Ferrell v. Babcock & Wilcox, Co. et al
Filing
51
MEMORANDUM OPINION. Signed by Judge Norman K. Moon on 8/19/13. (hnw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
STEVEN WILLIAM FERRELL, SR.,
CASE NO. 6:12-cv-00048
Plaintiff,
v.
MEMORANDUM OPINION
BABCOCK & WILCOX, CO., ET AL.,
JUDGE NORMAN K. MOON
Defendants.
Plaintiff Steven William Ferrell, Sr. (“Plaintiff”) filed this action against The Babcock &
Wilcox Company (“B&W”) and six of its employees (the “Individual Defendants”) alleging age
discrimination and retaliation in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 623 et seq.1 I dismissed the claims against the Individual Defendants
because the ADEA does not impose liability on individual supervisors for ADEA violations that
relate to “personnel decisions of a plainly delegable character.” Ferrell v. Babcock & Wilcox
Co., No. 6:12-cv-00048, 2013 WL 557197, at *2 (W.D. Va. Feb. 13, 2013) (quoting Birkbeck v.
Marvel Lighting Corp., 30 F.3d 507, 510–11 (4th Cir. 1994)). B&W has moved for summary
judgment. For the following reasons, I will grant B&W’s motion.
I. BACKGROUND
Plaintiff is a former B&W employee who worked at a facility located in Lynchburg,
Virginia. He began working for B&W in 1975, and from 2007 through 2011 he was assigned to
1
Plaintiff stated in his Complaint that he also brought his claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., but all of his allegations relate to age discrimination, which is not covered by Title VII. He
does not allege or present any evidence that he was discriminated against on the basis of “race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2. Thus, I only consider his claims under the ADEA.
provide IT services to B&W’s Nuclear Operations Group. Specifically, he worked on the Help
Desk team in the role of Media Center Operator. Plaintiff alleges that on multiple occasions in
2010, he was treated less favorably than younger employees with respect to his work schedule
and vacation time. In March 2010, Plaintiff requested a shift change that would allow him to
take Mondays off and work longer hours the rest of the week. Plaintiff alleges that his
supervisor denied his request even though a younger employee had previously been allowed to
take Mondays off. Plaintiff states that he took his complaints about the alleged age
discrimination “up the chain of command,” ultimately telling a senior human resources specialist
that the denial of his requested shift change constituted “PURE DISCRIMINATION.” In May
2010, Plaintiff asked again about taking Mondays off, and his supervisor denied this request as
well, allegedly in retaliation for Plaintiff complaining about discrimination.
In September 2010, Plaintiff requested time off for Christmas, but his supervisor delayed
making a decision until early December, when he denied Plaintiff’s vacation request. The
supervisor stated that he denied the request because Plaintiff had not accrued enough vacation
time for the number of days off requested. Plaintiff needed to work one more hour to accumulate
the required amount; he did so, and his supervisor then granted his request. Plaintiff also alleges
that his supervisor threw papers at him, that he was excluded from meetings, and that B&W
declined to pay for training classes for him even though the company did pay for other
employees to take such classes. Finally, on March 8, 2011, B&W laid off Plaintiff, who was 57
years old at the time. Following his layoff, Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission office in Richmond, Virginia, on March 21, 2011,
and the EEOC issued a right-to-sue letter on June 20, 2012. Plaintiff filed this action on
September 20, 2012, alleging age discrimination, retaliation, and a hostile work environment.
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Eight days before a scheduled hearing on B&W’s summary judgment motion, Plaintiff
filed a motion to compel in which he requested that the Court order B&W to respond to a
Request for Documents in which Plaintiff asked for:
All correspondence, reports, recordings, pictures, photographs, notes, videotapes,
or memoranda, including all electronically stored information, created or
produced by any possible witness in this matter, including the Plaintiff in your
possession which in any way relates to any of the circumstances, allegations,
assertions, and/or claims alleged in the Complaint.
Plaintiff stated that this request encompasses emails he sent that pertain to his scheduling request
and request for vacations. B&W opposed Plaintiff’s motion, and both parties presented
argument on it at the summary judgment hearing. At the hearing, I ordered B&W’s counsel to
have a representative of the company search for email records mentioned by Plaintiff and file an
affidavit regarding the results of the search. B&W filed such an affidavit on June 20, 2013. In
the affidavit, a B&W representative described the company’s document retention policy, the
steps taken to preserve documents related to this case and provide them to Plaintiff, and the
results of a final search of the classified network undertaken after the summary judgment
hearing. The B&W representative stated that the most recent search did not turn up any
documents that relate in any way to this claim that had not already been produced to Plaintiff.2
II. LEGAL STANDARD
Summary judgment under Rule 56 should be granted if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
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Nearly a month after B&W filed the affidavit in response to the Court’s order at the summary judgment hearing,
Plaintiff filed a “reply” to the affidavit, in which he disputed the company’s characterization of its document
retention policy and claimed that the company’s mail servers “could contain the documents supporting the Plaintiff
in this matter.” Although Plaintiff states that he spoke with B&W employees who can confirm his claims, he has
not provided their names, let alone any declarations, affidavits or other admissible evidence that even remotely
support his assertions. Nor has he indicated how any documents that B&W allegedly did not produce would support
his claims. I will therefore grant B&W’s motion to strike Plaintiff’s response to the affidavit.
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see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “As to materiality . . . [o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). If the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Id. at 249–50.
In considering a motion for summary judgment, a court must view the record as a whole
and draw all reasonable inferences in the light most favorable to the non-moving party. Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The party seeking summary
judgment bears the burden of showing an absence of evidence to support the non-moving party’s
case. Celotex, 477 U.S. at 325. If the moving party sufficiently supports its motion for summary
judgment, the burden shifts to the non-moving party to set forth specific facts illustrating genuine
issues for trial. Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). On those issues for
which the non-moving party has the burden of proof, it is his or her responsibility to oppose the
motion for summary judgment with affidavits or other admissible evidence specified in the rule.
Fed. R. Civ. P. 56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16 (4th Cir. 1993); see
also Cheatle v. United States, 589 F. Supp. 2d 694, 698 (W.D. Va. 2008) (“Indeed, the nonmoving party cannot defeat a properly supported motion for summary judgment with mere
conjecture and speculation.”) (citation omitted).
The court’s role is to determine whether there is a genuine issue based upon the facts, and
“not . . . weigh the evidence and determine the truth of the matter.” Anderson, 477 U.S. at 249.
Ultimately, the trial court has an “affirmative obligation” to “prevent ‘factually unsupported
claims [or] defenses’ from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir. 1987) (quoting Celotex, 477 U.S. at 323–24).
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III. DISCUSSION
Plaintiff’s allegations of discrimination fall into three categories: 1) disparate treatment
based on the denial of his requests for a shift change and his termination from B&W; 2)
retaliation for complaining about alleged discrimination to a B&W employee who served as
Senior HR Specialist and EEO employee; and 3) a hostile work environment claim based on
various conditions or incidents, some of which also serve as the basis for his retaliation
allegations. I will discuss each category of allegations in turn.
A. Disparate Treatment
Under the ADEA, it is unlawful “to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In the absence of direct
or circumstantial evidence of age discrimination sufficient to warrant a “mixed motive” analysis,
courts apply the McDonnell Douglas burden shifting framework. Laber v. Harvey, 438 F.3d
404, 430 (4th Cir. 2006). Under that framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination. Id. While the precise formulation of the
requirements of a prima facie case vary depending on the nature of the claim, see Rowe v.
Marley Co., 233 F.3d 825, 829 (4th Cir. 2000), in general a plaintiff must prove four elements:
“(1) plaintiff is in a protected class; (2) an adverse employment action was taken against
plaintiff; (3) plaintiff was performing [his] job at a level that met the employer’s expectations;
and (4) plaintiff’s employer did not treat the protected status neutrally, or there were other
circumstances giving rise to an inference of discrimination.” DeBord v. Washington Cnty. Sch.
Bd., 340 F. Supp. 2d 710, 713 (W.D. Va. 2004) (citing Dugan v. Albemarle Cnty. Sch. Bd., 293
F.3d 716, 721 (4th Cir. 2002)). I conclude that Plaintiff has failed to make out a prima facie case
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with respect to either the denial of his request for a shift change or his termination as part of
B&W’s reduction in force.
1. Plaintiff’s Request for a Shift Change
As an initial matter, B&W contends that the denial of Plaintiff’s request for a shift change
is not actionable because it is time-barred under the ADEA’s statute of limitations. “[T]he
ADEA require[s] a Virginia plaintiff—as a prerequisite to filing suit—to file an EEOC charge
within 300 days of the unlawful employment decision.” Babus v. M/A-COM Private Radio Sys.,
Inc., No. 6:06cv00048, 2007 WL 2288021, at *3 (W.D. Va. Aug. 7, 2007); see also 29 U.S.C. §
626(d). Since Plaintiff filed a charge of discrimination on March 21, 2011, any acts of
discrimination that took place before May 25, 2010, are time-barred. The initial denial of
Plaintiff’s request for a shift change took place in March or April of 2010, more than 300 days
before Plaintiff filed a charge of discrimination with the EEOC. However, Plaintiff also alleges
that he was not permitted to take Mondays off in May 2010, so it is possible that claims relating
to that denial are timely, but Plaintiff has not specified exactly when he made his request.
Even assuming Plaintiff’s complaints about the shift change were timely, I find that he
has failed to make out a prima facie case because the denial of the shift change request does not
constitute an adverse employment action. “An adverse employment action under the ADEA
results from an employer materially altering the terms, conditions, or benefits of employment.”
Griffith v. Wal-Mart Stores East, L.P., No. 6:12-cv-00011, 2012 WL 5465501, at *9 (W.D. Va.
Aug. 24, 2012) (citing Burgoon v. Potter, 369 F. Supp. 2d 789, 797 (E.D. Va. 2005)). “An
inquiry into the adverse nature of an employer’s action ordinarily focuses on whether the
employee has suffered termination, demotion, decrease in pay or benefits, loss of job title or
supervisory responsibility, or decreased opportunities for promotion.” Burgoon, F. Supp. 2d at
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797 (citing Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999)). Thus, actions such as
reassignment to a new position do not constitute an adverse employment action. See Boone, 178
F.3d at 256 (addressing the Title VII context); Peary v. Goss, 365 F. Supp. 2d 713, 722–23 (E.D.
Va. 2005) (applying Boone in the ADEA context). Similarly, denial of a shift change request,
particularly one that would permit an employee to take one day off per week, does not affect the
terms or conditions of an employee’s employment; rather, it simply maintains the status quo. I
conclude that the denial of Plaintiff’s shift change request is not an adverse employment action.
2. Plaintiff’s Termination
Plaintiff stated in his deposition that he did not believe he was laid off because of his age.
Ferrell Dep. 128:1–5, Apr. 11, 2013. This admission alone is enough to grant summary
judgment in B&W’s favor. But even had Plaintiff not made this admission, he cannot make out
a prima facie case of discrimination. The Fourth Circuit has held that to establish a prima facie
case “in the context of a reduction in force where performance was the announced criterion for
selection,” which is the case here, a plaintiff must show that:
(1) the employee was protected by the ADEA; (2) he was selected for discharge
from a larger group of candidates; (3) he was performing at a level substantially
equivalent to the lowest level of those of the group retained; and (4) the process of
selection produced a residual work force of persons in the group containing some
unprotected persons who were performing at a level lower than that at which he
was performing.
Stokes v. Westinghouse Savannah River Co., 206 F.3d 420, 429–30 (4th Cir. 2000) (quoting
Mitchell, 12 F.3d at 1315); see also Burke v. Rochester Corp., No. 3:04CV00037, 2005 WL
2372163, at *4 (W.D. Va. Sept. 23, 2005), aff’d, 184 F. App’x 309 (4th Cir. 2006). Plaintiff has
failed to establish either the third or fourth element of the prima facie case.
With respect to the third element, the evidence shows that Plaintiff was not performing at
a level substantially equivalent to the lowest level of those of the group retained. According to a
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“Layoff Comparison Form” dated March 1, 2011, Plaintiff was “consistently the lowest
performer in the unit and the least flexible resource within his peer group.” Def.’s Mot. Summ.
J. Ex. M. His performance evaluations for the previous two years were the lowest of the five
employees in his peer group. Id. In an email exchange about whom to select for layoffs, the IT
Site Manager wrote that the second lowest performing candidate (who was also laid off) was
“still in a category well above” Plaintiff. Def.’s Mot. Summ. J. Ex. R. B&W also provided an
affidavit from Plaintiff’s direct supervisor, who stated that Plaintiff “lacked the proficiencies of
his co-workers and the skill sets he had were skills everyone else in the Help Desk also had.”
Def.’s Mot. Summ. J. Ex. C. Although Plaintiff disagrees with B&W’s characterization of his
abilities and job performance, in considering assessments of an employee’s performance, “‘it is
the perception of the decisionmaker which is relevant,’ not the self-assessment of the plaintiff.”
Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 960–61 (4th Cir. 1996) (quoting
Smith v. Flax, 618 F.3d 1062, 1067 (4th Cir. 1980); see also Hill v. Augusta Cnty. Sch. Bd., 636
F. Supp. 2d 492, 495 (W.D. Va. 2009).
With respect to the fourth element, Plaintiff has not shown that the company retained
individuals who were substantially younger than he was who were performing at a lower level
than he was. Given that the evidence shows that Plaintiff was the lowest-performing member of
his peer group is correct, logically Plaintiff cannot satisfy this element. In any event, only one
individual retained on the Help Desk team after the layoffs was younger than Plaintiff. Wendy
Brooks was thirty-seven years old at the time of the layoffs, making her both substantially
younger than Plaintiff and outside of the class protected by the ADEA. The same Layoff
Comparison Form mentioned above shows that Brooks was performing better than Plaintiff. Her
job performance evaluations for the two years prior to the layoffs were both better than
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Plaintiff’s, see Def.’s Mot. Summ. J. Ex. M, and her supervisor stated in an affidavit that one of
the reasons Brooks was not laid off was that she “took every opportunity to improve herself and
increase her value to the company, and volunteered for leadership roles on several projects.”
Def.’s Mot. Summ. J. Ex. C. By contrast, that same supervisor stated that “unlike other
employees in [the supervisor’s] unit, [Plaintiff] worked only his set schedule and preferred to
remain in his niche, attending only to the very specific tasks with which he was comfortable
instead of taking on new responsibilities and expanding his skill set.” Id. In sum, the evidence
conclusively shows that B&W did not retain any employees younger than Plaintiff who were
performing at a level lower than he was. I find that Plaintiff has failed to make out a prima facie
case that his termination resulted from age discrimination.
B. Retaliation
Plaintiff also alleges in his Complaint that B&W unlawfully retaliated against him for
engaging in activity protected by the ADEA. According to Plaintiff, after he reported to an HR
manager that the denial of his shift change request was “pure discrimination,” Plaintiff’s direct
supervisor retaliated by refusing to grant Plaintiff’s second request to take Mondays off, delaying
approval of a request for vacation time, throwing papers at him, giving other employees higher
job performance evaluation scores, and selecting Plaintiff to be laid off. The ADEA makes it
“unlawful for an employer to discriminate against any of his employees . . . because such
individual . . . has opposed any practice made unlawful by this section, or because such
individual . . . has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation under this chapter.” 29 U.S.C. § 623(d). To establish a
prima facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in protected
activity; (2) his employer took adverse action against him; and (3) a causal connection existed
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between the protected activity and the adverse action. Causey v. Balog, 162 F.3d 795, 803 (4th
Cir. 1998); Kerney v. Mountain States Health Alliance, 894 F. Supp. 2d 776, 782 (W.D. Va.
2012).
Assuming without deciding that Plaintiff’s complaint to the HR manager constituted
protected activity, I find that Plaintiff has failed to produce any evidence that shows a causal
connection between the protected activity and the allegedly adverse actions taken against him.3
Under the ADEA, Plaintiff must show that B&W took adverse action against him because he
engaged in protected activity. Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 657 (4th Cir. 1998). As discussed above, the evidence presented by the parties
conclusively shows that Plaintiff was laid off for the legitimate, non-discriminatory reason that
he was performing at a level lower than the others in his peer group. Just as Plaintiff has not
presented any evidence that he was laid off because of his age, he has also not presented any
evidence that he was laid because he complained about discrimination.
Nor has Plaintiff presented any evidence that his vacation request was denied in
retaliation for his complaint about “pure discrimination.” Rather, the record shows that the
vacation request was initially denied because Plaintiff had not accumulated enough hours to earn
the number of days off he desired; once he worked the extra hour that was necessary, his request
was approved. Finally, although Plaintiff claims other employees received better performance
evaluations than he did because of retaliation, he has not presented any evidence that supports his
3
B&W does not and cannot dispute that a layoff constitutes adverse action. For the purposes of this discussion, I
will assume that the denial of vacation benefits also constitutes adverse action, since it would materially alter the
terms and conditions of employment in such a way that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Wells v. Gates, 336 F. App’x 378, 383 (4th Cir. 2009) (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). However, I find that Plaintiff’s allegations that
his supervisor threw papers at him, even if true, do not rise to the level of an adverse employment action. See White,
548 U.S. at 68 (finding that the purpose of the anti-retaliation provision in the ADEA is to prevent employers from
engaging in actions that are likely to deter employees from reporting discrimination, and “normally petty slights,
minor annoyances, and simple lack of good manners will not create such deterrence”).
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claims or that contradicts the evidence presented by B&W. Because Plaintiff has not presented
any evidence showing a causal connection between protected activity and adverse employment
actions against him, I conclude that Plaintiff has failed to make out a prima facie case of
retaliation.
C. Hostile Work Environment
Plaintiff states in his Complaint that taken together, the incidents described above created
a hostile work environment. The Fourth Circuit has consistently “assumed, without deciding,
that a hostile work environment claim is generally cognizable under the ADEA for plaintiffs age
forty or older.” Baqir v. Principi, 434 F.3d 733, 746 n.14 (4th Cir. 2006); Burns v. AAFMcQuay, Inc., 166 F.3d 292, 294 (4th Cir. 1999); Causey v. Balog, 162 F.3d 795, 801 n.2 (4th
Cir. 1998). To prevail on a hostile work environment claim, a plaintiff must prove four
elements: “(1) he experienced unwelcome harassment; (2) the harassment was based on his . . .
age; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his
employment and to create an abusive atmosphere; and (4) there is some basis for imposing
liability on the employer.” Baqir, 434 F.3d at 745–46. Even assuming that Plaintiff experienced
unwelcome harassment, there is nothing in the record that would permit a reasonable finder of
fact to conclude that any such harassment was based on age or that it was sufficiently severe or
pervasive to alter the conditions of Plaintiff’s employment. In fact, Plaintiff has not presented
any evidence at all that would support his claims. Accordingly, I conclude that B&W is entitled
to summary judgment as a matter of law.
IV. CONCLUSION
For the foregoing reasons, I will grant B&W’s motion for summary judgment. An
appropriate order accompanies this memorandum opinion.
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The Clerk of the Court is hereby directed to send a certified copy of this memorandum
opinion and the accompanying order to Plaintiff and all counsel of record.
19th
Entered this ________ day of August, 2013.
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