Harris v. KRB Electronics Incorporated et al

Filing 35

MEMORANDUM OPINION AND ORDER: As further set out in order, 20 , MOTION for Summary Judgment, is DENIED. Signed by Judge Abdul K Kallon on 11/29/12. (CVA)

FILED
2012 Nov-29 PM 04:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
BRYANT HARRIS,
Plaintiff,
vs.
KRB ELECTRONICS
INCORPORATED, et al.,
Defendants.

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Civil Action Number
5:11-cv-3073-AKK

MEMORANDUM OPINION AND ORDER
Faced with a significant decrease in revenues, Defendants decided to
eliminate Plaintiff Bryant Harris’s position.1 Eliminating a position for economic
reasons is normally a legitimate and reasonable business decision that courts do
not second guess. However, here, prior to eliminating Harris’s position,
Defendants created a new position that resembled his position. When Harris saw
the advertisement, he was naturally concerned and inquired about whether he
should apply. Interestingly, Defendants refused to allow Harris to apply for the
“new” position despite admitting that Harris was qualified. Moreover, when

1

Harris filed for bankruptcy protection under Chapter 7 and Tazewell Shepard, III was
appointed trustee of the bankruptcy estate. Doc. 10. Although the court granted Harris’s motion
to substitute Shepard as the plaintiff in this case, see docs. 10 and 11, the court will use Harris as
the “plaintiff” for purposes of this opinion.
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Defendants laid off Harris a few days later, Harris offered to take a pay cut and to
work in the new position. Defendants rejected Harris’s offer and, instead, hired
someone 39 years younger than Harris a few days later for the “new” position, and
purportedly classified the new hire and held him out to customers as a Graphics
Manager – the same position Harris held. The decision led Harris to file this
lawsuit in which he alleges discrimination under the Age Discrimination in
Employment Act (“ADEA”). Defendants have moved for summary judgment, and
the motion is fully briefed. Docs. 21, 25, 27. For the reasons set forth below, the
court finds that genuine issues of material facts preclude the court from granting
the motion.2
I. SUMMARY JUDGMENT STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper
“if the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish

2

The court dismissed Adept Technologies upon notice that Adept filed a Chapter 11
petition in the United States Bankruptcy Court for the Northern District of Alabama. See docs.
31 and 32. As a result, the only remaining defendant is KRB, LLC.
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the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Id. However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,1563 (11th Cir. 1989)).
II. FACTUAL BACKGROUND
Adept manufacturers parts for use in missiles, helicopters, tanks, and other
military hardware. Doc. 22-1 at 5. Brad Fielder and Chad Fielder, Adept’s
owners, hold the titles of President and Vice President, respectively. Docs. 22-1 at
4; 22-3 at 3. In 2007, Adept acquired KRB, which made silk-screens and label
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and graphic prints, including logos, for commercial and military industries. Doc.
22-1 at 4-6. KRB and Adept had separate locations when KRB hired Harris in
February 2008. Id. at 8. However, Defendants contend that KRB is practically
dissolved and that the two entities now operate from one location. Docs. 21 at 2;
22-1 at 4, 20.
A.

Bryant Harris’s history with KRB and Adept Technologies
In 2007, Harris worked for Clark and Associates, a company that KRB sub-

contracted for the graphics artwork side of its silk-screening process. Doc. 22-1 at
8-9. KRB used a two step process for silk-screening. Doc. 22-4 at 5. Step one
consisted of the graphics generation and involved creating the “artwork” on a
computer which KRB then screened onto the product. Id. The second step
included the actual silk-screening and entailed printing the computer artwork to a
film and applying it onto the product. Id. Shortly after Adept acquired KRB,
Adept developed a new process for silk-screening using a special kind of film that
Clark and Associates did not use, and which eliminated KRB’s reliance on Clark
and Associates and Harris. Doc. 22-1 at 8-9. Initially, Marty Williams, Adept’s
applied sciences director and the developer of the new process, managed KRB’s
silk-screening process. Doc. 22-1 at 9-10. However, KRB hired Harris as its
Graphics Manager in February 2008, and Harris’s job included managing the
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graphics part of the business (step one of the process), serving as a customer
liaison, and generating additional silk-screening business. Id.; doc. 22-5 at 27.
Brad and Chad Fielder believed that Harris would work well with existing
customers and bring in new customers to grow the business since Harris had
worked for many years with KRB’s customers. Doc. 22-1 at 9. KRB contends
that Harris’s ability to generate new business factored into its decision to meet
Harris’s salary demand of $60,000. Docs. 22-3 at 6; 22-5 at 30. However, Harris
asserts, and Brad Fielder confirms, that KRB did not consider the ability to
generate new business as a “critical” function of Harris’s job. Id.; doc. 26 at 3. In
the end, Harris was unable to generate any substantial new business and was laid
off in July 2009. Doc. 22-3 at 6; doc. 1.
B.

The decline in KRB’s business and KRB’s reorganization
The economic downturn affected KRB’s business in 2009 and resulted in a

decline in sales from $352,388.25 in 2008 to $158, 577.31 in 2009. Doc. 22-2 at
18. The monthly sales breakdown was as follows:
Monthly Sales Breakdown:
January
February
March
April
May
June

2008 ($352,388.25) v. 2009 ($158,577.31)
$28,577.96
$13,005.95
$27,181.34
$12,560.42
$62,522.05
$30,095.65
$29,090.80
$16,745.45
$26,413.30
$11,934.85
$30,193.32
$16,775.45
Page 5 of 15

July
August
September
October
November
December

$23,764.45
$22,548.55
$19,964.59
$38,124.58
$22,806.59
$21,200.45

$16,400.25
$8,051.44
$11,201.09
$5,266.16
$10,369.85
$6,170.75

Id. KRB attributes the decline to Harris’s failure to generate new business to
replace the repeat customer business that decreased in 2009. Doc. 22-1 at 16. In
light of the more than 50% decline in sales, Chad and Brad Fielder decided to
reorganize, in part, by eliminating Harris’s position and that of another silkscreening employee. Doc. 22-1 at 18, 20, 23; doc. 25 at 4. However, while Chad
Fielder was disappointed in Harris’s failure to generate new business, he did not
ascribe the decline in KRB’s work to Harris and understood that the economy
factored in the decline. Docs. 26 at 4; 22-1 at 16, 18.
On Sunday, June 21, 2009, before KRB informed Harris of the decision to
lay him off, KRB ran the following advertisement in The Huntsville Times:
Graphic Artist
Technical Illustrator
performing artwork generation for silkscreen and digital printing
processes. Must be proficient in the use of Illustrator or Corel Draw.
Interpretation of blue prints and technical specifications is a plus.
Position requires good customer relation skills and offers growth
potential. Fill out an application at: 2858 Wall Triana Hwy,
Huntsville, AL 35824. Fax resume to: 256-851-2937 or E-Mail
[e-mail]

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Doc. 22-2 at 2. Harris showed the ad to Brad Fielder the next day and asked if he
should worry about his job. Doc. 22-5 at 51. Allegedly, Brad Fielder said he did
not know anything about the ad, and assured Harris that he did not need to worry
about his job. Id. Harris also showed the ad to Marty Williams who told Harris
that the ad did not pertain to Harris and that Harris had no reason to worry. Id. at
51-52. Despite the assurances, Harris still asked Williams if he should apply for
the position and was told no. Id. at 52.
On July 1, 2009, despite the previous assurances, Chad Fielder and Marty
Williams informed Harris of the decision to lay him off because of the revenue
decline. Docs. 22-1 at 18, 20; 22-4 at 8; 22-5 at 55-56. When Harris asked if he
could stay on at half of his salary in lieu of the lay off, Chad Fielder declined the
offer. Doc. 22-5 at 56. According to Chad Fielder, Harris’s performance played
no role in the decision to lay him off. Id. KRB provided conflicting reasons
regarding its decision not to offer Harris the new position or allow him to stay at a
reduced salary. Specifically, Williams testified that he did not think Harris was a
good fit for the advertised position because of Harris’s technical errors. Doc. 22-4
at 8-9. However, Chad and Brad Fielder testified that Harris was qualified for the
advertised position, but that Harris was not a good fit because Harris refused to
help with the second part of the silk-screening process and was not capable of
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doing it.3 Docs. 22-1 at 23-25; 22-3 at 10-11. Chad Fielder also testified that he
rejected Harris’s offer to stay on at half of his salary because he did not want to
“insult” Harris with the lower paying position. Doc. 22-1 at 40.
C.

KRB hires 22 year old for advertised position after Harris laid off
On July 9, 2009, KRB hired Jonathan Mann, age 22, for the new position.

Docs. 22-1 at 21; 22-2 at 5, 17. The parties disagree on whether Mann replaced
Harris. Doc. 26 at 11. KRB asserts that the two positions had different
responsibilities and pay grades, that Mann’s job was an hourly rate position with a
lower skill set, and that KRB designed the new job to bring someone in at a lower
pay scale and to train him to perform the entire silk-screening process. Doc. 22-1
at 22-23. KRB paid Mann $16 per hour, just slightly more than half of Harris’s
salary. Docs. 22-2 at 8; 22-5 at 30. Moreover, KRB contends that, unlike Harris’s
position, the new position had no expectation or requirement to grow sales nor any
managerial responsibilities. Doc. 22-1 at 22-23. To no surprise, Harris disagrees
and asserts that contrary to the “Graphic Artist/Technical Illustrator”
advertisement, doc. 22-2 at 2, Mann’s Employee Information sheet identified
Mann as a “Graphics Mgr,” id. at 8. Moreover, Harris asserts that when KRB

3

Harris testified that he never refused to help and that he often helped with the entire
process. Doc. 25 at 4.
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introduced Mann to “customers and vendors” via an email, the subject stated
“KRB Electronics Contact Information and New Graphics Manager,” and the
email stated that “KRB Electronics is pleased to announce our new Graphics
Manager, Jonathan Mann. With an extensive background ranging from fine art to
technical illustration and industrial design, Jonathan provides value added services
and expertise for your silk screening, labeling, and wide format printing projects.”
Doc. 22-2 at 40 (emphasis added).
III. ANALYSIS
The ADEA makes it “unlawful for an employer ... to fail or refuse to hire or
to discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). When a plaintiff alleges
disparate treatment, “liability depends on whether the protected trait (under the
ADEA, age) actually motivated the employer’s decision.... That is, the plaintiff’s
age must have ‘actually played a role in [the employer’s decisionmaking] process
and had a determinative influence on the outcome.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (citation omitted). Courts have
often recognized that this inquiry “is both sensitive and difficult and that there will
seldom be eyewitness testimony as to the employer’s mental processes.” Id.
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(internal quotations omitted). Consequently, courts have applied some variation
on the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, and its progeny to analyze ADEA circumstantial evidence cases. Id.
(citations omitted); see also Walker v. NationsBank of Fla., N.A., 53 F.3d 1548,
1556 (11th Cir. 1995).
Under the McDonnell Douglas Corp. framework, a plaintiff must first create
an inference of discrimination by establishing a prima facie case. Walker, 53 F.3d
at 1556 (citation omitted). If established, the prima facie case raises a
presumption that the employer is liable to the employee under the ADEA. Id.
(citing Texas Dept. of Community of Affairs v. Burdine, 450 U.S. 248, 254 (1981)).
“[T]he burden then shifts to the defendant to produce some ‘legitimate,
nondiscriminatory reason’ for the adverse employment decision.” Id. (quoting
Burdine, 450 U.S. at 254). Because the defendant need only produce, not prove, a
nondiscriminatory reason, this burden is “exceedingly light.” Id. (quoting
Perryman v. Johnson Products Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983)).
Once the defendant carries the burden of production, the plaintiff must prove
through presentation of a preponderance of the evidence that the reason provided
by the defendant is a pretext for unlawful discrimination. Burdine, 450 U.S. at
253. “To show pretext, a plaintiff may demonstrate such weaknesses,
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implausibilities, inconsistencies, incoherencies, or contradictions in the proffered
reasons for the employment action such that a reasonable factfinder could find
them unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th
Cir. 2004) (internal quotations omitted). “However, the plaintiff cannot merely
quarrel with the wisdom of the employer’s reason, but must meet the reason head
on and rebut it.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)
(internal quotations omitted). “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff remains at all
times with the plaintiff.” Springer v. Convergys Customer Mgmt. Group Inc., 509
F.3d 1344, 1347 (11th Cir. 2007) (citation omitted).
To establish a prima facie case of age discrimination, a plaintiff must
produce evidence that (1) he is a member of a protected group; (2) he was
qualified for the position held; (3) he was subjected to an adverse employment
action; and (4) a substantially younger person filled the position that he sought or
from which he was discharged. See Damon v. Fleming Supermarkets of Fla., 196
F.3d 1354, 1359 (11th Cir. 1999). “Demonstrating a prima facie case is not
onerous; it requires only that the plaintiff establish facts adequate to permit an
inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997). Indeed, even if a plaintiff was not replaced by someone younger, he can
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still establish a prima facie case under the “job-reduction” model by showing: (1)
that he was in a protected group and was adversely affected by an employment
decision; (2) that he was qualified to assume another position at the time of
discharge or demotion; and (3) evidence by which a factfinder might reasonably
conclude that the employer intended to discriminate in reaching the decision at
issue. Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987).
Harris asserts that he can establish a prima facie case under both the
“replacement” and “job-reduction” models. Doc. 26 at 11. KRB appears to
concede that Harris can establish elements one through three of the “replacement”
prima facie case: Harris was 61 (step one), doc. 1 at 4, was qualified for the new
position according to Chad and Brad Fielder (step two), docs. 22-1 at 23; 22-3 at
10, and suffered an adverse employment action (step three). However, KRB
challenges the fourth element because it asserts that it eliminated Harris’s position
instead of “replac[ing] [him] by a younger person.” Doc. 21 at 10-11. Moreover,
KRB asserts also that Harris’s position included managerial and business
generating responsibilities, neither of which the new position required. Doc. 22-1
at 22-23. Harris disagrees and contends that KRB hired Jonathan Mann, who was
nearly forty years younger, immediately after into the remarkably similar new
position. Doc. 26 at 11. Harris further asserts that regardless of Mann’s lesser
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pay, KRB held Mann out as its “Graphics Manager,” i.e. the position Harris held.
Id. Thus, Harris contends that he has sufficient evidence to establish a prima facie
case under the “replacement” model. Id.
The court does not have to resolve this issue because Harris has clearly
established a prima facie case under the “job-reduction” model. Again, the first
element of the “job-reduction” prima facie case is not in question since Harris was
in a protected group and was adversely affected by the lay off. As to the second
element, KRB admitted that Harris was qualified for the advertised position. See
Barnes, 814 F.2d at 609; docs. 22-1 at 23; 22-3 at 10. However, as to the third
element, KRB contends that it laid Harris off because business plummeted in 2009
and that Harris can present no evidence that it intended to discriminate against
him. See doc. 21 at 12; Barnes, 814 F.2d at 609. The court disagrees. As Harris
reiterated, the Eleventh Circuit is clear that “demonstrating a prima facie case is
not onerous; it requires only that the plaintiff establish facts adequate to permit an
inference of discrimination.” Doc. 26 at 12 (quoting Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997). Moreover, Harris cites Jameson v. Arrow Co., 75
F.3d 1528 (11th Cir. 1996), in which the court held that “when a discharged
employee applies for a job for which she is qualified and which is available at the
time of her termination....An employer’s decision to transfer or to hire a younger
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employee for that available position is sufficient to support an inference of
discrimination for the limited purpose of establishing the plaintiff’s prima facie
case...” 75 F.3d at 1533. Therefore, because Harris was qualified for the
advertised position (a fact KRB acknowledged), informed KRB that he wanted to
apply for it, and also offered to work for half of his pay, Harris has established a
“job reduction” model prima facie case of age discrimination under Jameson. See
75 F.3d at 1533.
The burden now shifts to KRB, and KRB has established that its reduced
revenues and the declining economy in 2009 were legitimate, non-discriminatory
reasons for laying Harris off. Doc. 26 at 4. Consequently, the burden shifts back
to Harris to establish that KRB’s reasons are pretextual. In that regard, Harris
contends the financial reason is pretextual because of purported “implausiblities,
inconsistencies, incoherencies [and] contradictions” in KRB’s argument. See
Cooper, 390 F.3d at 725. Specifically, Harris contends that (1) KRB immediately
replaced him with a “scaled down” position, (2) KRB hid the advertised position
from him and when he found out and inquired about it, KRB told him his position
was not in jeopardy, (3) when he asked KRB to consider him for the advertised
position, despite acknowledging he was qualified, KRB did not even allow him to
apply even after he offered to take a 50% pay cut, and (4) the advertised position
Page 14 of 15

was only for the graphics artwork side of the business, as outlined in the
advertisement, rather than for the entire silk-screening process as KRB contends.
Doc. 26 at 17. While the court finds that KRB’s financial reasons for eliminating
Harris’s position were legitimate and reasonable in light of the revenue issues in
2009, the court finds critical that KRB told Harris not to apply for the new
advertised position despite the undisputed fact that Harris was qualified and also
assured Harris his job was not in jeopardy. Whether this evidence of
“implausiblities, inconsistencies, incoherencies [and] contradictions” is
tantamount to age discrimination is for a jury to decide. Because Harris has
established that KRB’s financial reasons for terminating him were pretexual in
light of his willingness to apply for the new position and to take the corresponding
pay cut, KRB’s motion for summary judgment is DENIED.
IV. CONCLUSION
Based on the foregoing reasons, Harris has established a prima facie case of
age discrimination and showed that KRB’s articulated reasons are pretextual.
Therefore, KRB’s motion for summary judgment is DENIED.
DONE the 29th day of November, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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