Finney v. Lockheed Martin Corporation

Filing 40

OPINION AND ORDER Granting Defendant's Motion for Summary Judgment 29 by Chief Judge Marcia S. Krieger on 3/24/15. (pglov)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00869-MSK-BNB
RICHARD FINNEY,
Plaintiff,
v.
LOCKHEED MARTIN CORPORATION,
Defendant.

OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

THIS MATTER comes before the Court pursuant to the Defendant Lockheed Martin
Corporation’s (“Lockheed”) Motion for Summary Judgment (#29), the Plaintiff Richard
Finney’s Response (#37), and Lockheed’s Reply (#38).
ISSUES PRESENTED
Mr. Finney asserts two claims related to his termination from Lockheed in 2012: (1) age
discrimination and hostile work environment in violation of the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et seq.; and (2) retaliation in violation of the ADEA.
The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
MATERIAL FACTS
Based upon the evidence submitted by the parties, which the Court construes most
favorably to Mr. Finney, the basic material facts are as follows. As needed, additional evidence
and facts will be discussed as part of the Court’s analysis.

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Mr. Finney is currently 56 years old, and holds a master’s degree in electrical
engineering. He began working for Lockheed in 1980. Through 2008, Mr. Finney’s superiors
consistently gave him positive performance evaluations.
In 2008, Mr. Finney was working on the Aerial Reconfigurable Embedded System
(ARES). As the ARES project began winding down, Mr. Finney began working part time with
the Gravity Recovery and Interior Laboratory (GRAIL) program. He transitioned to full-time
work on the GRAIL program in April 2009. While working on GRAIL program, Mr. Finney’s
manager, Stuart Spath, tried to have him removed from the program and then rated him as a
“basic contributor” in his annual review.1 This was the first negative review Mr. Finney had
received in his career with Lockheed. In response to his 2009 performance review, on June 22,
2010, he filed a Charge of Discrimination against Lockheed with the EEOC.2
In December 2010, Mr. Finney was notified that his work on the GRAIL project was
coming to an end. He and his supervisors began looking for another assignment for him. David
Chang, the manager of the Global Positional System III (GPS-III) program, agreed to “borrow”
Mr. Finney for the GPS-III program for a trial period. After three months, Mr. Finney applied for
an open “Grade 3 engineer” position3 with the GPS-III program and Mr. Chang approved his
transfer. Mr. Finney was a Grade 5 engineer before joining the GPS-III project, but he was
reduced to a Grade 4 engineer in June 2011, although there was no pay reduction. In an email
1

Lockheed’s review procedure is known as the Performance Assessment and Development
Review (PADR). At the time it used a five-tier rating system: exceptional was a “1”; high
contributor was a “2”; successful contributor was a “3”; basic contributor was a “4”; and
unsatisfactory was a “5”.

2

The claims asserted in Mr. Finney’s Complaint in the instant action are not based on this
Charge of Discrimination.
3

The engineering positions are divided into five grades, with Grade 5 being the highest.
2

dated June 28, 2011, Mr. Finney complained about his reduction in status to Mr. Chang and
stated that he believed he was “singled out for discrimination, and subsequently retaliation
actions.” On August 23, 2011, Mr. Finney filed a second Charge of Discrimination based on age
with the EEOC.
In September 2011, Timothy Halbrook became Mr. Finney’s direct supervisor in the
GPS-III project. Mr. Finney contacted Mr. Halbrook to request assistance with becoming a
Grade 5 engineer, again. On October 10, 2011, Mr. Finney presented Mr. Halbrook with his
“Formal Request for Reinstatement as Senior Staff Engineer.” It outlined Mr. Finney’s
experience and stated that “Mr. Finney has been subject to various discrimination and retaliation
actions by Mr. Tim Linn and Mr. Stu Spath, as properly and fully reported to Ethics and EEO.”
Mr. Halbrook advised Mr. Finney that he would be placed on a performance improvement plan
(PIP). Mr. Halbrook issued the PIP in November 2011, but later issued a second PIP to correct
errors in the first one. Mr. Halbrook rated Mr. Finney as a basic contributor in his annual PADR
review for 2011. On December 20, 2011, by email Mr. Finney complained to human resources
personnel that the review “serve[d] no purpose but to do purposeful, malicious, irreparable harm
to one of this company’s best employees.” The email also stated that the assessment was an
“additional directed act of retaliation.” Copies were sent to Mr. Halbrook and Mr. Chang.
In 2012, as part of a reduction in force (RIF) implemented by Lockheed, Mr. Halbrook
and Mr. Chang made the decision to eliminate one electrical engineering position.4 Mr. Halbrook
and Mr. Chang decided to consider Grade 4 engineers for the RIF. Mr. Finney was still a Grade
4 engineer.
4

When he began working on the GPS-III program, Mr. Halbrook supervised eighty employees.
The Vice President of the GPS-III program instructed Mr. Halbrook to reduce his department to
fifty employees. Mr. Halbrook did so through a combination of layoffs, eliminating overtime,
and reducing the number of part-time employees assigned to the program.
3

For a RIF, Lockheed used a Talent Differentiation Ranking Sheet to evaluate and
compare employees. Managers and supervisors of the employees potentially affected held a
Talent Differentiation Ranking (TDR) session, and then submitted their assessments to HR.
During the TDR session, the managers and supervisors rated all employees being considered
according to a number of factors including as job complexity and breadth, and the employee’s
skill level. These scores were combined with the employee’s average performance review ratings
and adjusted for length of service to calculate the employee’s score on the Talent Differentiation
Ranking Sheet. The employee with the highest score was selected for layoff.
The TDR for Grade 4 engineers in the GPS-III program was held on March 23, 2012. At
the end of that session, Mr. Finney had the highest score. On April 12, 2012, Mr. Chang notified
Mr. Finney that he would be laid off on April 26, 2012, unless he could find another position
within Lockheed before that date. Mr. Finney was unsuccessful in locating another position
within Lockheed and consequently was laid off.
On August 3, 2012, Mr. Finney filed a third Charge of Discrimination with the EEOC,
alleging that Lockheed laid him off because of his age and in retaliation for the complaints of
discrimination he filed internally and with the EEOC. He received a Notice of Right to Sue on
January 4, 2013. Mr. Finney filed this lawsuit on April 4, 2013 asserting two claims against
Lockheed (1) age discrimination and hostile work environment in violation of the ADEA; and
(2) retaliation for engaging in protected activity under the ADEA.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and

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a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs
which facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof, and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser–
Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual dispute is
“genuine” and summary judgment is precluded if the evidence presented in support of and
opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for
either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a
court views all evidence in the light most favorable to the non-moving party, thereby favoring
the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002).
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
ANALYSIS
Lockheed moves for summary judgment on both of Mr. Finney’s claims.
1. Age Discrimination
The ADEA broadly prohibits discrimination in the workplace based on age. 29 U.S.C. §
623(a). Mr. Finney’s first claim asserts Lockheed discriminated against him by laying him off
and subjecting him to a hostile work environment because of his age.

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a. Termination
When there is no direct evidence of discrimination, the Court applies the burden-shifting
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under
that framework, Mr. Finney first bears the burden of establishing a prima facie case for his claim
of age-based discrimination. If he is successful, the burden shifts to Lockheed to articulate a
legitimate, non-discriminatory reason for his termination. If Lockheed does so, Mr. Finney then
bears the ultimate burden of demonstrating that Lockheed’s proffered reason is a pretext for
discrimination. Lockheed asserts that Mr. Finney cannot establish a prima facie case of
discrimination and, even if he can, that he has not presented sufficient evidence to show that
Lockheed’s proffered reason is pretext.
For a prima facie case of age discrimination under the ADEA, Mr. Finney must come
forward with evidence to prove that (1) he belongs to the class protected by the ADEA; (2) he
suffered an adverse employment action; (3) he was qualified for his position; and (4) he was
treated less favorably than others not in the protected class. Jones v. Oklahoma City Public
Schools, 617 F.3d 1273, 1279 (10th Cir. 2010).
For purposes of this motion there is no dispute that Mr. Finney has presented sufficient
evidence to establish the first and second elements of a prima facie age discrimination claim
under the ADEA. However, Lockheed argues that Mr. Finney cannot establish that he was
qualified for his position or treated less favorably than others not in the protected class.
Construing the evidence most favorably to Mr. Finney, the Court finds it sufficient for a
prima facie case. Mr. Finney has testified that his work on the GPS-III program was
satisfactory, which is sufficient to satisfy the third element. See Hodgson v. U.S. Air Force, 999
F.2d 547, 3 (10th Cir. 1993). Additionally, a plaintiff who has been terminated because of a RIF

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can establish the fourth element by pointing to circumstances that show that the employer instead
chose to retain a younger employee. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1167
(10th Cir. 1998). Mr. Finney has satisfied this element because he has submitted evidence that
several of the Grade 4 engineers retained by Lockheed were younger than he was.
In response to Mr. Finney’s prima facie case, Lockheed argues that the RIF and its
implementing criteria demonstrate that its decision to lay Mr. Finney off was based on a
nondiscriminatory reason: the RIF implemented in 2012. This is sufficient to meet its burden
under the second step of the McDonnell Douglas framework and, accordingly, the burden shifts
back to Mr. Finney to demonstrate why such reason is pretextual. See Piercy v. Maketa, 480 F.3d
1192, 1200 (10th Cir. 2007).
A plaintiff can demonstrate pretext by producing evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the employer’s proffered
reason that a reasonable trier of fact could rationally conclude that the proffered reason is untrue.
Plotke v. White, 405 F.3d 1092, 1102 (10th Cir. 2005). More specifically, in cases involving a
RIF, a plaintiff can demonstrate pretext by presenting evidence that (1) his termination does not
accord with the RIF criteria supposedly used, (2) his evaluation under the defendant’s RIF
criteria was deliberately falsified or manipulated to secure the plaintiff’s dismissal, or (3) the RIF
was generally pretextual. See Beaird, 145 F.3d at 1168. Here, Mr. Finney argues that Mr.
Halbrook deliberately falsified his 2011 PADR score and manipulated the RIF process in order
to ensure that Mr. Finney would be laid off.
With regard to the 2011 PADR score, the evidence shows that Mr. Halbrook gave him a
negative score after placing him on an inaccurate PIP that was later revised. There is also
evidence that Mr. Halbrook relied on other employees’ observations rather than his own. Viewed

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in the light most favorable to Mr. Finney, such evidence could show an erroneous 2011 PADR
score.
However, this evidence is insufficient to establish pretext for two reasons. First, in the
pretext context, “a plaintiff cannot prevail by merely challenging in general terms the accuracy
of a performance evaluation which the employer relied on in making an employment decision
without any additional evidence (over and above that of the prima facie case) of age
discrimination.” Young v. Cobe Labs., Inc., 141 F.3d 1187 (10th Cir. 1998). In other words, it is
not enough for Mr. Finney to show that his 2011 PADR was inaccurate, he must also show that
the supervisor responsible for assessing his performance—here, Mr. Halbrook—displayed agerelated animus toward him because of his age. See Beaird, 145 F.3d at 1168. Mr. Finney has
produced no evidence of this kind.
Second, when determining whether the proffered reason for a decision was pretextual, the
Court examines “the facts as they appear to the person making the decision, not the plaintiff’s
subjective evaluation of the situation.” Lobato v. New Mexico Environment Dept., 733 F.3d
1283, 1289 (10th Cir. 2013). The relevant inquiry is not whether the employer’s proffered
reasons were wise, fair, or correct, but whether it honestly believed those reasons and acted in
good faith upon those beliefs. Id. In other words, although Mr. Finney believes he was a good
performer, it is the decision-maker’s perception rather than Mr. Finney’s perception that is
relevant. See Pippin v. Burlington Res. Oil and Gas Co., 440 F.3d 1186, 1196-97 (10th Cir.
2006). Even if Mr. Halbrook erroneously relied on other employees’ observations or gave
credence to an inaccurate PIP, Mr. Finney’s claim fails unless he can show that Mr. Halbrook
believed that Mr. Finney was deserving of a higher performance score, but nevertheless chose to
give him a negative score because of age-related animus. Mr. Finney has not identified any

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evidence that would suggest either that Mr. Halbrook did not actually believe Mr. Finney
deserved a negative score on his 2011 PADR or that he harbored any particular age-related
animus.
Mr. Finney also argues that Mr. Halbrook deliberately manipulated the RIF process in
order to ensure that Mr. Finney would be laid off by (1) determining, in consultation with Mr.
Chang, that a Level 4 engineer would be selected for a RIF; and (2) sending an email to the
participants in the TDR session that influenced them to give Mr. Finney poor ratings.
Taking such evidence in the light most favorable to Mr. Finney it also is insufficient to
establish pretext. At most, they show that, because of Mr. Halbrook’s actions, the TDR
participants had the opportunity to manipulate the rankings of Level 4 engineers in a manner
unfavorable to Mr. Finney. However, opportunity for manipulation does not, by itself, establish
pretext. See Beaird, 145 F.3d at 1169. What is missing is evidence that there was manipulation
motivated by age-related animus. There is no evidence of age-related animus on the part of Mr.
Holbrook or any of the TDR participants. See id. at 1168. There is no evidence that any of the
TDR participants believed that Mr. Finney’s performance was the same as or better than other
level 4 engineers but rated him lower than others. Accordingly, the Court finds that Mr. Finney
has failed to show that Lockheed’s proffered nondiscriminatory reason for terminating Mr.
Finney was pretextual.
b. Hostile work environment
Mr. Finney also claims that he was subject to a hostile work environment in violation of
the ADEA. To prevail on a hostile environment claim, he must show that a rational jury could
find that the workplace was permeated with discriminatory intimidation, ridicule, and insult that
were sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment,

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and the harassment stemmed from age-related animus. See Mackenzie v. City and County of
Denver, 414 F.3d 1266, 1280 (10th Cir. 2005); Lanman v. Johnson Cnty., Kansas, 393 F.3d
1151, 1155 (10th Cir. 2004). To evaluate whether a working environment is sufficiently hostile
or abusive, the Court examines the totality of the circumstances, including the frequency of the
conduct, the severity of the conduct, whether the conduct was physically threatening or
humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with
the employee’s work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The
environment must be both subjectively and objectively hostile. Id. Additionally, the Supreme
Court has instructed that courts judging hostility should filter out complaints attacking the
ordinary tribulations of the workplace, such as the sporadic use of age-related jokes, and
occasional teasing, especially offhand comments and isolated incidents, “unless extremely
serious.” See Mackenzie, 414 F.3d at 1280.
Applying these principles, the Court concludes that the evidentiary record falls short of
showing age-related harassment. Most of Mr. Finney’s allegations of harassment relate to the
employment decisions made by Mr. Halbrook, such as placing him on performance improvement
plans and issuing a negative performance review. Even taken in the light most favorable to Mr.
Finney, there is no evidence that such decisions rise to the level of being severe or pervasive in
the work environment. Furthermore, there is no evidence that such decisions were the product of
age-related animus or were undertaken for the purpose of intimidation, ridicule, or insult.
Mr. Finney points to the conduct of Tim Linn, his former manager on the GRAIL project,
as “background evidence” to support his hostile environment claim. Mr. Finney states that Mr.
Linn referred to younger employees as “doctor” to show that they were more special to the
company than older employees such as Mr. Finney. After Mr. Finney reported this behavior, Mr.

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Linn would walk around Mr. Finney’s workspace “just to show snobbery” or would stomp past
Mr. Finney’s desk. In addition, Mr. Finney asserts that Mr. Linn would interrupt telephone calls
between Mr. Finney and various vendors and dominate those meetings for five to ten minutes at
a time. As offensive as such actions may have been, they are not relevant to Mr. Finney’s current
claim because Mr. Linn worked on an entirely different project than Mr. Halbrook, and they fall
short of demonstrating pervasive or severe harassment. See Mackenzie, 414 F.3d at 1280.
Accordingly, summary judgment is appropriate on Mr. Finney’s hostile work environment claim.
2. Retaliation
Mr. Finney’s second claim asserts that he suffered adverse employment actions in
retaliation for filing several Charges of Discrimination alleging age discrimination.
The ADEA forbids an employer from retaliating against an employee because he or she
“has opposed any practice made unlawful” by the statute, or because he or she “has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or
litigation” under the statute. 29 U.S.C. § 623(d). ADEA retaliation claims are also analyzed
under the McDonnell Douglas framework. See Piercy, 480 F.3d at 1198. To establish a prima
facie claim of retaliation a plaintiff must show: 1) he was engaged in opposition to ADEA
discrimination; 2) he was subjected to an adverse employment action; and 3) a causal connection
existed between the protected activity and the adverse employment action. See id.
For purposes of this motion there is no challenge as to the sufficiency of evidence for the first
two elements. However, Lockheed argues that Mr. Finney cannot present sufficient evidence to
establish a causal connection between his complaints and the decision to lay him off.
A plaintiff may rely solely on temporal proximity to establish the third element of a
prima facie claim “if the termination is very closely connected in time to the protected activity.”

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See Metlzer v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006)
(internal quotations omitted). In an email dated March 21, 2012, Mr. Finney complained about
“younger less experienced individuals” being selected instead of him for numerous positions and
stated that had “observed discrimination and retaliation actions . . . which have been reported to
the EEOC.” Mr. Finney states that two days after the email was sent the GPS-III managers and
supervisors held the differentiation ranking session (TDR) in which they had him “singled out
for termination.” Lockheed notified Mr. Finney that he was being laid off on April 12, 2012.
Taken in the light most favorable to Mr. Finney, the proximity of these events is sufficient to
establish a causal connection.
Again, Lockheed identifies a legitimate reason for Mr. Finney’s termination — the RIF.
The burden shifts back to Mr. Finney to demonstrate why the stated reasons are pretextual. See
Piercy, 480 F.3d at 1200. At this stage of the McDonnell Douglas analysis it is insufficient to
rely solely on temporal proximity between the complaints and the RIF decision. Medina v.
Income Support Div., New Mexico, 413 F.3d 1131, 1138 (10th Cir. 2005). In addition to
temporal proximity, Mr. Finney must present at least circumstantial evidence of retaliatory
motive. See Metzler, 464 F.3d 1164, 1172 (10th Cir. 2006).
Mr. Finney offers two items circumstantial evidence. First, he points to an email from
Mr. Halbrook to two mangers who participated in the TDR, in which Mr. Halbrook states that he
“would like to remove him from our team ASAP.” There are several difficulties in the
circumstantial inferences that can be drawn from this email relative to Mr. Finney’s pretext
argument. The email does not refer to any complaints made by Mr. Finney. Instead, it states that
Mr. Halbrook wants to remove Mr. Finney because “[h]is conduct is insubordinate and his
continued presence on [the team] is not fair to those who have performed well.” More

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importantly, however, this email was sent on Saturday March 24, 2012, the day after the TDR
session. Indeed, Mr. Chang’s response to Mr. Halbrook’s email that “[W]e did hold a TDR
session on Friday”, confirms that the TDR occurred before Mr. Halbrook’s email was sent and it
suggests that Mr. Halbrook was not present at the TDR. Even considering Mr. Halbrook’s email
most favorably to Mr. Finney, no circumstantial inference can be reasonably drawn that the TDR
rankings were the result of retaliatory motive.
Second, Mr. Finney points to the fact that he was rated “as bad or worse than every other
employee being evaluated in every category.” Mr. Finney does not elaborate on the significance
of this point, but the Court interprets the crux of Mr. Finney’s argument to be that the
consistency of these poor ratings implies that there was concerted effort by the participants in the
TDR session to ensure that Mr. Finney had the highest score. Again, assuming such to be the
case, there is no evidence that links the poor rankings to Mr. Finney’s prior complaints.
Accordingly, Mr. Finney has failed to present circumstantial evidence sufficient to create an
inference of pretext in the formulation of the TDR rankings.

.

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CONCLUSION
IT IS HEREBY ORDERED that the Defendant’s Motion for Summary Judgment (#29)
is GRANTED. The Clerk shall enter judgment in favor of the Defendant and against the Plaintiff
on all claims and close this case.
Dated this 24th day of March, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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