Jones v. Shinseki

Filing 65

MEMORANDUM. An appropriate Order shall be entered. Signed by District Judge Kevin H. Sharp on 7/26/11. (tmw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RICHARD JONES,
Plaintiff,
v.
ERIC SHINSEKI, Secretary, U.S.
Department of Veterans Affairs,
Defendant.

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No. 3:09-cv-0688

JUDGE SHARP
MAGISTRATE JUDGE GRIFFIN

MEMORANDUM
Defendant Secretary of the Department of Veterans Affairs (“Defendant”) filed a Motion
for Summary Judgment (Docket Entry No. 35), to which Plaintiff Richard Jones (“Plaintiff”)
filed a response (Docket Entry No. 47), and Defendant filed a reply (Docket Entry No. 55).
Defendant has also moved for leave to file a brief in support of his motion in excess of the page
limit set forth in Local Rule 7.01(a) (Docket Entry No. 36), and Plaintiff has not responded. The
Court will grant the motion for leave to file excess pages. For the reasons discussed herein, the
Court will also grant Defendant’s motion for summary judgment, and this case will be dismissed.
FACTS
On March 2, 2008, Plaintiff began working as the Assistant Logistics Manager at the
Alvin C. York Veterans Affairs Medical Center (“York VA”) in Murfreesboro.1 Plaintiff was
56 years old at the time of hire and the first employee to fill this new position. Plaintiff
was appointed subject to a one-year probationary period, during which time Defendant had
1

Unless otherwise noted, the facts are drawn from the parties’ statements of material facts
(Docket Entry Nos. 42 and 50) and related declarations and exhibits. Although facts are drawn
from submissions made by both parties, on a motion for summary judgment, all inferences are
drawn in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v.
ZenithRadio Corp., 475 U.S 574, 586 (1986); McLean v. 988011 Ontario, Ltd., 224 F.3d 797,
800 (6th Cir. 2000).
1

the power to “unilaterally terminate [his] agreement based solely on the management
needs of the system.” (Docket Entry No. 37-1, Exhibit 7, at 40.)2 Past the one-year
probationary period, however, Defendant would have to put Plaintiff on a performance
improvement plan and impose several layers of progressive discipline before dismissing
Plaintiff.
Vincent Reed (“Reed”) hired Plaintiff and served as Plaintiff’s second-line
supervisor throughout his employment with Defendant. When Plaintiff began the position,
his immediate supervisor was Tona Braithwaite (“Braithwaite”).

Reed testified that

Braithwaite was not happy with Plaintiff’s performance from the beginning.

(Docket

Entry No. 36-6, Exhibit 3, at 23-24.)
Plaintiff testified that, in June 2008, he was attending a staff meeting at
Braithwaite’s home. Plaintiff overheard Braithwaite say to other employees that “she
wished she hadn’t hired someone that just came here to retire.” (Docket Entry No. 36-3,
Exhibit 1, at 51:21-23.) Plaintiff testified that Braithwaite was looking at him when she
made this statement, so he believed that Braithwaite was speaking of him.
Larry Henderson (“Henderson”), an inventory management specialist at the York
VA, testified that, in the spring or summer of 2008, he overheard Braithwaite tell someone
else, “We need to get rid of these old farts and bring some new blood in.” (Docket Entry
No. 37-8, Exhibit 14, at 11:17-19.) He did not know whom Braithwaite was speaking with
or whom she intended to include in her remark.
By the summer of 2008, Reed became concerned that Plaintiff did not understand
his job responsibilities. Therefore, Reed arranged for Plaintiff to spend a week at the VA
2

See also Docket Entry No. 1 (Complaint) ¶ 12 (alleging that Defendant could terminate
Plaintiff without cause during the one-year probationary period, but only with cause
thereafter).
2

hospital in Louisville, Kentucky in August observing the operations there. The Louisville
staff uniformly concluded that Plaintiff did not believe the week of observation was
necessary, as Plaintiff was not interested in their operations and preferred to talk about his
past leadership positions. Upon Plaintiff’s return from Louisville, Braithwaite remained
concerned that Plaintiff did not interact enough with the various departments under his
supervision. Therefore, she attempted to have Plaintiff work alongside his employees in
order to understand their responsibilities better, but Plaintiff was not consistent in his
shadowing duties.
In September 2008, Plaintiff’s supervisors discovered that Craig Mooneyham
(“Mooneyham”), an employee in the Inventory Management Section under Plaintiff’s
supervision, was working an exceptional amount of overtime because his workload was
increasing and he did not have enough help.

Plaintiff had not been aware that the

overtime was occurring. Higher-level supervisors were concerned that Plaintiff was not
familiar with the underlying issues within the section that caused Mooneyham to work the
overtime and with the budgetary implications of employees working extensive amounts of
overtime. (Docket Entry No. 36-9, Exhibit 4, at 84:23—85:7.)
Shortly before her promotion to an out-of-state facility, Braithwaite rated Plaintiff
“Fully Successful” on his annual performance evaluation in October 2008. (Docket Entry
No. 37-2, Exhibit 8.) Braithwaite testified that, if she had not been preparing to take
another position, she instead would have extended the rating period three months and
placed Plaintiff on a performance improvement plan. (Docket Entry No. 36-5, Exhibit 2,
at 60:4-9.) To show her dissatisfaction with Plaintiff’s performance, Braithwaite added
narrative comments concerning the importance of Plaintiff’s “tak[ing] a stronger
leadership role” to succeed in the position.
3

Trey Childress (“Childress”) became Plaintiff’s immediate supervisor after
Braithwaite departed. According to Plaintiff’s testimony, Childress told him not to worry
about a “Fully Satisfactory” rating because Plaintiff’s rating would “have to be a lot
worse” to lose his job at the end of the probationary period. (Docket Entry No. 36-4,
Exhibit 1, at 108:7-10.) Childress testified that he could not reduce Plaintiff’s “Fully
Satisfactory” rating because that reduction would have first required placing Plaintiff on a
performance improvement plan. (Docket Entry No. 36-8, Exhibit 4, at 43:22—44:4.)3
Shortly after Plaintiff signed off on his performance evaluation, Reed and Childress
met with Plaintiff regarding Plaintiff’s transition in supervisors.

Reed and Childress

acknowledged that Plaintiff attributed his performance-related problems to that point on
Braithwaite’s management style. Therefore, Reed informed Plaintiff that he was starting
from a “clean slate.” (Docket Entry No. 36-5, Exhibit 3, at 23:3.) Reed also told Plaintiff
that, if things did not improve, he would be let go at the end of the probationary period.
(Id. at 41:21-23.) Plaintiff testified that, by the end of this meeting, “there was no doubt
that [Plaintiff] had some improvements to make.” (Docket Entry No. 36-4, Exhibit 1, at
116:14-17.) Furthermore, Plaintiff pledged to Reed and Childress that he would resign at
the end of the probationary period if he did not feel that he was doing a good job. (Id. at
117:12-19.)
Despite the events at this meeting, Plaintiff continued to have performance-related
issues for the remainder of his probationary period. When he began the position, his
supervisors had informed him about a particular subordinate who had given all her
3

Childress’s testimony appears to be factually incorrect. According to the testimony of two
human resources specialists, probationary employees do not need to be placed on a
performance improvement plan before they can receive a rating below “Fully
Satisfactory.”
4

employees “outstanding” performance ratings the prior year. Plaintiff was instructed not
to let this situation happen again. Nonetheless, under Plaintiff’s supervision, the same
subordinate again awarded “outstanding” ratings to all her employees at the end of 2008.
Supervisors above Plaintiff ultimately disapproved of such high ratings across the board,
but some ratings had to be changed back to “outstanding” after certain employees filed
union grievances. During the process, some evaluations came up missing, and there were
allegations in Plaintiff’s office that other evaluations had been forged.
In January 2009, the York VA facility was installing sterilization equipment in the
Sterile Process and Distribution (“SPD”) decontamination room. After being alerted by
Kenyon Dupre (“Dupre”), the Supervisory General Engineer, that Plaintiff did not seem
engaged, Reed asked Plaintiff to provide a time line for the installation. Finally receiving
the timeline after multiple requests, Reed decided to re-do it because he did not believe
that Plaintiff had prepared it accurately. On this project Dupre described Plaintiff as
“lost” and “not engaged in the operations of the medical center” and said that Plaintiff
“only reacts and doesn’t lead.” (Docket Entry No. 38-4, Exhibit 21.) After a briefing to
the network director concerning the same project, Jim Hayes (“Hayes”), Chief Financial
Officer, contacted Reed because Plaintiff had provided some incorrect numbers for the
presentation without first checking with Hayes. (Docket Entry No. 36-7, Exhibit 3, at
65:2-12.)
During the same time period, an incident involving the improper use of a piece of
tubing in the York VA’s endoscopy lab prompted a national alert and a visit from an
inspection team. Childress had to contact Plaintiff the day before the team arrived about
cleaning up some boxes that should have been removed well beforehand. Reed concluded

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that Plaintiff was “not engaged” in the aftermath of the incident and mismanaged the
resistance from clinical staff regarding the implementation of new procedures.
On February 14, 2009, Paul Johnson (“Johnson”) became Plaintiff’s immediate
supervisor.

When Reed asked about the prospect of terminating Plaintiff, Johnson

responded, “if he’s a problem employee, deal with him now.” (Docket Entry No. 38-5,
Exhibit 22, at 11:13-14.)
In late February 2009, as the end of Plaintiff’s probationary period neared, Reed
and Childress consulted with John Henderson of the York VA’s human resources
department. John Henderson testified that Defendant could remove Plaintiff’s supervisory
authority and retain him in federal service or terminate Plaintiff from federal employment
altogether. (Docket Entry No. 38-9, Exhibit 26, at 6:16-18.) In making his decision, Reed
consulted Plaintiff’s supervisors and lead customers and determined that none of them
recommended Plaintiff’s retention. Therefore, Reed decided to terminate Plaintiff and had
John Henderson prepare the termination letter, which stated that, during the probationary
period, Plaintiff had “not demonstrated the capacity to effectively manage [his] area of
responsibility or supervise [his] subordinate staff.” (Docket Entry No. 38-10, Exhibit 27.)
On February 27, 2009, Reed prepared a “Memorandum for Record” documenting
the decision not to keep Plaintiff beyond the probationary period (“Memorandum”).
(Docket Entry No. 38-1, Exhibit 18.) The Memorandum describes the concerns about the
logistics at the York VA facility that Plaintiff learned about when he began the position.
It also mentioned the “counseling sessions” conducted during the course of the
probationary period when Plaintiff did not handle these concerns adequately, including the
October 23, 2008 meeting with Reed and Childress.

The Memorandum presented

concerns about Plaintiff’s tendency to convey decisions from upper management in a way
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that made clear they were not his decisions and he was following the decisions of others.
Finally, the Memorandum lists the supervisors and lead customers from whom Reed
collected feedback leading up to the end of the probationary period and describes this
feedback as “universally g[iving] a ‘no confidence’ vote.” Ultimately, the Memorandum
concludes that “it would be very difficult” to justify retaining Plaintiff after the
probationary period.
Later in the day on February 27, Reed and Childress informed Plaintiff of the
termination decision. Toward the end of that meeting, Plaintiff testified that Reed said,
“We have to terminate you now or let you retire.” (Docket Entry No. 36-4, Exhibit 1, at
142:11-12.) At that point, Plaintiff refused to sign the termination letter and walked out.
Plaintiff’s subsequent attempt to resign his position fell through because Plaintiff refused
to forego appeals of his termination in exchange for the resignation. Plaintiff was 57
years old at the time of termination.
Danny Moss (“Moss”), then the Assistant Chief of Logistics at the VA hospital in
Nashville, began covering the duties of Plaintiff’s position in Murfreesboro in addition to
the duties of his position in Nashville.

Defendant tried to fill Plaintiff’s position

competitively from the outside but was not successful. Ultimately, Moss was permanently
transferred to Murfreesboro on December 22, 2009 to fill Plaintiff’s former position at the
York VA, which he effectively assumed on February 28, 2010. Mooneyham applied and
was selected for the position Moss had held at the Nashville VA. At the time of these
decisions, Moss was 44, and Mooneyham was 39.
ANALYSIS
Plaintiff, a 57-year-old adult at the time of termination, asserts a single claim of age
discrimination in violation of the Age Discrimination in Employment Act of 1967, as amended,
7

29 U.S.C. § 621 et seq. He alleges Defendant discriminated against him on the basis of age by
terminating his employment. Defendant has moved for summary judgment on that claim.
I.

Summary Judgment Standard
A party may obtain summary judgment if the evidence establishes there are not any

genuine issues of material fact for trial and the moving party is entitled to judgment as a matter
of law. See Fed. R. Civ. P. 56(c); Covington v. Knox Cnty. Sch. Sys., 205 F.3d 912, 914 (6th Cir.
2000). The moving party bears the initial burden of satisfying the court that the standards of
Rule 56 have been met. See Martin v. Kelley, 803 F.2d 236, 239 n.4 (6th Cir. 1986). The
ultimate question to be addressed is whether there exists any genuine issue of material fact that is
disputed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Covington, 205 F.3d at
914 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). If so, summary judgment is
inappropriate.
To defeat a properly supported motion for summary judgment, the nonmoving party must
set forth specific facts showing that there is a genuine issue of material fact for trial. If the party
does not so respond, summary judgment will be entered if appropriate. Fed. R. Civ. P. 56(e).
The nonmoving party’s burden of providing specific facts demonstrating that there remains a
genuine issue of material fact for trial is triggered once the moving party shows an absence of
evidence to support the nonmoving party’s case. Celotex, 477 U.S. at 325. A genuine issue
exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court must
construe the evidence in the light most favorable to the nonmoving party, drawing all justifiable
inferences in its favor. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).

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II.

Age Discrimination in Employment Act Claim
Under the Age Discrimination in Employment Act (“ADEA”), it is unlawful for an

employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate
against any individual with respect to his . . . employment” based on age. 29 U.S.C.A. §
623(a)(1) (2008).

To establish the employer’s liability, the employee must prove by a

preponderance of the evidence that age is the but-for cause of the employer’s decision. Gross v.
FBL Fin. Servs., Inc., ___ U.S. ___, 129 S. Ct. 2343, 2351 (2009); Geiger v. Tower Auto., 579
F.3d 614, 620 (6th Cir. 2009). An employee may establish an age discrimination case by direct
or circumstantial evidence. Id. Here, Plaintiff attempts to resist summary judgment by alleging
the record presents evidence of both types to create a genuine issue of material fact for trial. The
Court considers each type of evidence in turn.
1.

Direct Evidence

Direct evidence of discrimination “‘requires the conclusion that unlawful discrimination
was at least a motivating factor in the employer’s actions.’” Geiger, 579 F.3d at 620 (quoting
Wexler v. White’s Fine Furniture, Inc., 317 F.3d 564, 570 (6th Cir. 2003)). In evaluating
whether age-related statements show bias, the Sixth Circuit has directed courts to consider “‘(1)
whether the statements were made by a decision-maker or by an agent within the scope of his
employment; (2) whether the statements were related to the decision-making process; (3)
whether the statements were more than merely vague, ambiguous or isolated remarks; and (4)
whether they were made proximate in time to the act of termination.’” Morgan v. N.Y. Life Ins.
Co., 559 F.3d 425, 432 (6th Cir. 2009) (quoting Peters v. Lincoln Elec. Co., 285 F.3d 456, 478
(6th Cir. 2002)).

Here, Plaintiff cites as direct evidence Braithwaite’s statements that she

“wished she hadn’t hired someone who just came [to the VA] to retire” and that “we need to get

9

rid of these old farts and bring some new blood in” and Reed’s statement, allegedly made at the
time of Plaintiff’s discharge, that “we have to terminate you now or let you retire.”
These statements do not qualify as direct evidence of discrimination. Braithwaite’s
statements were not made in relation to the decision to terminate Plaintiff, nor was Braithwaite a
decision-maker in the termination to begin with. See Rowan v. Lockheed Martin Energy Sys.,
Inc., 360 F.3d 544, 550 (6th Cir. 2004); Bush v. Dictaphone Corp., 161 F.3d 363, 369 (6th Cir.
1998). Braithwaite made these statements before leaving her employment with the York VA
facility, and her departure took place four months before Plaintiff’s termination. She was just
one of six “supervisors and lead customers” whom Reed consulted before he decided to
terminate Plaintiff. As for Reed’s comment about terminating Plaintiff or letting him retire, it
does not require the conclusion that age-based discrimination motivated Plaintiff’s termination.
Instead, in the context of an employee nearing the end of a one-year probationary period, it
references the several layers of disciplinary action that an employer must go through before
dismissing an employee who has completed the probationary term.

While the Court will

consider these statements in its circumstantial evidence analysis, none of them provides direct
evidence of discrimination.
2.

Circumstantial Evidence

In the absence of direct evidence, Plaintiff’s ADEA claim is analyzed under the familiar
evidentiary framework for cases based on circumstantial evidence set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). Cf. Geiger, 579 F.3d at 622. Under that
framework, Plaintiff must first establish a prima facie case of age discrimination. Martin v.
Toledo Cardiology Consultants, Inc., 548 F.3d 405, 410 (6th Cir. 2008) (citing Kline v. Tenn.
Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)). If he carries that burden, the burden shifts to
Defendant to present a legitimate, non-discriminatory reason for its actions. Id. at 410 (citing
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Kline, 128 F.3d at 342). Upon Defendant’s offer of such a reason, the burden shifts back to
Plaintiff to present sufficient evidence of pretext for the jury to reject the Defendant’s
explanation. Id. at 411-12; Allen v. Highlands Hosp. Corp., 545 F.3d 387, 394 (6th Cir. 2008);
To establish a prima facie case of age discrimination under the ADEA, Plaintiff must
show that (1) he is a member of a protected class; (2) he was discharged; (3) he was qualified for
the position that he held; and (4) he was replaced by a person outside the protected class. See
Geiger, 579 F.3d at 622 (citing Allen, 545 F.3d at 394). Defendant does not dispute that Plaintiff
has established the first three elements of the prima facie case but contends that Plaintiff cannot
establish that he was “replaced” by a younger employee. After Plaintiff’s termination, his
contemporary at the VA’s Nashville facility, Moss, performed both jobs while Defendant
unsuccessfully sought to fill the position competitively. Only after a year did Moss formally
assume Plaintiff’s position in Murfreesboro. Defendant cites Grosjean v. First Energy Corp.,
which explains that “[a] ‘person is not replaced when another employee is assigned to perform
the plaintiff’s duties in addition to other duties, or when the work is redistributed among other
existing employees already performing related work. A person is replaced only when another
employee is hired or reassigned to perform the plaintiff’s duties.’” 349 F.3d 332, 336 (6th Cir.
2003) (quoting Barnes v. GenCorp Inc., 896 F.2d 1457, 1465 (6th Cir. 1990)).
A straightforward application of the facts of Grosjean, however, defeats Defendant’s
argument. In Grosjean, after the employer demoted the plaintiff to a non-supervisory position,
another supervisor took over the plaintiff’s supervisory duties “on a temporary basis,” working
more than a thousand hours of overtime during a ten-month period before the employer hired
someone else to fill plaintiff’s position. Id. at 334. The Sixth Circuit held that the plaintiff “was
replaced, in both the colloquial and the legal meanings of that term” by the employee eventually
hired to fill plaintiff’s position. Id. at 336. In this case, while Moss took on Plaintiff’s duties in
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addition to his own duties for a time, he “replaced” Plaintiff because he was eventually
reassigned to Plaintiff’s position. Plaintiff has made out the prima facie case of discrimination.4
In response to the prima facie case, Defendant has set forth a legitimate, nondiscriminatory reason for Plaintiff’s termination: poor job performance in the position of
Assistant Logistics Manager. See Johnson v. Kroger Co., 319 F.3d 858, 866 (6th Cir. 2003);
Majewski v. Auto. Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001). Therefore, the
burden shifts back to Plaintiff to show that a genuine issue of material fact exists as to whether
Defendant’s reason is really a pretext to mask intentional discrimination. Plaintiff may establish
that the proffered reason is pretext in one of three ways: Defendant’s reason (1) lacks any basis
in fact, (2) was not the actual motivation for Plaintiff’s termination or (3) is not sufficient to
warrant termination. Abdulnour v. Campbell Soup Supply Co., 502 F.3d 496, 502 (6th Cir. 2007)
(citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir. 1994)). As the
Sixth Circuit has said of the pretext analysis, “it is important to avoid formalism in its
application, lest one lose the forest for the trees. Pretext is a commonsense inquiry: did the
employer fire the employee for the stated reason or not?” Chen v. Dow Chem. Co., 580 F.3d
394, 400 n.4 (6th Cir. 2009). Under the Sixth Circuit’s “honest belief” rule, the court asks
“‘whether the employer made a reasonably informed and considered decision before taking the
complained-of action’” but does not “‘require that the decisional process used by the employer
be optimal or that it left no stone unturned.’” Allen, 545 F.3d at 398 (quoting Michael v.
Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598-99 (6th Cir. 2007)). Therefore, an employee
cannot establish pretext by showing that the employer’s legitimate reason for discharge is
4

Nor does the Court find persuasive Defendant’s citation to an unpublished decision from a
district court outside the Sixth Circuit. See Loughnane v. Price Costco Wholesale, No. 9620298, 1998 WL 78086 (N.D. Cal. Feb. 10, 1998). Loughnane is also factually distinguishable
because the employer in that case manifested an “undisputed earnest desire to hire someone older
than” the plaintiff by initially offering plaintiff’s position to an older employee. Id. at *4. Thus,
the plaintiff could not make out the fourth element of the prima facie case.
12

ultimately incorrect. Majewski, 274 F.3d at 1117 (quoting Smith v. Chrysler Corp., 155 F.3d
799, 807 (6th Cir. 1998)).
Plaintiff’s evidence of pretext essentially falls into the following categories: the
statements made by Braithwaite and Reed, the “Fully Satisfactory” evaluation that Plaintiff
received in October 2008, factual errors and inconsistencies in the Memorandum of Record that
Reed prepared right before terminating Plaintiff, and confusion regarding the identity of the
decision maker who terminated the Plaintiff. The Court considers each category in turn.
As previously discussed, the statements by Braithwaite are significantly removed in time
from Plaintiff’s actual termination, and, while Reed listed Braithwaite as one of six people whom
he consulted about plaintiff’s performance, she was not a decision maker in the termination.
Still, Plaintiff maintains that Braithwaite’s statements reveal “a corporate state-of-mind or a
discriminatory atmosphere” that impacted the ostensibly neutral termination decision in this case.
See Conway v. Electro Switch Corp., 825 F.2d 593, 597-98 (1st Cir. 1987) (holding that trial
court properly admitted discriminatory statements made eight to ten months before plaintiff’s
termination).

The undisputed facts show, however, that Reed and Childress considered

Plaintiff’s job performance independent of Braithwaite’s perspective and found Plaintiff’s
performance inadequate. After Braithwaite left the company in October 2008, they explained to
Plaintiff that he was starting with a “clean slate” and had the remainder of the probationary
period to prove he could excel in the position. Nonetheless, Plaintiff’s job performance in the
remaining months continued to fall short of his supervisors’ expectations, leading Reed to
conclude that he could not justify keeping Plaintiff beyond the probationary period.5
5

Relatedly, the Court is aware that a non-decision maker can taint the process in a way that
subjects the employer to liability, even though the ultimate decision maker did not intend
unlawful discrimination. See Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 877 (6th Cir.
2001) (citing Shager v. Upjohn Co., 913 F.2d 398, 405-06 (7th Cir. 1990)). That theory does not
apply to this case. Reed’s decision to terminate Plaintiff reflected an independent determination
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With regard to Reed’s statement about the choice to terminate plaintiff or allow him to
retire, nothing in the context suggests that Reed “use[d] ‘retire’ as a proxy for ‘too old’ or some
other derogatory, age-based term.” See Scott v. Potter, 182 F. App’x 521, 526 (6th Cir. 2006).
A mere reference to retirement does not sufficiently indicate discrimination on its own, absent
some supporting evidence of a motive to discriminate based on age. See Barnhart v. Pickrel,
Schaeffer, & Ebeling Co., 12 F.3d 1382, 1394-95 (6th Cir. 1993). Here, Reed was deciding
whether to let Plaintiff go at the end of the probationary period, when he could be terminated
without cause, or allow Plaintiff to achieve permanent status, which requires several steps of
progressive discipline prior to termination. None of the distinctions between probationary and
permanent status bears on the Plaintiff’s age. Thus, the mere reference to “retirement” does not
sufficiently indicate age-based discrimination on its own.
Plaintiff goes on to argue that the “Fully Satisfactory” rating made by Braithwaite and
seconded by Childress in the October 2008 evaluation negates Defendant’s contention that poor
job performance was the reason for Plaintiff’s termination. Plaintiff maintains that the trier of
fact must determine whether Childress was honestly mistaken when he testified that he could not
downgrade Plaintiff’s rating because Plaintiff had not already been placed on a performance
improvement plan. Plaintiff also points to the testimony of Joseph Dassaro, an employee in
Defendant’s HR department in Murfreesboro, who testified that he could not recall a
probationary employee being terminated after receiving a “Fully Successful” rating.
However, the undisputed facts establish that Defendant made clear to Plaintiff during the
October 2008 evaluation that he would need to improve his performance to keep his job,
regardless of the nominally satisfactory rating that he had received. While Braithwaite assigned
based on (1) issues with Plaintiff’s performance that continued after Braithwaite’s departure and
(2) consultation with other individuals (besides Braithwaite) who are not subject to allegations of
discrimination. The record sets forth no evidence to support the contention that Braithwaite had
“decisive” influence in Reed’s decision to terminate Plaintiff.
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Plaintiff the “Fully Satisfactory” rating as she prepared to take a position in another state, she
included a narrative explaining that, “[i]n order for [Plaintiff] to succeed in this position, he will
need to take a stronger leadership role.” The narrative goes to describe how that, whenever
higher-level supervisors alerted him to a problem, Plaintiff would let the employee know that
someone else brought the matter to his attention. The narrative described this practice as “not
taking the leadership role and not providing support to his higher level supervisors.” Based on
his meeting with Reed and Childress shortly after the performance evaluation, Plaintiff testified,
“there was no doubt that [he] had some improvements to make . . . just from the verbal feedback
[he] got back from [Childress] at the performance appraisal.” In his testimony, Plaintiff further
admitted telling Reed and Childress that, if his performance did not improve in the remainder of
the probationary period, he would resign from his position instead of Reed having to let him go.
As for Dassaro, he testified that the narrative on Plaintiff’s performance evaluation was
atypical because the “Fully Successful” rating would not require a narrative. Dassaro further
agreed that the identification of performance deficiencies in the narrative put Plaintiff on notice
as to the areas he needed to improve and that, if he did not improve by the end of the
probationary period, Defendant would have cause to terminate him. Although Dassaro could not
recall whether any probationary employees had been terminated for performance-related issues
after receiving a “Fully Successful” rating, John Henderson testified that he could recall three or
four probationary employees who received a “Fully Successful” evaluation but were then
terminated for performance-related issues. In summary, under the facts of this case, the “Fully
Successful” rating that Plaintiff received in October 2008 does not create a triable question of
fact as to whether Defendant had performance-related reasons for terminating plaintiff in
February 2009 or actually terminated Plaintiff for those reasons.

15

Plaintiff argues that the “Memorandum for Record” provided by Reed to Plaintiff at the
time of termination contains abundant evidence of pretext. In evaluating these contentions, the
Court is mindful that challenging the soundness of the employer’s business judgment does not
establish age discrimination. See Majewski, 274 F.3d at 1116; Lopez v. Computer Network Tech.
Corp., 128 F. Supp. 2d 1061, 1066 (E.D. Mich. 2001). Furthermore, disputing the facts that
provided the basis for the discharge is also not enough to survive summary judgment.
Abdulnour, 502 F.3d at 502 (citing Braithwaite v. The Timken Co., 258 F.3d 488, 494 (6th Cir.
2001)). Plaintiff objects to the Memorandum’s discussion of the performance ratings within
Plaintiff’s department, contending that the ratings assigned by Plaintiff’s subordinate were
likewise approved by higher levels of supervisors within the organization. Plaintiff further
points to Childress’s instruction to raise the rating of an employee who had been deployed in Iraq
for much of the year so the employee would receive a bonus. Also, Plaintiff objects that the
Memorandum’s reference to a forged document as an example of Plaintiff’s lack of control and
oversight over his department is a non sequitur because Plaintiff could not have “controlled” a
document that someone forged.
The Court finds that these arguments do not undermine Defendant’s “honest belief” that
Plaintiff needed to be terminated because he was insufficiently hands-on in his leadership style.
The issues with his department’s performance ratings and the forged documents are mere
examples, emblematic of a larger problem with Plaintiff’s managerial style. When Plaintiff
began the position, he was advised about his subordinate’s prior practice of promising employees
outstanding ratings and then blaming upper management when those ratings were not awarded.
Despite being placed on notice, Plaintiff let the situation happen again by signing off on a set of
unrealistically high ratings. The fact that Childress asked Plaintiff to adjust upward one rating
under extenuating circumstances does not bear on the issue of an entire department receiving
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unrealistically high ratings. As for the forged document, the issue is not who “controlled” the
document; instead, the point is that the emergence of a forged document from within Plaintiff’s
department demonstrated his lack of hands-on control.
Furthermore, according to Plaintiff, the Memorandum criticizes his performance in
matters of warehouse operations for which other supervisory officials were not reprimanded and
which Braithwaite had also failed to address before his hiring without being reprimanded. To the
extent Defendant treated Plaintiff differently from his subordinates or from Braithwaite for the
same managerial oversights, this difference does not make out a case of disparate treatment
because Plaintiff, himself a probationary employee, is comparable only to other probationary
employees. See Goller v. Ohio Dep’t of Rehab. & Corr., 285 F. App’x 250, 256 (6th Cir. 2008);
accord Steinhauer v. DeGolier, 359 F.3d 481, 484-85 (7th Cir. 2004); Bogren v. Minnesota, 236
F.3d 399, 405 (8th Cir. 2000). Furthermore, Plaintiff fails to present any evidence from which
the trier of fact could conclude that Defendant’s harsher treatment of Plaintiff, if any, was
motivated by age-based animus. See Geiger, 579 F.3d at 625 (citing Browning v. Dep’t of the
Army, 436 F.3d 692, 696-97 (6th Cir. 2006)).
In the absence of evidence of age-based animus, the Court declines to question the way
that Defendant collected feedback about Plaintiff before the conclusion of the probationary
period. Plaintiff contends that Reed should have consulted Plaintiff’s subordinates instead of
Plaintiff’s supervisors and leading customers. The law did not require Reed to conduct a
perfectly meticulous consultation in determining whether to retain Plaintiff. See Allen, 545 F.3d
at 398. This decision is a matter of business judgment which the Court must not second-guess.
Furthermore, the Court rejects Plaintiff’s argument that the supervisors and customers consulted
by Reed did not, in effect, offer sufficiently negative feedback to warrant termination. The
undisputed facts show that, by the end of the probationary period, Reed’s evaluation of
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Plaintiff’s performance led him to the conclusion that he should terminate Plaintiff.

In

consulting Plaintiff’s other supervisors and customers, Reed learned nothing that would incline
him to change his mind. Nothing in this process suggests that Reed acted out of a motivation to
discriminate based on age.

The individuals listed in the Memorandum offered testimony

confirming that Reed did, in fact, consult each of them. Reed consulted with Braithwaite prior to
her departure in October 2008 and consulted with the other five toward the end of Plaintiff’s
probationary period. None of them asked Reed to keep Plaintiff past the probationary period.
Citing an unpublished district court opinion from outside the Sixth Circuit, Plaintiff
contends that, in surveying the opinion of individuals who did not have a particularly high level
of contact with Plaintiff, Defendant is effectively “piling on justifications” for Plaintiff’s
termination and thus engaging in context suggestive of pretext. See Gay v. Timberlake Homes,
Inc., Civil Action No. RDB-07-1930, 2008 WL 3075588, at *10 (D. Md. Aug. 1, 2008). A
review of Gay makes clear that, by “piling on,” the district court meant the subsequent addition
of other reasons for the employee’s dismissal besides the reasons originally provided at the time
of the decision. Id. Here, Defendant’s explanation of the reasons for Plaintiff’s termination has
not changed during the course of the litigation. Therefore, the consultation of other individuals
within the organization prior to the Plaintiff’s termination does not fit the meaning of “piling
on.”6
6

Plaintiff claims that Reed engaged in conduct that amounts to “piling on” by contacting
Braithwaite after Plaintiff’s termination in late February 2009. The first instance of such
contact, which took place in March or April, is unremarkable because Reed was simply
collecting for his files written statements from past supervisors and customers regarding
Plaintiff’s job performance. The second contact was an admittedly peculiar email
correspondence between Reed and Braithwaite in April 2010 when Reed inquired about
Braithwaite’s recollection of a particular transaction that provided “an example of [Plaintiff] not
knowing his job.” (Docket Entry No. 51-1, Exhibit 3, at 19.) Nothing came of that
correspondence, however. Braithwaite replied the transaction was “[n]ot a good example” of
Plaintiff’s job performance because it was a complex issue and Plaintiff had not been on the job
very long. Defendant has not used it for purposes of the present motion for summary judgment.
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Plaintiff seizes on the language in the Memorandum that the individuals consulted by
Reed “universally gave a ‘no confidence’ vote,” pointing out that some of these individuals
could not recall specifically being asked about their “confidence” in Plaintiff. Similarly, Plaintiff
takes issue with the Memorandum’s label of “counseling sessions” for conversations that
Plaintiff had concerning his job performance with Reed and Childress because these
conversations took place in the hallways or at the warehouse rather than inside someone’s office.
Such disputes over semantics do not create a genuine issue of material fact. The record makes
clear that the individuals consulted by Reed did not recommend Plaintiff’s retention and that
Plaintiff’s supervisors periodically discussed performance-related issues with him during the
probationary period.
Finally, Plaintiff argues that summary judgment is inappropriate because of contradictory
testimony among Defendant’s agents as to who made the termination decision. Plaintiff does not
clearly explain how a contradiction on this point would create a triable question of pretext. In
any event, the record contains no such contradiction. John Henderson testified that Reed and
Childress came to him for advice regarding Plaintiff’s performance as supervisor and he gave
them the options of terminating Plaintiff’s supervisory authority while retaining Plaintiff in
federal service or terminating Plaintiff altogether. Although Reed initially testified that John
Henderson terminated Plaintiff by signing the paperwork, Reed clarified that testimony later in
the deposition. When asked if his earlier testimony was accurate, Reed responded that it “was
probably a mistake” to have stated earlier that the termination was a human resources’ decision
and that “the end decision to not retain Jones was my decision.” (Docket Entry No. 36-7, Exhibit
3, at 102:13-25.) The undisputed facts make clear that Reed decided to terminate Plaintiff and
John Henderson prepared the termination letter at Reed’s direction.

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Plaintiff has not presented evidence of pretext sufficient to create a genuine issue of
material fact. As such, Plaintiff’s ADEA claim cannot survive a motion for summary judgment.
CONCLUSION
For all of the reasons stated, Defendant’s Motion for Leave to File Excess Pages (Docket
Entry No. 36) and Motion for Summary Judgment (Docket Entry No. 35) will be granted. This
case will be dismissed with prejudice.
An appropriate Order shall be entered.

_________________________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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