson claims that her motion to compel filed on November 22, 1993, essentially stated the retaliation claim; yet, she did not move to amend the complaint to include this claim until May 6, 1994, one month after Arrow had filed its motion for summary judgment. Though we are mindful of the fact that Jameson was unable to obtain important information needed to pursue this claim until Houston Payne's deposition in March of 1994, it appears that the basic facts giving rise to the retaliation theory were available when the second amended complaint was filed. The considerable delay in seeking to amend the complaint for the third time, coupled with the request to amend subsequent to the filing of the defendant's motion for summary judgment, appears to have been unwarranted. The district court did not abuse its discretion in denying this request.
In this appeal, Jameson argues that Arrow discriminated against her on the basis of age and race when it failed to transfer or to rehire her following a reduction in force. The district court erred in concluding at the summary judgment stage that Jameson failed to set forth evidence by which a trier of fact reasonably could conclude that Arrow intended to discriminate on the basis of age. The court further erred in crediting Arrow's justifications presented to rebut the inference of race discrimination when these justifications were based upon disputed issues of material fact. The court, however, did not abuse its discretion in denying Jameson's request to amend the complaint to include a claim of retaliatory failure to rehire. We therefore AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.