Campbell v. Zayo Group LLC
Filing
51
MEMORANDUM OPINION AND ORDER granting 30 Motion for Summary Judgment filed by Zayo Group LLC. (Ordered by Judge Sidney A Fitzwater on 6/25/2015) (Judge Sidney A Fitzwater)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
WILLIAM FRANCIS CAMPBELL,
Plaintiff,
VS.
ZAYO GROUP, LLC,
Defendant.
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§ Civil Action No. 3:13-CV-2192-D
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MEMORANDUM OPINION
AND ORDER
A plaintiff whose employment was terminated when two positions were
combined—and who was older, but had 21 fewer days of seniority, than the employee who
was retained—brings this action alleging age discrimination, in violation of the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. Concluding
that a reasonable jury could not find that plaintiff’s age was the but-for cause of his
termination, the court grants summary judgment in favor of defendant and dismisses this
action with prejudice.
I
In April 2012 AboveNet hired plaintiff William Francis Campbell (“Campbell”), then
age 61, as its sole Sales Manager for North Texas.1 Three months later, defendant Zayo
1
In recounting the factual background, the court summarizes the evidence in the light
most favorable to Campbell as the summary judgment nonmovant and draws all reasonable
inferences in his favor. See, e.g., Owens v. Mercedes-Benz USA, LLC, 541 F.Supp.2d 869,
870 n.1 (N.D. Tex. 2008) (Fitzwater, C.J.) (citing U.S. Bank Nat’l Ass’n v. Safeguard Ins.
Co., 422 F.Supp.2d 698, 701 n.2 (N.D. Tex. 2006) (Fitzwater, J.)).
Group, LLC (“Zayo”)2 acquired AboveNet. Zayo retained Campbell, but changed his title
to Director of Texas Sales, enlarging his managerial duties to include the entire state of
Texas.3 Campbell’s substantive duties in his expanded role were essentially the same as they
had been at AboveNet: he supervised eight employees, including Account Executives, Senior
Account Managers, the Director of Engineering, and Sales Engineers.
Campbell initially reported to Chris Murphy (“Murphy”), the Senior Vice President
of Sales. Murphy, in turn, reported to David Howson (“Howson”), Zayo’s President of
Sales. In Howson’s role as President of Sales, he was responsible for approving the head
count associated with hiring and all terminations, including reductions in force (“RIFs”). In
June or July 2012 Zayo developed a Strategic Alliances organization primarily responsible
for industry-specific sales and building relationships within potential clients in technology,
transportation, and equipment manufacturing. Steven Williams (“Williams”) was chosen to
lead this group and became Senior Vice President of Strategic Alliances. Williams selected
Lawrence Vega (“Vega”), whom Williams had hired in March 2012, for the role of Director
of Strategic Alliances for the Central Region of the United States. At the time Vega was
2
Zayo is an international provider of fiber-based bandwidth infrastructure services and
carrier-neutral colocation and interconnection services. According to Zayo, since July 2007
it has acquired 34 companies, and it restructures departments frequently as the company
grows, with reorganizations occurring often, approximately every six months.
3
Campbell was selected for the Director of Texas Sales position over Russell Smith
(“Smith”), another AboveNet sales employee. At the time Zayo selected Campbell for the
position, he was more than eight years older than Smith, who was not offered employment
with Zayo.
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hired, he was 41 years old.
In January 2013 Zayo underwent a corporate reorganization to consolidate its
Strategic Alliances and Sales organizations. As part of the reorganization, Zayo transferred
Williams from his role as Vice President of Strategic Alliances to Senior Vice President of
Sales for Zayo’s Central Region. On January 2, 2013 Murphy contacted Campbell to inform
him that, effective immediately, he would report to Williams. According to Zayo, in
conjunction with the reorganization, Williams made plans to consolidate the Director of
Strategic Alliances position held by Vega and the Director of Texas Sales position held by
Campbell into one remaining Sales Director role for the Central Region, with responsibilities
for both positions. The responsibilities of the new regional Sales Director position would
involve duties previously performed by the Director of Strategic Alliances, including
development of relationships with partners and key vendors of Zayo—tasks that Campbell
had not previously performed. In addition, the territory of the new position would include
not only Texas but also Nebraska, Kansas, Oklahoma, and Arkansas.
On January 9, 2013, just days after Williams became Campbell’s supervisor, Williams
sent an email to Sandi Mays (“Mays”), Zayo’s Chief of Staff, seeking approval to terminate
Campbell. In his email, Williams proposed a “consolidation of staff” in the Dallas market,
P. App. 82, which involved eliminating the position held by Vega, moving Vega into the
position of Sales Director, and terminating Campbell’s employment. According to Williams’
email, the two incumbents in these positions were Campbell and Vega. Vega was selected
for retention over Campbell because Campbell had less seniority, and Vega had “equal or
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superior skills” for the role.
Id.
Howson and Mays endorsed Williams’ decision.
Campbell’s employment was terminated on January 10, 2013.
Zayo uses a set procedure when it acquires another company and implements a RIF.
Its RIF Process states:
Based on the following criteria, an employee’s position is
selected for elimination. [Select in the following order]
1. Only Incumbent in eliminated position
2. Seniority (less than other Incumbents)
3. Job performance (only if performance is documented and has been
communicated to the impacted person)
4. Qualifications (provide specific qualifications necessary to complete
the job that other Incumbents have, that others don’t)
5. Geographic mobility (you offered the position to the employee, and
they declined to move)
P. App. 85. Campbell maintains that “[a]pplication of the process is supposed to be fairly
straightforward: If the reduction is accomplished by Step 1, then there is no need to move on
to Step 2; if Step 2 is dispositive, then there is no need to move on to Step 3, and so forth.”
P. Br. 6. Campbell contends that Zayo’s RIF policy dictated that Vega—the Director of
Strategic Alliances, and the sole incumbent in the Account Director position that was
eliminated—should have been terminated; instead, Zayo terminated Sales Director Campbell,
age 62, and replaced him with Vega, a 41-year-old whose position had been eliminated.
Campbell obtained a right to sue letter from the Equal Employment Opportunity
Commission (“EEOC”) and filed this lawsuit alleging that he was discharged because of his
age, in violation of the ADEA. Zayo moves for summary judgment. Campbell opposes the
motion.
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II
Because Campbell will bear the burden of proof on his claim at trial, Zayo can meet
its summary judgment obligation by pointing to the absence of admissible evidence to
support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Zayo does
so, Campbell must go beyond his pleadings and designate specific facts showing there is a
genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable
jury could return a verdict in Campbell’s favor. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Campbell’s failure to produce proof as to any essential element of his
claim renders all other facts immaterial. See TruGreen Landcare, L.L.C. v. Scott, 512
F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.) (citations omitted). Summary judgment
is mandatory if Campbell fails to meet this burden. See Little, 37 F.3d at 1076.
III
Campbell alleges that Zayo violated the ADEA by terminating his employment due
to his age. It is unlawful under the ADEA “to discharge any individual . . . because of such
individual’s age.” 29 U.S.C. § 623(a)(1). To prove age discrimination, a plaintiff can rely
on direct or circumstantial evidence. See, e.g., Flanner v. Chase Inv. Servs. Corp., 600 Fed.
Appx. 914, 917 (5th Cir. 2015) (per curiam) (“To establish an age discrimination claim, an
employee must prove by a preponderance of the evidence, which may be direct or
circumstantial, that age was the ‘but for’ cause of the employer’s adverse decision.”).
Because Campbell is relying on circumstantial evidence, he must establish discrimination
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using the “modified McDonnell Douglas approach.”4 Rachid v. Jack In The Box, Inc., 376
F.3d 305, 312 (5th Cir. 2004).
As modified, McDonnell Douglas5 consists of three stages. First, Campbell must
establish a prima facie case of discrimination, which “creates a presumption that [Zayo]
unlawfully discriminated against [him].” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 254 (1981).
Second, the burden shifts to Zayo to articulate a legitimate,
nondiscriminatory reason for terminating Campbell’s employment. See St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Zayo’s burden is one of production, not proof,
and involves no credibility assessments. See, e.g., West v. Nabors Drilling USA, Inc., 330
F.3d 379, 385 (5th Cir. 2003). This “burden requires the production of admissible evidence
in support of its nondiscriminatory reasons.” Hervey v. Miss. Dep’t of Educ., 404 Fed. Appx.
865, 868 (5th Cir. 2010) (per curiam) (citing Burdine, 450 U.S. at 255). Third, if Zayo meets
its production burden, “the burden shifts back to the plaintiff to make an ultimate showing
of intentional discrimination.” Reed v. Neopost USA, Inc., 701 F.3d 434, 439 (5th Cir. 2012).
At this final stage of the McDonnell Douglas framework, “[u]nder the ADEA, a plaintiff
4
In Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court
noted that it “has not definitively decided whether the evidentiary framework of McDonnell
Douglas . . . is appropriate in the ADEA context.” Id. at 175 n.2. The Court relied instead
on a textual analysis of the ADEA to resolve the question whether a plaintiff can succeed on
a “mixed-motives” claim of age discrimination. Absent Supreme Court authority, the court
will follow the Fifth Circuit’s post-Gross precedent and apply McDonnell Douglas to ADEA
cases. See, e.g., Chamblee v. Miss. Farm Bureau Fed’n, 551 Fed. Appx. 757, 759 (5th Cir.
2014) (per curiam) (applying McDonnell Douglas framework to ADEA claim).
5
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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must prove that age was the ‘but for’ cause of the challenged adverse employment action.”
Id. at 440 (citing Moss v. BMC Software, Inc., 610 F.3d 917, 928 (5th Cir. 2010)); see also
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
These three steps constitute the McDonnell Douglas framework. “Although
intermediate evidentiary burdens shift back and forth under this framework, ‘[t]he ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.’” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (quoting Burdine, 450 U.S. at 253).
IV
Under the McDonnell Douglas framework, Campbell must first establish a prima facie
case of age discrimination.
A
“To establish a prima facie case, a plaintiff need only make a very minimal showing.”
Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir. 1996) (quoting Thornbrough v.
Columbus & Greenville R.R. Co., 760 F.2d 633, 639 (5th Cir. 1985)) (brackets and internal
quotation marks omitted). A prima facie case merely raises the inference of discrimination,
because the court presumes that the employer’s acts, if otherwise unexplained, are more
likely than not based on the consideration of impermissible factors. See Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577 (1978). In an age discrimination case, a plaintiff is only
required to show that “(1) he was discharged; (2) he was qualified for the position; (3) he was
within the protected class at the time of discharge; and (4) he was either i) replaced by
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someone outside the protected class, ii) replaced by someone younger, or iii) otherwise
discharged because of his age.” Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 378
(5th Cir. 2010) (quoting Berquist v. Wash. Mut. Bank, 500 F.3d 344, 349 (5th Cir. 2007))
(internal quotation marks omitted). “In cases involving a RIF where the plaintiff has not
been replaced, the fourth element of the prima facie case can be established by evidence that
members outside the protected class remained in similar positions after the RIF.” Hall v.
Sealy, Inc., 2011 WL 4389701, at *4 (N.D. Tex. Sept. 21, 2011) (Fitzwater, C.J.).
B
Zayo contests only the fourth element of Campbell’s prima facie case. It argues that
Campbell cannot show that he was “replaced” by someone younger because the Director of
Texas Sales position that Campbell occupied at the time of his termination was never filled.
Rather, the position was combined with the Director of Strategic Alliances position, with the
new regional Sales Director performing some of the Director of Strategic Alliances duties
and some of the Director of Texas Sales duties with an expanded territory. Zayo contends
that Campbell cannot show that he was otherwise discharged because of his age because it
is undisputed that he was selected for termination because Vega had more seniority with
Zayo; Campbell has no evidence that his age was even considered by Zayo in the decisionmaking process; and Zayo’s predecessor hired Campbell when he was 61 years old, and it
is illogical to find that Zayo would then terminate him six months later based on his age.6
6
To the extent Zayo contends the “same actor inference” applies in the context of
Campbell’s prima facie case or in connection with the court’s pretext analysis, because the
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Campbell relies in response on Williams’ January 9, 2013 email to Mays, in which
he states: “[w]e are eliminating the position that [Vega] currently holds, Director, Strategic
Alliances and recommend moving [Vega] into the Sales Director role.” P. App. 82.
Campbell appears to argue that his termination was not part of a RIF—i.e., had Zayo
followed its RIF policy, it would have terminated Vega, the person whose job was being
eliminated—and that the evidence shows that Zayo eliminated Vega’s position, terminated
Campbell, and replaced Campbell with Vega. Alternatively, Campbell argues that under the
Williams7 test applicable to RIF cases, he can raise a fact issue through undisputed evidence
that a younger employee (Vega) remained in a similar position after Campbell was
terminated.
C
“[T]o establish a prima facie case, a plaintiff need only make a very minimal
showing.” Thornbrough, 760 F.2d at 639. That is, the burden is not an onerous one.
Burdine, 450 U.S. at 253. A prima facie case merely raises the inference of discrimination,
because the courts presume the employer’s acts, if otherwise unexplained, are more likely
court is granting Zayo’s motion for summary judgment on other grounds, the court need not
assess whether Zayo would be entitled to summary judgment if the “same actor inference”
were applied.
7
Williams v. Gen. Motors Corp., 656 F.2d 120, 130 (5th Cir. Unit B 1981) (holding,
in RIF case, that plaintiff can satisfy final element of prima facie case by producing evidence
that “lead[s] the factfinder reasonably to conclude either (1) that defendant consciously
refused to consider retaining or relocating a plaintiff because of his age, or (2) defendant
regarded age as a negative factor in such consideration.”).
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than not based on the consideration of impermissible factors. Furnco Constr. Corp., 438
U.S. at 577.
“In cases involving a RIF where the plaintiff has not been replaced, the fourth element
of a prima facie case can be established by evidence that members outside the protected class
remained in similar positions after the RIF.” Hall, 2011 WL 4389701, at *4; see also Best
v. GTE Directories Serv. Corp., 1993 WL 13143213, at *4 (N.D. Tex. Mar. 19, 1993)
(Fitzwater, J.) (“The discharge coupled with the retention of younger employees creates the
presumption of discrimination in a reduction-in-force case.” (citing Thornbrough, 760 F.2d
at 644)).
Whether viewed as a replacement case or a RIF case, it is undisputed that Vega (age
41) was selected over Campbell (age 62) for the position of regional Sales Director and that
Campbell’s employment was terminated. Because establishing a prima facie case is not
onerous, the court holds that Campbell’s allegations are sufficient to satisfy the fourth
element. See Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 813 (5th Cir. 1991)
(holding that plaintiff established prima facie case of discrimination by producing evidence
that, at the time of his dismissal, “younger, allegedly less qualified persons were retained”);
Nichols, 81 F.3d at 41 (stating that “very minimal” amount of circumstantial evidence is
sufficient to make out prima facie case of discrimination). Accordingly, the burden shifts to
Zayo to articulate a legitimate, nondiscriminatory reason for terminating Campbell’s
employment.
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V
Zayo must produce evidence of a legitimate, nondiscriminatory reason for terminating
Campbell. Zayo has introduced proof that it terminated Campbell’s employment as part of
a reorganization/RIF. “A RIF is presumptively a legitimate, non-discriminatory reason for
a discharge.” Rosenblatt v. 7-Eleven, Inc., 2007 WL 2187252, at *6 (N.D. Tex. July 27,
2007) (Fitzwater, J.) (citing Tucker v. SAS Inst., Inc., 462 F.Supp.2d 715, 727 (N.D. Tex.
2006) (Fish, C.J.)). Accordingly, Zayo has met its burden of production, and the burden has
shifted to Campbell to “‘raise a genuine issue of material fact as to whether the employer’s
proffered reason was merely a pretext for age discrimination.’” Id. (quoting Medina v.
Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001)).
VI
The court now considers whether Campbell has introduced evidence that would enable
a reasonable jury to find that Zayo’s proffered legitimate, nondiscriminatory reason for
discharging him is pretextual.
A
To establish pretext, Campbell must introduce sufficient evidence for a reasonable
jury to find that Zayo’s “proffered explanation is false or unworthy of credence.” Vaughn
v. Woodforest Bank, 665 F.3d 632, 637 (5th Cir. 2011) (citation and internal quotation marks
omitted). At the summary judgment stage, of course, Campbell need only present sufficient
evidence to raise a genuine issue of material fact. See, e.g., Jackson v. Fed. Express Corp.,
2006 WL 680471, at *6 (N.D. Tex. Mar. 14, 2006) (Fitzwater, J.) (“Because [defendant] has
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satisfied its burden to produce a legitimate, nondiscriminatory reason for [plaintiff’s]
discharge, in order for [plaintiff] to survive summary judgment, he must create a genuine and
material fact issue regarding the ultimate question of discrimination.”). But to carry this
burden, Campbell “must produce substantial evidence of pretext.” Auguster v. Vermilion
Parish Sch. Bd., 249 F.3d 400, 402-03 (5th Cir. 2001); see also id. at 403 n.3.
B
Campbell first contends that Williams’ January 9, 2013 email requesting approval to
terminate Campbell explicitly and unambiguously states that Vega’s position is being
eliminated. He argues that there were not two incumbents for the Sales Director position;
rather, he was the only incumbent in the Sales Director position, and his position was not
eliminated. Campbell thus posits that, according to the Zayo RIF process, Vega (the nonincumbent) should have been terminated at the first step.
Zayo maintains that neither Campbell’s nor Vega’s position was being eliminated;
“[r]ather, the . . . Director of Strategic Alliances and Director of Texas Sales positions were
combined, and changed to form a new go forward regional Sales Director role.” D. Br. 12.
Zayo produces evidence that when Vega became the regional Sales Director, he continued
to perform some of his previous Strategic Alliance duties in addition to the duties of a Sales
Director, within an expanded territory. Zayo also relies on evidence that some of the
responsibilities that Campbell had previously performed (e.g., supervising sales engineers
and customer service representatives) were assigned to others.
Campbell does not dispute these underlying facts; instead, he relies on Williams’
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January 9, 2013 email, which states, “[w]e are eliminating the position that [Vega] currently
holds, Director, Strategic Alliances and recommend moving [Vega] into the Sales Director
role.”8 P. App. 82. Campbell argues that this statement “explicitly and unambiguously states
that Vega’s position is being eliminated.” P. Br. 21. But Williams also clearly states, in the
same email, “[w]e are recommending a consolidation of staff in the Dallas, TX market.” P.
App. 82 (emphasis added). And Campbell offers no argument or evidence that would enable
a reasonable jury to disbelieve Zayo’s evidence that, in fact, the job responsibilities of the
new regional Sales Director position included a combination of some of Vega’s prior
responsibilities and some of Campbell’s responsibilities.
Moreover, even if a reasonable jury could find, based on Williams’ email, that Zayo
was eliminating Vega’s position (rather than blending Vega’s and Campbell’s positions into
a single new one), and that Zayo incorrectly applied its RIF Process, “[a]n employer’s
conscious, unexplained departure from its usual policies and procedures when conducting
a RIF may in appropriate circumstances support an inference of age discrimination” only if
“the plaintiff establishes some nexus between employment actions and the plaintiff’s age.”
8
Campbell also points to the following exchange from Howson’s deposition:
Q. Is it a correct statement that it was actually the director of
Strategic Alliance position that was eliminated, rather than a
sales director?
A. That’s what this says.
Q. Do you agree with that?
A. I do.
P. App. 54.
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Rosenblatt, 2007 WL 2187252, at *9 (quoting Tyler v. Union Oil Co. of Cal., 304 F.3d 379,
396 (5th Cir. 2002)).
Proof that an employer did not follow correct or standard
procedures in the termination or demotion of an employee may
well serve as the basis for a wrongful discharge action under
state law. As we have stated, however, the ADEA was not
created to redress wrongful discharge simply because the
terminated worker was over the age of forty. A discharge may
well be unfair or even unlawful and yet not be evidence of age
bias under the ADEA. To make out an ADEA claim, the
plaintiff must establish the existence of discrete facts that show
some nexus between the employment actions taken by the
employer and the employee’s age. [A] bald assertion that one
exists . . . simply will not suffice.
Moore v. Eli Lilly & Co., 990 F.2d 812, 819 (5th Cir. 1993). As explained below, see infra
§ VI(F), Campbell has failed to adduce any evidence, other than his own speculation, that
would establish a nexus between his termination and his age.
C
Campbell contends that Zayo should not have treated him and Vega as “peers” for
purposes of the RIF because he, a Sales Director, had extensive management experience
whereas Vega, an Account Director, did not. Campbell similarly argues that he was clearly
better qualified than Vega for the job based on his education, financial acumen, and the fact
that he had previously managed other employees.
In a RIF case, a plaintiff can prove pretext by introducing evidence that he “was
clearly better qualified than younger employees who were retained.” Rosenblatt, 2007 WL
2187252, at *7 (quoting Walther v. Lone Star Gas Co., 952 F.2d 119, 123 (5th Cir. 1992)
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(internal quotation marks omitted); see also Odom v. Frank, 3 F.3d 839, 845-46 (5th Cir.
1993) (concluding that factfinder can infer “pretext masking discrimination” if the plaintiff
is “clearly better qualified for the position in question”). Demonstrating that a candidate is
“clearly better qualified” requires the disparities in qualifications to be “‘of such weight and
significance that no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job in question.’” Celestine v.
Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001) (quoting Deines v. Tex. Dep’t
of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir. 1999)). This stringent
requirement, when combined with the summary judgment standard, requires that Campbell
adduce evidence that would enable a reasonable jury to find that no reasonable person could
have chosen Vega over Campbell. Campbell has not met this burden.
Campbell contends that he was “clearly better qualified” for the Sales Director
position because he had an MBA whereas Vega did not have a college degree, “by virtue of
his financial acumen,”9 and because he had previously managed other employees and Vega
9
Regarding his “financial acumen,” Campbell offers no evidence, other than his
subjective opinion, that would enable a reasonable jury to find that he had a better financial
acumen than Vega. Accordingly, this evidence is insufficient to raise a genuine issue of fact
regarding whether Campbell was “clearly better qualified” than Vega. See Choe v. Bank of
Am., N.A., 2014 WL 2438378, at *3 (N.D. Tex. May 30, 2014) (Fitzwater, C.J.) (holding that
summary judgment nonmovants’ “conclusory assertion—unsupported by a proper citation
to the summary judgment record—[was] insufficient to withstand summary judgment”),
aff’d, ___ Fed. Appx. ___, 2015 WL 1285280 (5th Cir. Mar. 23, 2015); see also Ramsey v.
Henderson, 286 F.3d 264, 269 (5th Cir. 2002) (“‘[C]onclusory allegations, speculation, and
unsubstantiated assertions are inadequate to satisfy’ the nonmovant’s burden in a motion for
summary judgment.” (quoting Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429
(5th Cir. 1996) (en banc))).
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had not. P. Br. 22. Campbell fails to explain, however, why the fact that he held an MBA
and had previously managed other employees made him “clearly better qualified” for the
regional Sales Director position when compared to Vega. Indeed, he points to no job
description for the newly-created regional Sales Director position10 or other evidence that
would suggest that having an MBA or prior management experience was a qualification for
the position. Moreover, Zayo has adduced undisputed evidence that Vega was only 10 hours
short of obtaining a college degree, had over 15 years’ experience in the sales industry at the
time of the RIF, and had previously owned and run his own company before selling it to a
client. In light of this undisputed evidence, a reasonable jury could not find that no
reasonable person could have chosen Vega over Campbell for the regional Sales Director
position.
D
Campbell argues that although Zayo now takes the position that performance was not
considered, Williams’ January 9, 2013 email refers to Vega’s “equal or superior skills for the
role,” P. App. 82, which “sounds like a performance-based comparative judgment and, being
false or at least suspicious (like Williams is trying to build a case for what he knows is
10
To the extent Campbell relies on a document entitled “Sales Director” (which
appears to be a job posting seeking qualified applicants) as evidence of the job description
for the new regional Sales Director position, Campbell has failed to adduce any evidence of
the date this document was created or whether the job description contained in the document
applied to the newly-created regional Sales Director position. Moreover, Howson testified
that Zayo does not have “formal qualifications criteria for [the] sales director position at
Zayo,” P. App. 55, and he testified at his deposition that he had not previously seen the
“Sales Director” document.
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wrong), supplies evidence of mendacity.” P. Br. 23. The court disagrees. Williams’ email
does not refer either to Campbell’s or to Vega’s “performance” as a consideration relevant
to the termination decision. And to the extent Williams’ email can be read to suggest that
Campbell’s and Vega’s “qualifications” were considered in connection with the termination
decision, Campbell has failed to adduce sufficient evidence to enable a reasonable jury to
find that Williams’ statement that “[Vega] has equal or superior skills for the role” was a
pretext for discrimination. P. App. 82. In other words, Campbell has failed to adduce any
evidence that Williams did not actually believe that Vega’s qualifications for the regional
Sales Director position were equal or superior to Campbell’s.
E
Campbell contends that Zayo’s reliance on seniority as an objective criterion in the
RIF process was contrived because there was only a 21-day difference in seniority, which
Campbell characterizes as a “distinction without a difference.” P. Br. 23. But Campbell does
not dispute that Zayo’s RIF Process in fact lists “seniority” as the second criterion to be
considered; that, pursuant to the process, where there are two incumbents and one has less
seniority than the other, the incumbent with less seniority is to be eliminated11; or that Vega
had been employed for 21 days longer than Campbell. Although Campbell may view the 21day difference as insignificant,
11
See P. Br. 6 (explaining that “[a]pplication of the process is supposed to be fairly
straightforward: If the reduction is accomplished by Step 1, then there is no need to move on
to Step 2; if Step 2 is dispositive, then there is no need to move on to Step 3, and so forth.”).
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[t]he ADEA was not intended to be a vehicle for judicial
second-guessing of employment decisions, nor was it intended
to transform the courts into personnel managers. The ADEA
cannot protect older employees from erroneous or even arbitrary
personnel decisions, but only from decisions which are
unlawfully motivated.
Rosenblatt, 2007 WL 2187252, at *11 (quoting Bienkowski v. Am. Airlines, Inc., 851 F.2d
1503, 1507-08 (5th Cir. 1988)) (internal quotation marks omitted). Here, a reasonable jury
could only find that Zayo followed the criteria listed in its RIF Process in retaining Vega and
terminating Campbell. The fact that there was only a 21-day difference in seniority is
insufficient to support a finding of pretext.12
F
In sum, the most Campbell has done is create a weak fact issue as to whether Zayo’s
proffered reason for his termination—a RIF that resulted in the retention of the more senior
employee—was the real reason for his termination. As explained above, “[t]he ultimate
question is whether the employer intentionally discriminated, and proof that ‘the employer’s
proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish
that the plaintiff’s proffered reason is . . . correct.’” Reeves, 530 U.S. at 146-47 (quoting St.
Mary’s Honor Ctr., 509 U.S. at 524). In other words, “‘[i]t is not enough . . . to disbelieve
12
Campbell also contends that “Zayo made material misrepresentations to the EEOC,
seeking to leave the impression that there was no age discrimination because Zayo followed
its RIF procedure when, in fact, it favored a younger employee (Vega) and violated its own
RIF procedure to accomplish Campbell’s termination.” P. Br. 24. Campbell has failed to
adduce any evidence, however, that would enable a reasonable jury to find that Zayo made
an untrue statement to the EEOC.
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the employer; the factfinder must believe the plaintiff’s explanation of intentional
discrimination.’” Id. at 147 (quoting St. Mary’s Honor Ctr., 509 U.S. at 519). Aside from
the fact that Campbell was 62 years old when he was terminated, he presents no evidence that
would enable a reasonable jury to find that his age, as opposed to some other reason, was the
but-for cause of his termination.
Because a reasonable jury could not find that Campbell’s age was the but-for cause
of his termination, Zayo is entitled to summary judgment dismissing his ADEA claim.
*
*
*
For the foregoing reasons, the court grants Zayo’s motion for summary judgment and
dismisses Campbell’s action with prejudice by judgment filed today.
SO ORDERED.
June 25, 2015.
_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE
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