Seifaee v. Areva NP Inc.

Filing 65

Judge Richard G. Stearns: ORDER entered denying 44 Motion for Summary Judgment; denying 48 Motion for Summary Judgment (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-12621-RGS
FARROKH SEIFAEE
v.
AREVA, INC.
MEMORANDUM AND ORDER ON DEFENDANT AREVA’S MOTION FOR
SUMMARY JUDGMENT and PLAINTIFF FARROKH SEIFAEE’S CROSS
MOTION FOR PARTIAL SUMMARY JUDGMENT
STEARNS, J.

November 10, 2015

Dr. Farrokh Seifaee brought parallel federal and state causes of action
against his former employer, defendant AREVA, Inc., under the
Massachusetts Anti-Discrimination Law, Mass. Gen. Laws ch. 151B, and the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq.,
based on disparate treatment (Counts I, III, V, and VIII) and disparate
impact (Counts II, IV, VI and VIII). Seifaee alleges that he was terminated
during a workplace reduction in force (RIF) because of his age. Seifaee now
seeks partial summary judgment on his disparate-impact claims, while
AREVA seeks summary judgment on all counts.
BACKGROUND

Seifaee, a licensed professional engineer, had been employed by
AREVA or its corporate predecessors as an at-will employee for twenty-five
years as of his termination on October 15, 2013. When discharged by
AREVA, Seifaee was 61 years old. During his career, Seifaee served AREVA
in the roles of Senior Engineer, Principal Engineer, and Advisory Engineer.
While at AREVA, Seifaee worked in the Safety Analysis, Probabilistic
Risk Assessment, and Severe Accidents groups. At the time he was laid off,
Seifaee was an Advisory Engineer within AREVA’s “Risk Informed
Engineering and Severe Accidents” department (RIESA).
immediate supervisor was Ogden Sawyer.

Seifaee’s

Sawyer reported to Mark

Rutherford, the manager of RIESA. Rutherford, in turn reported to Bret
Boman, the head of the Nuclear Analysis Department (of which RIESA was
a part).
Seifaee’s evaluations record a history of satisfactory job performance.
Seifaee received a score of 4 out of 5 (met all expectations and exceeded
some) on his Professional Development Appraisal (PDA) for 2011, and a
score of 3 out of 5 (met all expectations) on his 2012 PDA. Seifaee and his
work teams won two CORE Awards (internal awards recognizing good
performance) between 2012 and 2013. Seifaee’s supervisors, Sawyer and
Rutherford, variously characterized his job performance as “good,” and
2

“middle tier” but not a “rock star.” Sawyer Dep. at 41; Rutherford Dep. at
111. One of Seifaee’s previous supervisors, Virgilio Esquillo, had a more
negative view of Seifaee’s performance, complaining on one occasion that “it
became obvious that [Seifaee] would not be able to complete [a project], and
I took it on myself to see it done,” because Seifaee “did not demonstrate the
necessary intellectual horsepower to solve the problem.” Def. Mem. at 3.1
In 2011, AREVA suffered severe business reverses, losing multiple
nuclear reactor projects. 2011 was the first of four successive years of net
financial losses, which precipitated multiple RIFs. By mid-2013, Seifaee’s
group had lost two major projects and most of its funding, and by July of
2013 had virtually nothing to do. What little work remained was seismicrelated, while Seifaee’s principal expertise was in thermal hydraulics. Seifaee
was also omitted from multiple emails sent to other members of his group
offering work on new projects. It is undisputed that the loss of business
impacted all employees in Seifaee’s group.
In July of 2013, facing a continuing dearth of work, AREVA began to
encourage employees to take vacation time whenever possible. In May of
2013, Seifaee had scheduled a three-week vacation, which he took from

In his deposition, Boman questioned the accuracy of Esquillo’s
comments about Seifaee’s performance on the project in question.
1

3

August 5, 2013 to August 23, 2013. AREVA maintains that the length of
Seifaee’s vacation made it difficult for supervisors to assign him billable
work, despite the new vacation policy.
By September 23, 2013, AREVA had decided on another RIF. AREVA
issued criteria for department heads (including Boman) to consider in
deciding who was to be laid off, including business needs, the current and
past evaluations of each employee, and the employee’s critical or unique
skills. Boman (and other department heads) were to rate each employee on
a scale from 1 to 10, and preserve written documentation supporting their
evaluation (including past and current PDAs).
Boman gave Seifaee a “performance” rating of 2.7 (out of 10) and a
“unique skills” evaluation of 2.0 (also out of 10). Boman recorded the
evaluations on a “RIF Rating Form.” Boman considered only Seifaee’s 2012
PDA, rather than his two most recent PDAs as AREVA’s criteria had
recommended. Boman’s evaluation also included the notation “[c]ame with
PWR experience (Diablo Canyon),” although Seifaee in fact had done no
work at Diablo Canyon.
Boman testified that he relied on contributions from section managers,
including Rutherford, in making his RIF rankings, but that he made no
“extra attempts” to gather information about an engineer’s skills or
4

experience, nor did he “review any documentation” regarding the engineer’s
unique abilities. Boman Dep. at 40-42. Boman also testified that he did not
speak with Sawyer, who was Seifaee’s direct supervisor.

According to

Boman, Rutherford ranked Seifaee “in the last position that he had,”
although Rutherford later testified that he was not “actively involved” in
evaluating Seifaee, but that he considered Seifaee to be a “middle-tier”
performer.

Boman also testified that when he consulted Rutherford

regarding Seifaee’s 2012 PDA rating, Seifaee had been working under
Rutherford’s direction for less than a month. Sawyer, for his part, expressed
“surprise” that Seifaee was terminated, and testified that Rutherford
appeared upset that Seifaee had been laid off.
Boman ultimately ranked Seifaee 130th of the 136 employees eligible
for the RIF. Based on Boman’s ratings, AREVA ultimately terminated 14
employees, including Seifaee. All 14 were over the age of 55, while 12 of 14
were over the age of 60. Boman explained to Sawyer that AREVA had
considered the skill sets of employees across the company, had compared
them to the projected business demands, and had terminated the employees
whose skills were deemed redundant.

5

Seifaee originally filed this Complaint in the Middlesex County
Superior Court on May 12, 2014. On June 24, 2014, AREVA removed the
case to this court on federal question grounds. Discovery is now complete.
DISCUSSION
Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(c). Summary judgment will not be granted 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 moving party
bears the initial burden of establishing that no genuine issue of material fact
exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once that burden
has been carried, the nonmovant must show more than a “metaphysical
doubt” as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986), and more than a “mere . . . scintilla” of
evidence. Anderson, 477 U.S. at 248.
In employment discrimination cases, the First Circuit is generally of
the view that the issue of an employer’s intent or motive is for the jury. See
Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015);
6

Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir. 1996). However,
if the nonmoving party rests solely upon “conclusory allegations, improbable
inferences, and unsupported speculation,” summary judgment may be
appropriate even where “elusive concepts such as motive and intent” are in
dispute. Smith v. Stratus Computer, Inc., 40 F.3d 11, 13 (1st Cir. 1994)
(internal citations and quotation marks omitted).
Disparate Treatment
Seifaee acknowledges that he has no direct evidence of age
discrimination on AREVA’s part. The court will therefore analyze his claims
under the three-pronged, burden-shifting formula of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). The first prong requires Seifaee to
demonstrate a prima facie case of discrimination. The elements of a prima
facie case of age discrimination require a showing that 1) Seifaee was a
member of a protected class; 2) that Seifaee experienced an adverse
employment action; 3) that his job responsibilities were assumed by another
person, demonstrating the employer’s continuing need for the his skills; and
4) that Seifaee was qualified for his position and performing well enough to
rule out termination for inadequate job performance. Keisling v. SER-Jobs
for Progress, Inc., 19 F.3d 755, 760 (1st Cir. 1993). In the case of a RIF,
however, Seifaee may satisfy the third element by demonstrating that “the
7

employer did not treat age neutrally or that younger persons were retained
in the same position.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 842 (1st
Cir. 1993); see also Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113,
1117 (1st Cir. 1993).
It is undisputed that Seifaee, at 61, was a member of a protected class,
and that his termination was an adverse employment action.2

As to the

fourth element, AREVA also acknowledges that Seifaee was at least an
adequate, if not a spectacular performer, and qualified to perform the
essential functions of his job.

Finally, Seifaee’s evidence that younger

employees were retained in similar positions is undisputed.
The prima facie case for discrimination having been satisfied, the
burden shifts to AREVA to produce a legitimate non-discriminatory reason
for Seifaee’s termination. McDonnell Douglas, 411 U.S. at 802-803. The
burden is one of production rather than persuasion: AREVA’s reason or
reasons need not be well-reasoned or even rational, they need only be
nondiscriminatory.

AREVA ascribes Seifaee’s termination to the losses

Seifaee also alleges that the reduction in the number of his billable
hours should be counted as an adverse employment action, and that he was
“forced to take vacation” while younger employees received billable work.
This claim, however, is difficult to square with his acknowledgement that all
of the employees in his unit felt the impact of AREVA’s financial setback, and
with the fact that Seifaee scheduled his three-week vacation prior to AREVA
adopting the new vacation policy.
2

8

suffered by its parent company, AREVA SA, which in turn led to work
shortages and a series of RIFs, including the 2013 RIF of which Seifaee was
a casualty. According to AREVA, the loss of work acutely impacted Seifaee’s
group causing it to shift focus from thermal hydraulics (Seifaee’s area of
expertise) to seismic-related work (in which Seifaee had little experience).
AREVA’s nondiscriminatory explanation of the RIF shifts the burden
back to Seifaee to demonstrate that AREVA’s proffered reasons are merely a
pretext for age discrimination. Id. at 804. Seifaee in this regard relies
principally on the opinion of his statistical expert, Dr. Craig Moore, that the
data provided “clearly supports a claim of age bias.” Pl. Ex. F at 9. Seifaee
notes that all fourteen of the employees terminated as part of the RIF were
over the age of 55, and that twelve of the fourteen were over the age of 60.
“Valid statistical evidence may play a helpful role even in disparate treatment
cases . . . if it tends to prove the discriminatory intent of the decision makers
involved.” Hillstrom v. Best W. TLC Hotel, 354 F.3d 27, 32 (1st Cir. 2003).3
In addition to the statistical evidence, Seifaee contends that his reviews
do not support his placement near the bottom of the RIF rankings, and
points to Sawyer and Rutherford’s relatively favorable assessments of his

AREVA submits the affidavit of its own expert, Christopher Erath, to
rebut Moore’s conclusions.
3

9

work. He also identifies two similarly situated younger employees in his
group, who were retained by AREVA despite having been the subject of
multiple performance complaints (Nissia Sabri)4 or who had fewer unique
skills and less experience (Amanda Finkes). See Koster v. Trans World
Airlines, Inc., 181 F.3d 24, 32 (1st Cir. 1999).
Seifaee finally criticizes Boman’s RIF evaluation as arbitrary and
inconsistent with AREVA’s purported RIF-ranking criteria. Boman, for
example, considered only Seifaee’s most recent PDA instead of the two called
for by the protocol. Boman also failed to consult Sawyer, Seifaee’s direct
supervisor, as the criteria required, and listed incorrect information
regarding Seifaee’s nonexistent “PWR experience (Diablo Canyon)” on the
RIF form.
AREVA, of course, offers a number of nondiscriminatory explanations
for Seifaee’s termination: that his performance, although adequate, did not
measure up to the others in his group; that his skills did not match the
company’s foreseeable business needs; that its RIF-ranking method was
based on objective criteria, and so on. At the end of the day, however, the

The evidence regarding Sabri is not altogether consistent.
Supervisors on the one hand cited Nissia Sabri, as a “rock star,” and an
“excellent young engineer,” while also noting complaints about her
performance in 2013.
4

10

mere fact alone that a supposedly objective process could look across a
company at 136 employees and happen by chance to select an entire cohort
of persons aged 55 or older for termination, while possible, seems
statistically improbable (as Seifaee’s expert contends) and that alone might
justify a verdict in Seifaee’s favor. See Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (a plaintiff may point to
“weaknesses,

implausibilities,

inconsistencies,

incoherencies,

or

contradictions in the employer's proffered legitimate reasons” for
termination as conclusive evidence of pretext). The credibility of Seifaee’s
statistical evidence is a question for the jury.
Disparate Impact
Counts II and VI of Seifaee’s Amended Complaint allege age
discrimination under state and federal law based upon a theory of disparate
impact. “‘[D]isparate impact’ [claims] involve employment practices that are
facially neutral in their treatment of different groups but that in fact fall more
harshly on one group than another and cannot be justified by business
necessity.” Hazen Paper Co. v. Biggins, 507 U.S. 604, 609 (1993), quoting
Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335-336 n.15 (1977)
(internal quotation marks omitted). A disparate impact claim by definition

11

does not require proof of a discriminatory motive. Prescott v. Higgins, 538
F.3d 32, 41 (1st Cir. 2008).
An employer may rebut a prima facie case of disparate impact under
Title VII by showing that its use of a challenged practice is job related and
consistent with business necessity. Jones v. City of Boston, 752 F.3d 38, 53
(1st Cir. 2014). This is not the route that AREVA has chosen to follow.
Rather, it relies on the argument that age-related disparate impact claims are
not actionable under Massachusetts Chapter 151B. In support, it cites a First
Circuit decision, Mullin v. Raytheon Co., 164 F.3d 696, 705-706 (1st Cir.
1999), which rejected a plaintiff’s claims under federal and state law for age
discrimination based on a disparate-impact theory.
In Mullin, the First Circuit offered the prediction that “the SJC likely
will look to [its and other] federal courts’ interpretation of the ADEA and
hold that an age discrimination claim cannot be grounded solely on a theory
of disparate impact.” Id. at 706. It turned out that the First Circuit was
wrong in its fundamental premise. In Smith v. City of Jackson, 544 U.S. 228,
243 (2005), the Supreme Court overruled Mullin and like cases holding that
claims based on a disparate-impact theory are available under the ADEA. As
the Massachusetts Appeals Court has since followed Smith’s lead, see Porio
v. Dep’t of Revenue, 80 Mass. App. Ct. 57, 69-70 (2011) (reversing the trial
12

court’s dismissal of age-related disparate-impact claim), I have no reason to
believe that the SJC would do differently.
Seifaee relies upon the same evidence for his disparate-impact claims
as he does for his disparate-treatment claims. The proffered statistical
evidence upon which Seifaee relies is even more probative in a disparate
impact than in a disparate-treatment context. See LeBlanc, 6 F.3d at 848.
There is, therefore, a case for the jury on this claim.5
Unlawful Interference (Counts III, IV, VII and VIII)
AREVA acknowledges in its motion for summary judgment that
Seifaee’s unlawful interference claims are “derivative of [his] discrimination
claims.” Def. Mem. at 29. AREVA maintains that since Seifaee has failed to
establish either disparate treatment or disparate impact, his unlawfulinterference claims should therefore be dismissed as well. Since the court

AREVA’s affirmative defense to the federal and state disparateimpact claims – that it applied reasonable factors other than age (RFOA) in
conducting the RIF – may be plausible, but almost by definition, plausibility
is a matter for the jury to decide. See Disparate Impact and Reasonable
Factors Other Than Age Under the Age Discrimination in Employment Act,
77 Fed. Reg. 19080, 19082 n.16 (March 30, 2012) (codified at 29 CFR pt.
1625) (“The determination of whether an employer establishes a ‘reasonable
factors other than age’ defense is a jury question.”). The same logic applies
in AREVA’s favor when considering Seifaee’s motion for partial summary
judgment. Where both parties have submitted evidence which could
plausibly support a jury verdict, summary judgment is not appropriate for
either party.
5

13

finds genuine issues of material fact with regard to Seifaee’s discrimination
claims, however, AREVA’s argument that the unlawful interference claims
should also be dismissed is similarly unavailing.
CONCLUSION
For the foregoing reasons, AREVA’s motion for summary judgment on
all counts is DENIED, and Seifaee’s motion for partial summary judgment
on Counts II and VI of his complaint is also DENIED. The clerk shall set a
date for a jury trial.
SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE

14

15