Tighe v. Bae Systems Technology Solutions & Services Inc.

Filing 49

MEMORANDUM. Signed by Chief Judge Catherine C. Blake on 4/19/2016. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

DR. DOUGLAS R. TIGHE

v.

BAE SYSTEMS TECHNOLOGY
SOLUTIONS & SERVICES INC., et al.

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Civil No. CCB-14-2719

MEMORANDUM
The plaintiff, Dr. Douglas R. Tighe, alleges the defendants, BAE Systems Technology
Solutions & Services Inc. (“TSS”) and BAE Systems, Inc. (“BSI”), discriminated against him in
violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621–34. In
particular, Dr. Tighe alleges the defendants did not hire him for senior-level positions at TSS and
BSI because of his age. Pending before the court is the defendants’ motion for summary
judgment. (Mot. Summ. J., ECF No. 43). The court finds oral argument unnecessary to resolve
the issues. See Local R. 105.6 (D. Md. 2014). For the reasons that follow, the defendants’
motion for summary judgment will be granted in part and denied in part.
BACKGROUND
Dr. Tighe was employed by BAE1 from 2004 until 2013. In 2009, Dr. Tighe relocated to
the United Kingdom for a temporary assignment with BAE Systems, plc. (Mot. Summ. J., Ex. 1,
Tighe Dep. 20:16–21:6, ECF No. 43-2). Originally a two-year rotation, Dr. Tighe’s assignment
was extended until July of 2013. Id. at 43:19–22.

“BAE” comprises many entities. BAE Systems, plc is a company based in the United Kingdom. BSI is
a United States subsidiary of BAE Systems, plc. TSS is a subsidiary of BSI. (Mem. Supp. Mot. Summ. J.
1, ECF No. 43-1).
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BAE does not guarantee employment upon return from overseas assignments. (Mot.
Summ. J., Ex. 9, Letter Dated May 20, 2009 at 3, ECF No. 43-10). Prior to his return from the
United Kingdom, Dr. Tighe applied for various jobs with BAE. (Tighe Dep. 49:17–21, ECF No.
43-2). Throughout this process, Dr. Tighe met and corresponded with Curtis Gray, BSI’s Senior
Vice President of Human Resources. Id. at 49:22–50:15, 264:16–265:7. Mr. Gray reached out to
senior BAE leadership and human resources personnel in an attempt to help Dr. Tighe obtain
suitable employment. (Mot. Summ. J., Ex. 2, Gray Dep. 40:7–41:16, ECF No. 43-3; Ex. 17,
Email Dated Oct. 27, 2011, ECF No. 43-18).
This case is about two positions for which Dr. Tighe applied and ultimately was not
selected: Vice President, Internal Audit at BSI (“the Audit Position”) and Vice President and
Deputy General Manager in the Support Solutions Sector (“S2”), a division of TSS (“the Deputy
Position”). Either position would have been a promotion for Dr. Tighe, who was 66 at the time
he was not selected for the Audit Position and 67 at the time he was not selected for the Deputy
Position. (Opp’n Mot. Summ. J. 1, ECF No. 47).
The Audit Position
The Audit Position was posted to BAE’s internal system on October 22, 2012. (Opp’n
Mot. Summ. J., Ex. 2, Email Dated October 22, 2012, ECF No. 47-1). It was a “24 month
rotational position” and a “senior leadership team” job that reported directly to the CEO of BSI.
(Opp’n Mot. Summ. J., Ex. 3, Vice President – Internal Audit Job Posting, ECF No. 47-1).
Thirteen BAE employees, including Dr. Tighe, applied for the position. (Opp’n Mot. Summ. J.,
Ex. 5, Defs.’ Answers Interrogs. 13–15, ECF No. 47-1). Nine applicants, including Dr. Tighe,
were selected for a first round of interviews with a hiring panel. Id. The hiring panel ultimately
declined to include Dr. Tighe in the “down-select,” a term the parties use to denote the process

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by which two finalists proceeded to a final interview with Linda Hudson, the CEO of BSI. The
two finalists, Debra Maxwell (age 45) and Nick Ruscio (age 38), were selected on January 4,
2013. (Gray Dep. 220:1–221:13, ECF No. 43-3; Defs.’ Answers Interrogs., ECF No. 47-1). Mr.
Gray informed Dr. Tighe by email that he was not included in the down-select:
We have concluded the down-select process for the Internal Audit role.
Unfortunately you were not selected to proceed in the process. You did a fine job
in the interview so there was no issues there. IF [sic] we were only filling the
Internal Audit role, I think you would have made the down-select. But, as you
know this is a developmental rotational assignment, so we have to fill this role
and factor in a view as to what the next role would be. We interviewed ten
qualified candidates from throughout the Inc business and had to differentiate
somehow – and future assignment potential was as [sic] tie breaking factor. I am
sorry this did not work and am happy to discuss it further.
(Opp’n Mot. Summ. J., Ex. 12, Email Dated January 7, 2013, ECF No. 47-2). Mr. Ruscio was
ultimately selected to fill the Audit Position. (Opp’n Mot. Summ. J., Ex. 31, Letter Dated
January 14, 2013, ECF No. 47-4).
Dr. Tighe and Mr. Gray subsequently met to discuss why he was not included in the
down select. (Opp’n Mot. Summ. J., Ex. 32, Meeting Notice, ECF No. 47-4). The parties do not
agree on what was said at that meeting. Dr. Tighe asserts that Mr. Gray stated “there were ten
qualified candidates and the tie-breaking factor was this lack of future potential.” He also reports
the following conversation:
Dr. Tighe: “[D]id I stay in the UK too long, was it an out of sight, out of mind
situation where people didn’t remember me and remember my qualifications?”
Mr. Gray: “[N]o, Doug, it’s really an out of sight, out of phase situation.”
(Tighe Dep. 123:15–22, ECF No. 43-2).
When later pressed to explain what he meant by the phrase “future assignment potential,”
Mr. Gray indicated the comment was in reference to the Audit Position being “a developmental
assignment . . . the reasonableness of the job leading to a known next job was, in fact, a tie
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breaking factor.” (Gray Dep. 234:10–22, ECF No. 43-3). That is, he claims Dr. Tighe provided
an unsatisfactory answer when asked to identify a next role for which the Audit Position would
prepare him, and this caused him to be excluded from the down-select. Id. at 171:19–172:15.
During the interview, Dr. Tighe purportedly responded with “a comprehensive answer,”
identifying “an executive level job in line management . . . that [he] would be interested in a
business unit lead . . . in any of the other three sectors . . . [or something] in the business
development area . . . [or an] engineering VP [role].” (Tighe Dep 77:17–80:14, ECF No. 43-2).
He “closed that part of the discussion by telling [Mr. Gray] that [he would] be willing at the end
of the two years [in the Audit Position] to take whatever company job best served the interests of
the company at that time.” Id.
Debra Maxwell, one of the finalists, answered that “she wanted to get into business
leadership like a business area leader or ultimately sector president. . . . [H]er answer . . . was one
of the business area leaders . . . like a VP, GM.” (Gray Dep. 174:10–14, ECF No. 43-3). Nick
Ruscio, the other finalist, answered “very specifically . . . [that he] wants to be on a path to either
sector level or [BSI] level financial leadership . . . either CFO [or] VP of finance for a sector.”
Id. 172:17–22.
The Deputy Position
The Deputy Position was a senior-level position reporting directly to Erin Moseley,
President of S2. The job opening was posted on April 10, 2013, (Opp’n Mot. Summ. J., Ex. 37,
Email Dated April 10, 2013, ECF No.47-4), and TSS received over 250 applications. (Mot.
Summ. J., Ex. 23, List of Applicants, ECF No. 43-24). Dr. Tighe initially was selected for an
interview; however, a panel never materialized and Dr. Tighe instead met with Ms. Moseley on
May 29, 2013, to discuss the Deputy Position. (Opp’n Mot. Summ. J., Ex. 35, Moseley Dep.

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28:22–32:6, ECF No. 47-4). During this conversation, Dr. Tighe mentioned that he could fill the
position for several years as he was not planning on retiring for five to seven years (he was 67 at
the time). Id. at 32:20–34:19. In response to these statements, Ms. Moseley purportedly
commented on the “short runway” Dr. Tighe had left at BAE. Id. Ms. Moseley indicated this
comment would have been in reference to Dr. Tighe’s future retirement, though she does not
necessarily believe five to seven years constitutes a “short runway.” Id.
After this conversation, Dr. Tighe had no further meetings or interviews regarding the
Deputy Position. In his correspondence with Michelle Murphy, Vice President of Human
Resources at TSS, Dr. Tighe was informed that TSS was not currently moving forward with
filling the Deputy Position and that it would consider him for an interview when the company
decided to move forward. (Opp’n Mot. Summ. J., Ex. 49, Email Dated June 19, 2013, ECF No.
47-5). As a result of not obtaining a suitable position with BAE, Dr. Tighe was terminated on or
about July 8, 2013, upon the expiration of his contract. (Opp’n Mot. Summ. J., Ex. 68, Email
Dated July 02, 2013, ECF No. 47-7).
Notwithstanding its representations to Dr. Tighe, TSS continued to review potential
candidates from within BAE, including Cheryl Labombard-Paradis. (Opp’n Mot. Summ. J., Ex.
81, Email Dated July 17, 2013, ECF No. 47-9). After having to reschedule, Ms. LabombardParadis was set to interview for the Deputy Position on July 30, 2013. (Opp’n Mot. Summ. J.,
Ex. 88, Email Dated July 23, 2013, ECF No. 47-9). On July 26, 2013, TSS’s Chief Counsel,
Douglas Coleman, received two letters from Dr. Tighe’s counsel informing him of potential legal
claims Dr. Tighe may have against BAE. (Opp’n Mot. Summ. J., Exs. 92, 93, Letters Dated July
25, 2013, ECF No. 47-10). Ms. Lombard-Paradis’s July 30 interview was subsequently
cancelled. In an email dated August 1, 2013, Ms. Murphy informed others involved in the hiring

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process that the Deputy Position had been put on hold while S2 worked on a reorganization plan.
(Mot. Summ. J., Ex. 35, Email Dated August 1, 2013, ECF No. 43-36). Ultimately, no one was
ever interviewed for the position. Instead, Brad Jacobs (age 56 at the time), the Chief Financial
Officer of BSI, was recruited to fill a Deputy Position at S2 with responsibilities significantly
greater than those advertised for the original Deputy Position. (Mot. Summ. J., Ex. 5, Jacobs
Dep. 15:1–17:8, ECF No. 43-6; Ex. 108, Email Dated November 6, 2013, ECF No. 47-11). Mr.
Jacobs reported that the S2’s “financial situation was worse than anticipated.” (Jacobs Dep.
32:14–20, ECF No. 43-6). Mr. Jacobs ultimately returned to BSI after S2 dissolved. Id. at 44:3–
13.
ANALYSIS
I.

Standard of Review
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted

“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(a) (emphases added). “A dispute is
genuine if ‘a reasonable jury could return a verdict for the nonmoving party.’” Libertarian Party
of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Dulaney v. Packaging Corp. of Am.,
673 F.3d 323, 330 (4th Cir. 2012)). “A fact is material if it ‘might affect the outcome of the suit
under the governing law.’” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). Accordingly, “the mere existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for summary judgment.” Anderson, 477
U.S. at 247–48. The court must view the evidence in the light most favorable to the nonmoving
party, Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam), and draw all reasonable
inferences in that party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (citations omitted); see

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also Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568-69 (4th Cir. 2015). At the
same time, the court must “prevent factually unsupported claims and defenses from proceeding
to trial.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 2003)).
II.

Audit Position
Under the ADEA, a plaintiff must “demonstrate that the employer engaged in disparate

treatment because of the employee's age and, accordingly, age must be the but-for cause of such
treatment.” EEOC v. Baltimore Cnty., 747 F.3d 267, 273 (4th Cir. 2014) (citing Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177–78 (2009)) (internal quotation marks omitted). There are two
methods by which a plaintiff can prove age was the but-for cause of an adverse employment
action: “either by direct evidence of discriminatory animus . . . or through the indirect burdenshifting proof scheme set forth in McDonnell Douglas Corp. v. Green,411 U.S. 792, 802 [ ]
(1973).” Sagar v. Oracle Corp., 914 F. Supp. 2d 688, 694 (D. Md. 2012) (citations omitted),
aff'd, 523 F. App'x 999 (4th Cir. 2013). Dr. Tighe has not produced direct evidence of
discrimination; however, he has made a sufficient showing under the McDonnell Douglas
framework for his Audit Position claim to survive summary judgment.
a. Direct Evidence
Direct evidence is evidence that, if believed, “would prove the existence of a fact . . .
without any inference or presumptions.” O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542,
548 (4th Cir. 1995) (internal quotation marks and citation omitted), rev'd on other grounds by
517 U.S. 308 (1996). “The evidence must ‘clearly indicate[ ] a discriminatory attitude at the
workplace and must illustrate a nexus between the negative attitude and the employment
action.’” Pilger v. D.M. Bowman, Inc., 833 F. Supp. 2d 489, 494 (D. Md. 2011) (quoting Hill v.

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Lockheed Martin Logistics Mgmt., Inc., 314 F.3d 657, 665 (4th Cir. 2003)), aff'd, 521 F. App'x
307 (4th Cir. 2013). Dr. Tighe contends two statements by Mr. Gray constitute direct evidence
of discrimination:2 (1) Mr. Gray’s email stating that Dr. Tighe was not included in the downselect because of “future assignment potential,” and (2) his later comment that Dr. Tighe was not
selected because he was “out of sight, out of phase.”
These are not the type of statements typically accepted by courts as constituting direct
evidence of discrimination. Standing alone, neither explicitly references Dr. Tighe’s age. Each
interview candidate was asked about possible future assignments. The phrase “future assignment
potential” could thus refer to either Dr. Tighe’s answer to that question or to his age.
Accordingly, the phrase is sufficiently ambiguous as to not constitute direct evidence of agebased discrimination. Similarly, assuming Mr. Gray said Dr. Tighe was “out of phase,” this
vague phrase (even in light of the comment on future assignment potential) would require a
factfinder to make presumptions and draw inferences before concluding Mr. Gray acted with
discriminatory intent. Accordingly, these statements are not direct evidence of discrimination,
and the court will proceed with the McDonnell Douglas analysis.
b. McDonnell Douglas Framework
Where, as in this case, there is no direct evidence of discrimination, a plaintiff may
proceed under the McDonnell Douglas framework. Under this framework, Dr. Tighe must first
make out a prima facie case of discrimination. If he succeeds, “he creates a presumption of
discrimination, and the burden of production shifts to the defendant to articulate a legitimate,
non-discriminatory reason for its adverse employment decision.” Laber v. Harvey, 438 F.3d 404,
430 (4th Cir. 2006). Once the defendant provides a reason, the presumption of discrimination
As an initial matter, the court—not the jury, as the plaintiff’s brief may imply—makes the legal
determination of whether certain evidence constitutes “direct evidence” of discrimination.
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vanishes, and the burden shifts back to the plaintiff to demonstrate that the given reason was a
pretext for unlawful discrimination. Id.
A plaintiff may establish a prima facie case by showing “that: (1) he was a member of a
protected class, i.e., that he was at least 40 years old; (2) his employer had an open position for
which he applied and was qualified; (3) he was rejected despite his qualifications; and (4) the
position remained open or was filled by a similarly qualified applicant who was substantially
younger than the plaintiff, whether within or outside the class protected by the ADEA.” Id. The
defendants concede that Dr. Tighe has established a prima facie case as to the Audit Position.
(Mem. Supp. Mot. Summ. J. 24, ECF No. 43-1).
The defendants have articulated legitimate nondiscriminatory reasons for not selecting
Dr. Tighe for the Audit Position. First, the two candidates included in the down-select, Mr.
Ruscio and Ms. Maxwell, provided more satisfactory and specific answers when asked to
identify what role(s) with BAE (s)he could assume after the Audit Position. Additionally, they
contend Mr. Ruscio ultimately was selected for the position because of his extensive financial
background and experience with BSI’s ethics department (which allowed him to incorporate that
department under his leadership once he assumed the Audit Position).
The burden thus shifts back to Dr. Tighe to show that the defendants’ legitimate
rationales were simply pretext masking their discriminatory intent. “To do so, the plaintiff must
do more than simply show the articulated reason is false; he must also show that the employer
discriminated against him on the basis of age. In some cases, however, proof that the employer's
reason is false is sufficient to show age discrimination when combined with the plaintiff's prima
facie case.” Laber, 438 F.3d at 430–31 (4th Cir. 2006) (citation omitted).

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There is sufficient evidence in the record to create a genuine dispute as to whether the
defendants’ proffered nondiscriminatory reasons for not selecting Dr. Tighe were false. For
example, a reasonable jury could conclude that Dr. Tighe’s answer to the interview question
about future assignments was comparable to Ms. Maxwell’s, such that his answer to the
interview question was not the true reason he was excluded from the down-select. Similarly, the
factfinder should determine the meaning of the phrases “future assignment potential” and “out of
phase” (if Mr. Gray is found to have said the latter). A reasonable jury could conclude either (1)
the comments reflect an impermissible assumption that because he was older, Dr. Tighe had less
potential to take on future assignments or (2) the phrase “future assignment potential” referenced
Dr. Tighe’s answer to the interview question. Accordingly, summary judgment is not
appropriate, and Dr. Tighe’s Audit Position claim may proceed to trial.
III.

Deputy Position
Dr. Tighe also claims the defendants violated the ADEA by not hiring him for the Deputy

Position. He argues direct evidence of discrimination should preclude summary judgment. In
the alternative, he seeks the same result under the McDonnell Douglas framework. Both
arguments fail, and the defendants’ motion for summary judgment will be granted as to the
Deputy Position.
a. Direct Evidence
Dr. Tighe has not produced direct evidence of discrimination. He alleges that he was
removed from consideration for the Deputy Position after a conversation with Ms. Moseley in
which she commented on Dr. Tighe’s “short runway” at BAE. 3 Ms. Moseley made the comment
in response to Dr. Tighe’s assertion that he planned to retire in five to seven years. Even if Ms.
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There appears to be a dispute as to whether Ms. Moseley actually made this comment. For the purposes
of ruling on the defendants’ summary judgment motion, the court assumes she did.

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Moseley were motivated by Dr. Tighe’s retirement plans, such a consideration would be
permissible because Dr. Tighe’s age and his retirement plans are analytically distinct. See Hazen
Paper Co. v. Biggins, 507 U.S. 604, 610–11 (1993) (“Because age and years of service are
analytically distinct, an employer can take account of one while ignoring the other, and thus it is
incorrect to say that a decision based on years of service is necessarily ‘age based.’”). “‘When
the employer's decision is wholly motivated by factors other than age, . . . [e]ven if the
motivating factor is correlated with age,’ that decision is not contrary to the ADEA.” Denio v.
Asplundh Tree Expert Co., No. 95-1904, 1996 WL 423125, at *3 (4th Cir. July 30, 1996)
(quoting Hazen, 507 U.S. at 611).4 Ms. Moseley was not impermissibly treating age as a proxy
and assuming Dr. Tighe would retire; rather, her comment was in response to Dr. Tighe’s direct
assertion that he would retire in five years. Cf. Hilde v. City of Eveleth, 777 F.3d 998, 1006 (8th
Cir. 2015) (“Using retirement eligibility to presuppose lowered productivity or dedication would
not ‘represent an accurate judgment about the employee’ unless evidence other than age
indicates that the employee would, in fact, retire.”). Ms. Moseley’s statement does not clearly
indicate impermissible consideration of Dr. Tighe’s age and is therefore not direct evidence of
discrimination.
b. McDonnell Douglas Framework
The parties dispute whether Dr. Tighe can establish a prima facie case of age
discrimination. In particular, the defendants claim Dr. Tighe was never rejected in regards to the
Deputy Position, and therefore the third factor of the prima facie test cannot be met.5 They posit

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Unpublished cases are cited only for the soundness of their reasoning, not for any precedential value.
As noted above, the third factor is whether “he was rejected despite his qualifications.” Laber, 438 F.3d
at 430 (4th Cir. 2006). The court refers to this as the “third factor” because it reflects the formulation the
Fourth Circuit articulated in an ADEA failure-to-hire case. See id. In other iterations of the McDonnell
Douglas framework, the rejection component is incorporated into the fourth factor. See Carter v. Ball, 33
F.3d 450, 458 (4th Cir. 1994) (“To prove a prima facie case of discriminatory refusal to promote
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the Deputy Position was never filled, and Mr. Jacobs filled a different position when he
transferred to TSS in November of 2013. Dr. Tighe claims Mr. Jacobs actually filled the same
Deputy Position for which he applied. Even accepting Dr. Tighe’s presentation of the facts, this
claim cannot survive summary judgment.
Although the evidence may suggest that Ms. Moseley intended to exclude Dr. Tighe from
the interview and selection process, that process never came to fruition. The record shows that
not a single applicant was interviewed for the Deputy Position. Instead, the position was filled
by the lateral hiring of Mr. Jacobs, who was specifically recruited from his post as CFO of BSI
and granted significant additional job responsibilities beyond those assigned to the original
Deputy Position. An applicant has not been rejected when the employer abandons completely
the hiring process and instead hand-picks someone outside of the applicant pool to fill the
position. See Hackney v. Perry, No. 97-2055, 1998 WL 801490, at *2 (4th Cir. Nov. 18, 1998)
(“Because the lateral transfer did not involve a promotion for [the person hired], competitive
selection was not required. Thus, [the plaintiff’s] application was not considered, and thus, he
was not rejected within the meaning of McDonnell Douglas.”). Dr. Tighe cannot establish a
prima facie case of discrimination.
Even assuming he could establish a prima facie case, Dr. Tighe has not shown that the
defendants’ proffered explanation for hiring Mr. Jacobs—namely, that S2 was in financial
distress and needed his expertise—was pretext. Dr. Tighe relies mainly on assumptions drawn
from the timing of his lawyer’s correspondence with TSS’s general counsel. The only other
evidence proffered to challenge the defendants’ explanation was that Mr. Jacobs was not initially

under [McDonnell Douglas], plaintiff must prove that (1) plaintiff is a member of a protected group; (2)
plaintiff applied for the position in question; (3) plaintiff was qualified for the position; and (4) plaintiff
was rejected for the position under circumstances giving rise to an inference of unlawful discrimination.”
(internal quotation marks and citation omitted)).

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informed of S2’s financial condition when he was first offered the job. This is insufficient to
show pretext, particularly considering that Mr. Jacobs reported already having knowledge of
S2’s financial situation through his role as BSI’s CFO and that S2’s financial condition ended up
being worse than he had anticipated. No reasonable jury could conclude based on the record
before the court that TSS declined to hire Dr. Tighe because of his age. Accordingly, the court
will grant the defendants’ motion for summary judgment as to the Deputy Position.
CONCLUSION
For the reasons discussed above, the defendants’ motion will be granted in part and
denied in part. Dr. Tighe may proceed to trial against BSI on his claim of age discrimination as
it pertains to the Audit Position, but judgment will be granted for TSS.

A separate order follows.

April 19, 2016
Date

/S/
Catherine C. Blake
United States District Judge

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