Henry v. Vencore Services and Solutions, Inc.

Filing 33

MEMORANDUM OPINION and ORDER granting in part and denying in part 25 MOTION for Summary Judgment filed by Vencore Services and Solutions, Inc.; The plaintiff alleges that Vencore Services and Solutions, Inc. discharged him because of his age and/or in retaliation for his protected activity, in violation of the Age Discrimination in Employment Act, 1 ; Vencore has filed a motion for summary judgment, 25 , which is fully briefed and ripe for consideration; As stated within, cons istent with this opinion, Vencore's Motion for Summary Judgment, 25 , is DENIED solely as to Henry's claim in Count I that Vencore discharged him because of his age; The motion is GRANTED in all other respects; Accordingly, Henry's discrimination claim related to his transfer (Count I) and his retaliation claim (Count II) are DISMISSED WITH PREJUDICE. Signed by Judge Abdul K Kallon on 3/23/2018. (KBB)

FILED
2018 Mar-23 AM 09:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
KEITH HENRY,
Plaintiff,

vs.
VENCORE SERVICES AND
SOLUTIONS, INC.,
Defendant.

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Civil Action Number
5:16-cv-01814-AKK

MEMORANDUM OPINION AND ORDER
Keith Henry alleges that Vencore Services and Solutions, Inc. discharged
him because of his age and/or in retaliation for his protected activity, in violation
of the Age Discrimination in Employment Act, 29 U.S.C. § 621. Doc. 1. Vencore
has filed a motion for summary judgment, doc. 25, which is fully briefed and ripe
for consideration, docs. 26; 27; 30; 31; 32. After reading the briefs, viewing the
evidence, and considering the relevant law, the court finds that the motion is due to
be denied with respect to the discharge discrimination claim and granted in all
other respects.
I.

LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary

judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56. “Rule 56[] 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 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) (alteration in original). 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 (internal quotations 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).
At summary judgment, the court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving
party. Id. at 255. Any factual disputes will be resolved in the non-moving party’s
favor when sufficient competent evidence supports the non-moving party’s version
of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th
Cir. 2002). 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)). Moreover, “[a] mere ‘scintilla’ of

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evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
FACTUAL BACKGROUND 1

II.

After receiving an engineering degree in 1959, Henry embarked upon a long
career in the aerospace industry performing stress analysis. Doc. 27-1 at 2-3. As a
stress analysis engineer Henry determined the structural integrity of various
aircrafts by performing geometric calculations by hand. Docs. 27-1 at 2-5; 27-2 at
69. He retired in 1992 at age fifty seven, but returned to the workforce after the
2008 financial crisis. Doc. 27-1 at 3. So in 2010, at age seventy four, Henry
accepted a position with Vencore performing stress analysis for the U.S. Army’s
OH-58 helicopters. Id.
During his first few years, Henry received superb work evaluations and
loved his work, stating that it was the “best job [he] ever had.” Doc. 27-2 at 39,
93, 100, 102. Things changed when Henry complained to his supervisor, Tony
Page, that one of his younger coworkers was harassing him because of his age.
Page informed Henry that other employees had similar complaints about this
employee and that he would speak with the employee.

Doc. 27-2 at 53-56.

Because the harassment continued, Henry filed a charge with the Equal
1

The court recites the facts drawing all justifiable inferences in Henry’s favor. See
Anderson, 477 U.S. at 255.
3

Employment Opportunity Commission in November, 2013. Doc. 27-3 at 25. The
charge also alleges age discrimination due to Vencore’s promotion of a younger,
less qualified employee instead of Henry. Id. Page knew about the EEOC charge
and attended a meeting with the human resources staff to discuss it. Doc. 27-2 at
5, 18.
Around this time, Vencore shifted several of its employees, including Henry,
to different projects as a result of government budget cuts. Doc. 27-2 at 20-21. At
some point between February and April 2014,2 Page transferred Henry to the CH47 helicopter project, under the supervision of Cliff Myers. Docs. 27-1 at 7-11;
27-2 at 20-23. Henry claims that one of the first questions Myers asked him was
whether Henry had “plans to retire.” Doc. 27-1 at 13. Although he does not
specifically remember asking this question, Myers—who is just two years younger
than Henry—admits that he may have asked about Henry’s retirement plans “in
passing” or as part of “casual conversation.” Doc. 27-3 at 9, 23.
The transfer resulted in Henry receiving primarily menial assignments that
did not require any stress analysis. Docs. 27-1 at 7-11; 27-2 at 20-21. Henry
complained to Myers, who agreed that Henry’s new assignment was “dog work”
and “not the most fun.” Doc. 27-3 at 7-8. Although he was not thrilled with the
2

The exact date Vencore transferred Henry to the CH-47 project is unclear. Henry’s
second EEOC charge states the transfer occurred “on or about February 24, 2014,” doc. 27-3 at
30, but Henry and Page testified in their respective depositions that the transfer occurred in
March, 2014, docs. 27-1 at 7; 27-2 at 20-21, and Vencore states in its brief that it reassigned
Henry in April, 2014, doc. 26 at 3.
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work, Henry continued to dutifully perform his obligations and received positive
evaluations. Docs. 27-1 at 16; 27-2 at 111-31. Despite the positive reviews,
Vencore discharged Henry, aged 79, two and a half years after transferring him to
the CH-47 project. Docs. 27-1 at 3, 35; 31-5 at 1.
Vencore cites the Army’s budget cuts to the CH-47 program as the basis for
Henry’s discharge. Apparently, after receiving notice of the cuts, Greg Oelberg, a
program manager, concluded that “it would be necessary to reduce by one the
number of engineers” working on the CH-47 program. Doc. 27-4 at 2. As a result,
Oelberg directed Page, who ultimately “get[s] to pick who stays and goes” in the
programs under his control, doc. 27-2 at 27, to recommend one of the CH-47
employees for discharge, docs. 27-2 at 5, 78-80. To make his decision, Page asked
Myers, the supervisor of the team, to list employees “from most to least essential,”
adding “I think I know, but want to compare lists.” Docs. 27-2 at 5, 78-80. In the
list Myers prepared, he ranked Henry last out of the five employees on the team.
Doc. 27-2 at 79. At the time, Henry was between seventeen to twenty eight years
older than the other four team members, and had as many or more years of
experience at Vencore as them. Doc. 31-5 at 1. Myers testified that he did not use
any objective factors to rank the employees and created the list purely on his own
view of each employee’s “capability.” Doc. 27-3 at 19. Myers later modified his

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testimony, however, to add that he considered “capability and knowing how to do a
finite element analysis.” 3 Doc. 27-3 at 20.
A second round of Army budget cuts caused Vencore to lay off several other
employees in 2016, including Gary Whitfield—who is seventeen years younger
than Henry and also worked on the CH-47 project. Docs. 27-2 at 28-38; 31-5 at 1.
Vencore subsequently rehired Whitfield for the CH-47 project. Doc. 27-2 at 2728.
III.

ANALYSIS
Henry’s complaint pleads age discrimination (Count I) and retaliation

(Count II). Doc. 1. Specifically, Henry asserts that Vencore transferred him to the
CH-47 project and ultimately discharged him because of his age and/or in
retaliation for his EEOC charge. Id. Vencore has moved for summary judgment
on both counts. Doc. 26. The court will address each count separately below.
A. Age Discrimination (Count I)
The ADEA prohibits employers from taking adverse employment actions
against an employee who is at least 40 years of age because of his age. 29 U.S.C.
§§ 623(a)(1), 631(a). This requires showing that, but for the employee’s age, the

3

Finite element analysis is a specialized process for complex structures, conducted by
computer, which divides the component parts of a physical body into a finite number of elements
and calculates the stress concentration of each part accordingly. Docs. 27-1 at 5; 27-3 at 10, 23.
Henry concedes that he lacks this expertise. Doc. 27-2 at 29, 111-31.
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employer would not have taken the action. Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 176 (2009). Crucially, the ADEA only protects against discrimination
that favors younger employees, Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 591 (2004) (“The enemy of 40 is 30, not 50.”), and the comparator employees
must be “substantially younger than the plaintiff,” O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 313 (U.S. 1996) (holding that “the replacement of
one worker with another worker insignificantly younger” will not state a prima
facie case, even if the replacement worker is under 40).
Where, as here, an ADEA plaintiff bases his claim on circumstantial
evidence,4 courts use the same burden shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title VII claims. See Liebman
v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015). “Initially, the
plaintiff must establish a prima facie case of discrimination. The employer then

4

To be clear, Henry does allege that he has direct evidence of discrimination—i.e. Myers
alleged inquiry into Henry’s retirement plans. Direct evidence is “evidence that, if believed,
proves the existence of a fact without inference or presumption” and includes “only the most
blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some
impermissible factor.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(internal quotations omitted). Though it helps Henry’s circumstantial case, Myers’ question is
not such a “blatant” remark that it can prove discrimination without the need for an inference or
presumption. See id.; see also Lawson v. City of Pleasant Grove, No. 2:14-CV-0536-JEO, 2016
WL 2338560, at *11 (N.D. Ala. Feb. 16, 2016), report and recommendation adopted, No. 2:14CV-536-KOB, 2016 WL 1719667 (N.D. Ala. Apr. 29, 2016) (“[I]solated remarks of
a decisionmaker suggestive of some bias . . . may serve as circumstantial evidence of
discrimination, [but] are not themselves typically enough to support an inference that a particular
adverse action was motivated by such bias.”); Leatzow v. A.M. Castle & Co., No. 99-14218-CIV,
2001 WL 1825851, at *4 (S.D. Fla. Nov. 14, 2001) (“[T]his court is disinclined to conclude
that an isolated inquiry regarding . . . projected retirement plans is indicative of pretext.”).
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must respond with a legitimate, nondiscriminatory reason for its actions. In order
to prevail, the plaintiff must establish that the employer’s articulated legitimate,
nondiscriminatory reason was a pretext to mask unlawful discrimination.”
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998).
To state a prima facie case, the plaintiff typically must prove that he was
subjected to an adverse employment action in contrast to a similarly situated
employee who is substantially younger. Chapman v. AI Transp., 229 F.3d 1012,
1043 (11th Cir. 2000). Courts apply a slightly different analysis, however, where a
position is eliminated entirely. In such an instance, the plaintiff must show (1) that
he was at least forty years old and was adversely affected by an employment
decision, (2) that he was qualified for his current position or to assume another
position at the time of discharge, and (3) evidence by which a fact finder could
reasonably conclude that the employer would not have selected him for layoff but
for his age. Jameson v. Arrow Co., 75 F.3d 1528, 1531–32 (11th Cir. 1996).
Henry complains of two separate adverse actions: his transfer to the CH-47
project in 2013, and his termination in 2015. The transfer claim fails because
Henry cannot point to any similarly situated, substantially younger employees on
the OH-58 project that Vencore treated more favorably. See Chapman, 229 F.3d at
1043. In fact, Vencore also transferred several younger employees around this
time. Doc. 27-2 at 20-21. Moreover, even if Henry could state a prima facie case,

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Vencore has articulated a legitimate, nondiscriminatory reason for the transfer,
namely, cuts to the OH-58 program, doc. 27-2 at 20-21, which Henry has failed to
rebut. Accordingly, the discrimination claim related to the transfer fails.
As for the termination claim, Vencore concedes that Heney can satisfy the
first two elements of his prima facie case that he was at least forty years old, was
discharged, and qualified for his position. Vencore contends, however, that Henry
lacks any evidence creating an inference of age discrimination. Doc. 26 at 13. To
the contrary, viewing the evidence in the light most favorable to Henry shows that
he has demonstrated that (1) the primary decision maker inquired about his
retirement plans; (2) he was the only team member laid off, even though he had as
much or more experience than the rest of the team; (3) he was substantially older
than the rest of the team; and (4) although Vencore laid off a younger individual
several months later for economic reasons, it subsequently rehired that employee
for the same position Henry held. Docs. 27-2 at 27-38; 27-3 at 9, 23; 31-5 at 1.
Taken together, a reasonable jury could deduce from this evidence that Vencore
selected Henry for layoff because of his age. See Jameson, 75 F.3d at 1531–32.
Vencore also challenges the prima facie case by noting that the fact that
Page, who is fifty four, and Myers, who is seventy eight, “are in the protected age
class with the plaintiff . . . undermines the claim that [Henry’s termination] was
based on age.” Doc. 26 at 14. While it is true generally that Page and Myers “are

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more likely to be the victims of discrimination than its perpetrators,” Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir. 1991), such an argument is
one for a jury and not a reason to grant summary judgment. Although Myers’ age
may make it less likely that he discriminated against Henry because of his age, see
Langston v. Carraway Methodist Hosps. of Alabama, Inc., 840 F. Supp. 854, 866
(N.D. Ala. 1993), this fact alone is insufficient to defeat Henry’s prima facie case.
As one court aptly put it in rejecting a similar argument, “employers could easily
immunize themselves from discrimination claims merely by stocking their human
resources departments with a rainbow coalition” of protected groups. See Mosby v.
Bd. of Educ. of the City of Norwalk, No. 3:15-CV-01876 (JAM), 2017 WL
4368610, at *5 (D. Conn. Sept. 30, 2017). Moreover, Page—who accepted Myers’
recommendation and ran it up the chain to Oelberg—is fifty four and thus
“substantially younger” than Henry. See O’Connor, 517 U.S. at 313. Therefore,
because stating a prima facie case is “not onerous,” and a plaintiff satisfies this
burden by setting forth acts that, “if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors,” Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981), the court concludes that Henry has
easily satisfied that burden here.
Moreover, a reasonable jury could conclude that Vencore’s stated reason for
selecting Henry for the layoff—his inability to perform finite element analysis—is

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a pretext for discrimination.5 As an initial matter, Page admits he gave Myers no
objective criteria from which to create his list, doc. 27-2 at 35, and courts generally
impose higher levels of scrutiny to subjective employment decisions.

See

Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985). This subjectivity is
evidenced in Myers’ initial answer that he considered only “capability” when
creating the list. Doc. 27-3 at 19. Though he later testified that he also considered
proficiency in finite element analysis, the pretextual nature of this reasoning is
evident in Page’s and Myers’ admission that stress analysis engineers did not need
to perform finite element analysis. Docs. 27-2 at 29; 27-3 at 23. In fact, Vencore’s
2015 posting for a vacancy contains nothing about finite element analysis or even
computer proficiency. See docs. 27-1 at 33-34; 27-2 at 23, 32; 27-3 at 23. The
failure to list this as a job requirement, coupled with the excellent evaluations
Henry received, which never mentioned that Henry needed to learn finite element
analysis, see doc. 27-2 at 90-140, and Myers’ admission that he could not recall
any assignments that Henry was unable to perform using hand calculations, doc.
27-3 at 10-11, are sufficient for Henry to meet his burden to show pretext. See
Turlington, 135 F.3d at 1432. Therefore, because the record paints a picture of a
5

Henry also contends that the budget cuts are pretextual because “Vencore has the ability
to manipulate the funds in a given project.” Doc. 30 at 24. The ADEA “does not mandate that
employers . . . transfer an employee to another position when it reduces its work force for
economic reasons.” Taylor v. Canteen Corp., 69 F.3d 773, 780 (7th Cir. 1995). Moreover,
courts are not taxed with “second-guess[ing] the wisdom of an employer’s business decisions.”
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010).
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post hoc rationalization for Myers’ seemingly subjective decision to name Henry
as the most expendable member of the team, summary judgment is due to be
denied on the disparate treatment discharge claim.
B. Retaliation (Count II)
To successfully allege a prima facie case of retaliation under the ADEA, a
plaintiff must show that “(1) she engaged in statutorily protected expression; (2)
she suffered an adverse employment action; and (3) the adverse action was
causally related to the protected expression.” Weeks v. Harden Mfg. Corp., 291
F.3d 1307, 1311 (11th Cir. 2002). The only issue here is causation, which requires
that the plaintiff establish that the adverse action would not have occurred but for
her age. See Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).
Henry alleges that his EEOC charge in November 2013 motivated his
reassignment in early 2014 and his subsequent termination in November 2015.
Doc. 30 at 27-31. Proving causation typically requires showing, at a minimum,
“that the defendant was actually aware of the protected expression at the time the
defendant took the adverse employment action.” Raney v. Vinson Guard Serv.,
Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). There is no dispute that Page—who
moved Henry to the CH-47 project—knew of Henry’s EEOC charge. Doc. 27-2 at
18, 23. Still, to prevail Henry must prove that, but for his charge, Vencore would
not have reassigned him. See Nassar, 570 U.S. at 360. Henry cannot make that
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showing because he has failed to uncover any evidence that his EEOC charge
motivated his reassignment.

In general, a plaintiff can prove causation “by

showing close temporal proximity between the statutorily protected activity and
the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1364 (11th Cir. 2007) (internal quotations omitted). Viewing the evidence in the
light most favorable to Henry, his best case scenario is that Page reassigned him
three months after he filed his EEOC charge. See n.2 supra. However, a gap of
three months, standing alone, is too remote to establish causation, and Henry has
failed to demonstrate any “other evidence tending to show causation.”
Thomas, 506 F.3d at 1364.

See

Moreover, Henry failed also to rebut Vencore’s

legitimate, nonretaliatory reason for the transfer: budget cuts to the OH-58
program, which resulted in the transfers of several employees, including Henry.
Doc. 27-2 at 20-21. Accordingly, the retaliation claim based on Henry’s transfer to
the CH-47 project fails. See Weeks, 291 F.3d at 1311.
The retaliation claim for the discharge also fails. Nearly two years had
passed between the EEOC charge and Henry’s discharge, far too long to raise an
inference of causation. See Thomas, 506 F.3d at 1364. Also, there is no evidence
that Myers—who recommended Henry’s discharge—knew about the charge. See
doc. 27-3 at 5, 18. Therefore, in light of Henry’s failure to state a prima facie case,
summary judgment is also due on his retaliation claim.

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CONCLUSION AND ORDER
Consistent with this opinion, Vencore’s Motion for Summary Judgment,
doc. 25, is DENIED solely as to Henry’s claim in Count I that Vencore discharged
him because of his age.

The motion is GRANTED in all other respects.

Accordingly, Henry’s discrimination claim related to his transfer (Count I) and his
retaliation claim (Count II) are DISMISSED WITH PREJUDICE.
DONE the 23rd day of March, 2018.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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