Buckner v. Lynchburg Redevelopment and Housing Authority

Filing 37

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on June 15, 2017. (sfc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

JEFFREY L. BUCKNER,

CASE NO. 6:16-CV-00070
Plaintiff,
v.

MEMORANDUM OPINION

LYNCHBURG REDEVELOPMENT & HOUSING
AUTHORITY,
JUDGE NORMAN K. MOON
Defendant.
Plaintiff Jeffrey Buckner brings a failure to hire claim under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”) against Defendant Lynchburg
Redevelopment and Housing Authority. Plaintiff alleges that Defendant discriminatorily hired a
younger mechanic instead of himself, despite the fact that he had more relevant skills and
experience than the younger candidate. Defendant argues that Plaintiff was overqualified for the
position at issue, which was essentially unskilled manual labor. Defendant seeks summary
judgment on Plaintiff’s failure to hire claim on the ground that Plaintiff’s overqualification was a
legitimate reason not to hire him.
The Court will grant Defendant’s motion for summary judgment. Defendant has
presented evidence supporting its legitimate overqualification rationale for not hiring Plaintiff –
namely, that he would not have been happy in the role and he would have cost too much.
Plaintiff has not met his burden of demonstrating that Defendant’s proffered reasons were
pretextual. Further, even if Plaintiff were successful in demonstrating pretext, there is
insufficient evidence in the record to permit a reasonable trier of fact to conclude that age
discrimination was the “but-for” reason for Defendant’s failure to hire Plaintiff.
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I.

Facts
Defendant Lynchburg Redevelopment and Housing Authority is a political subdivision of

the Commonwealth of Virginia that owns and operates several low income housing properties.
(Dkt. 28-2 ¶2). Plaintiff worked for Defendant for a number of years tending to the maintenance
needs of Defendant’s properties. (See dkts. 28-7; 28-13).
In December 2013, Defendant terminated Plaintiff’s employment for budgetary reasons.
(Dkt. 28-4 ¶¶ 6, 7).1 Defendant had decided to eliminate one Mechanic II position, and Plaintiff
was let go because he was the lowest rated of the three Mechanic IIs. (Dkts. 28-4 ¶6, 28-5 ¶1-2).
A Mechanic II is a skilled position that requires working independently, while a Mechanic I
generally serves more as manual labor and often works as a helper for a Mechanic II. (Dkts. 28-5
¶ 5, 28-19 at 19, 28-4 ¶ 16; 29-4 at 44). One of the factors that made Plaintiff the lowest rated
Mechanic II was his comparably weaker HVAC skills. (Dkt. 32-3 at 19, 21, 23). Employees of
Defendant provided Plaintiff with two positive letters of recommendation following his
termination. (See dkts. 28-7, 28-8).
In September 2014, a Mechanic I working for Defendant resigned, and Defendant
decided to fill that vacant position. (Dkt. 28-4 ¶10). Maintenance Manager Loren McGarrahan,
age 61, advertised the vacant position as “entry level” and “semi-skilled” and that its salary
would be “commensurate with experience.” (Dkts. 28-1; 28-5 ¶ 5). McGarrahan was seeking to
hire someone with compensation in the range of $10-12 per hour. (Dkt. 28-5 ¶ 5).
Plaintiff, 52 at the time, applied for the Mechanic I position on October 10, 2014. (Dkt.
28-8 ¶¶ 36-37). In his application, he highlighted his “20 years’ experience” and training and

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Plaintiff originally brought a wrongful termination claim, but it was untimely and was
voluntarily dismissed. (See dkt. 18).
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certificates that he had received that were relevant to the position. (Dkt. 28-13). McGarrahan saw
Plaintiff’s application and concluded he was overqualified for the position. (Dkt. 28-5 ¶ 8).
McGarrahan was aware that Plaintiff made $17.43 per hour working for Defendant as a
Mechanic II prior to his termination. (Id.) The decision was also based on the belief that Plaintiff
would have been unhappy in the Mechanic I role because of his extensive experience in more
skilled positions. (Dkt. 29-3 at 28). McGarrahan informed Executive Director Dawn Fagan of his
assessment, and Fagan agreed. (Dkt. 28-5 ¶ 8.) Plaintiff was not hired for the position.
Prior to Plaintiff’s application, Clyde Dixon — Plaintiff’s former colleague as a
Mechanic II — spoke to maintenance foreman Keith Jackson about the possibility of hiring back
Plaintiff. (Dkt. 28-18 at 28). According to Dixon, “[Jackson] said they may want someone
younger. They put it up there (the position) as an entry level person.” (Dkt. 28-2 at 2). It is
undisputed that Jackson was not in a position to make the hiring decision for the Mechanic I
vacancy. (See dkts. 28-5 ¶ 7; 28-19 at 12). Instead, McGarrahan was the primary decisionmaker
on hiring, although he also needed financial approval from his supervisor, Executive Director
Fagan, and Assistant Director Bill Canfield. (Id.; dkt. 32-3 at 15, 30).2 Jackson denies ever
making the alleged statement to Dixon. (Dkt. 28-6 ¶5).
On September 25, 2014 Will Suddith (36 at the time) applied for the Mechanic I position.
(Dkt. 29-11).3 He was hired for the position in November 2014. (Dkt. 28-4 ¶ 12). Suddith had

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McGarrahan had the necessary building and maintenance experience to evaluate the
qualifications of candidates for the Mechanic I position. (Dkts. 29-4 at 31; 29-3 at 28–30).
Fagan, without any such experience, essentially delegated the hiring decision to McGarrahan.
(Id.)
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The record merely reflects that Suddith was “younger” (see dkt. 29-2 ¶ 18) than Plaintiff,
but did not state his exact age. Defense counsel stipulated at oral argument that Suddith was 36 at
the time.
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some experience working in the HVAC field, primarily as a manual laborer. (Dkt. 32-3 at 29).
Suddith made $10.60 an hour when he left this HVAC position. (Dkt. 28-4 at ECF 7). Suddith
did not have any relevant certifications, nor did he have a high school diploma or GED. (Dkt. 2911). Maintenance foreman Keith Jackson knew Suddith personally and recommended him to
McGarrahan for the job. (Dkts. 28-6 ¶3, 28-5 ¶ 6). McGarrahan interviewed Suddith, determined
he was qualified for the position, and hired him at $12.01 per hour with approval of Fagan in
November 2014. (Dkts. 28-5 ¶7, 28-4 ¶12).
Plaintiff filed a charge of age discrimination with the EEOC on March 25, 2015. (Dkt.
28-3). The EEOC was made aware of much of the relevant evidence before the Court, including
Mr. Jackson’s alleged statement, yet still concluded that the evidence failed to support age
discrimination because it indicated that Plaintiff was overqualified for the entry level position.
(Dkts. 28-2, 28-16).
II.

Standard of Review
Federal Rule of Civil Procedure 56(a) provides that a court should grant summary

judgment “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” “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). In
order to preclude summary judgment, the dispute about a material fact must be “‘genuine,’ that
is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). If, however, the evidence of a genuine issue of material fact “is merely colorable or is not
significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 250. In

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considering a motion for summary judgment under Rule 56, a court must view the record as a
whole and draw all reasonable inferences in the light most favorable to the nonmoving party.
See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322–24 (1986); Shaw v. Stroud, 13 F.3d 791,
798 (4th Cir. 1994).
III.

Discussion
The standard for proving age discrimination is “high,” in that a plaintiff must prove the

discrimination was “the but-for cause” of his failure to be hired. Arthur v. Pet Dairy, 593 F.
App’x 211, 219–21 (4th Cir. 2015); Foster v. Univ. of Maryland-E. Shore, 787 F.3d 243, 251
n.13 (4th Cir. 2015) (citing Arthur for the proposition that “a plaintiff who makes out a prima
facie case of ADEA discrimination must still prove that ‘his age was the but-for cause of his
termination’”); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176-77 (2009) (describing but-for
standard). In other words, that causal relationship exists if the defendant’s discriminatory animus
was a “necessary logical condition” for the adverse action taken and that the defendant did not
act “because” of some other, legitimate motivation. Gross, 557 U.S. at 176. However,
discrimination “need not be the sole cause of the adverse employment action” in order to be
unlawful under the ADEA. Arthur, 593 F. App’x at 220. Rather, the inquiry is whether
discriminatory reasons “animate[d]” or “played a role in . . . and had a determinative influence
on” the employment decision. Arthur, 593 F. App’x at 220; Gross, 557 U.S. at 176
“Evidence of but-for causation may be direct or circumstantial.” Ramos v. Molina
Healthcare, Inc., 603 F. App’x 173, 179 (4th Cir. 2015) (citing Gross, 557 U.S. at 177–78).
However, “direct evidence of age discrimination may not always be sufficient to create a
question of fact for trial in the ADEA context.” Arthur, 593 F. App’x at 221 (quoting Scheick v.
Tecumseh Pub. Sch., 766 F.3d 523, 531–32 (6th Cir. 2014)). Instead, considering both

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circumstantial and direct evidence the “focus is on whether the plaintiff has provided sufficient
evidence to cast doubt upon the employer’s stated reasons for the employment action, such that a
reasonable juror may find age was the determinative factor in that decision.” Arthur. 593 F.
App’x at 221.
a. McDonnell Douglas Framework
i. Prima Facie Case
Parties attempting to prove age discrimination may proceed under the pretext framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).4 Under this framework, Plaintiff
must first establish a prima facie case of Defendant’s discriminatory failure to hire. “To establish
such a prima facie case, a plaintiff must demonstrate that: (1) he was a member of a protected
class, i.e., that he was at least 40 years old; (2) his employer had an open position for which he
applied and was qualified; (3) he was rejected despite his qualifications; and (4) the position
remained open or was filled by a similarly qualified applicant who was substantially younger
than the plaintiff, whether within or outside the class protected by the ADEA.” Laber v. Harvey,
438 F.3d 404, 430 (4th Cir. 2006). At oral argument, the parties agreed that Plaintiff has made
out a prima facie case, and the Court concurs. Further, the primary issue of whether Plaintiff was
“overqualified” is best addressed under the framework of Defendant’s legitimate reasons for not
hiring him and whether they were pretextual. See Sembos v. Philips Components, 376 F.3d 696,
701 (7th Cir. 2004) (“Although that means Sembos was qualified for purposes of the prima facie

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Here, Plaintiff has elected to proceed under the McDonnell Douglas burden shifting
framework rather than through direct evidence of discrimination. See Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (“Generally speaking, a plaintiff may
avert summary judgment and establish a claim for intentional sex or age discrimination through
two avenues of proof.”).
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case, once the burden shifts to Philips, Sembos’ over-qualification constitutes a legitimate, nondiscriminatory reason for rejecting him for the open positions.”).
ii. Legitimate, Non-Discriminatory Reasons
Once the plaintiff has established the prima facie case, “the burden shifts to the employer
to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). Defendant’s stated
reason for failing to hire Plaintiff is that he was “overqualified.” (Dkt. 28 at 8; see also dkts. 28-3
¶ 11; 28-4 ¶ 8). Although not yet addressed by the Fourth Circuit, several circuits have accepted
overqualification as a legitimate reason to not hire an older worker under the ADEA. See
E.E.O.C. v. Ins. Co. of N. Am., 49 F.3d 1418, 1420 (9th Cir. 1995) (“[I]f ICNA’s rejection of
Pugh was truly based on its belief that he was overqualified for the position at issue, ICNA did
not violate the ADEA.”); Binder v. Long Island Lighting Co., 933 F.2d 187, 192–93 (2d Cir.
1991) (“The ADEA does not forbid employers from adopting policies against “underemploying”
persons in certain positions so long as those policies are adopted in good faith and are applied
evenhandedly.”); Sembos, 376 F.3d at 701 (7th Cir. 2004) (“[The defendant/employer] was
nonetheless entitled to summary judgment because [the plaintiff] was overqualified for the
job.”).
However, stating that someone is “overqualified” on its own lacks sufficient meaning to
be a legitimate reason for not hiring an individual. It is like saying someone is a bad “fit” for a
job — even if true, it requires further explanation. Accordingly, courts addressing
overqualification have consistently held that there must be some objective reason why the

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excessive qualifications are a negative trait.5 Examples of such objective reasons include higher
salaries, job dissatisfaction, overanalyzing problems, and the likelihood that the applicant will
quickly move on to a different job that better meets their qualifications.6 Without these more
objective reasons, “overqualified” could easily be used as a meaningless label to discriminate
against individuals on the basis of their age. See Taggart v. Time Inc., 924 F.2d 43, 47–48 (2d
Cir. 1991) (“Denying employment to an older job applicant because he or she has too much
experience, training or education is simply to employ a euphemism to mask the real reason for
refusal, namely, in the eyes of the employer the applicant is too old.”); Stein v. Nat’l City Bank,
942 F.2d 1062, 1065–66 (6th Cir. 1991).
Here, Defendant articulates, and the evidence supports, two objective reasons for why
Plaintiff overqualification was a negative trait: (1) he may have cost too much, and (2) he would
have been unhappy in the position. (See dkts. 28 at 8; 31 at 9; 31-1 ¶ 5; 28-1; 29-3 at 28).
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See Ins. Co. of N. Am., 49 F.3d at 1420 (“Although the ADEA does not prohibit rejection
of overqualified job applicants per se, courts have expressed concern that such a practice can
function as a proxy for age discrimination if ‘overqualification’ is not defined in terms of
objective criteria.”); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 118 (2d Cir. 1991)
(“The problem addressed in those cases is that a conclusory statement that a person is
overqualified may easily serve as a mask for age discrimination.”) (internal quotation marks
omitted).
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See Binder, 933 F.2d at 192–93 (“[A] trier would be free to conclude that Kelleher was
acting out of a genuine desire to avoid placing Binder in a job in which he might be frustrated,
exhibit low morale and perform poorly.”); Bay, 936 F.2d at 118 (“Dissatisfaction in a
downgraded position is a legitimate reason for an employer to replace an employee with
someone not distracted by such dissatisfaction.”); Stein v. Nat’l City Bank, 942 F.2d 1062,
1065–66 (6th Cir. 1991) (“The goal of defendant's hiring policy is to reduce turnover by hiring
those individuals most likely to remain employed for a prolonged period of time. The policy
furthers this goal in two ways: by preventing the employment of individuals who will become
bored quickly because of their level of qualification; and by not hiring those individuals who are
capable of obtaining other, perhaps better paying, jobs shortly after employment.”); Ins. Co. of N.
Am., 49 F.3d at 1420–21 (“Merkel explained that he feared that someone with Pugh's extensive
background in the loss control field would delve too deeply into the accounts to which he would
be assigned. He explained that if Pugh became too involved in uncomplicated risks, he would
impose upon insureds’ time to an inappropriate degree.”).
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Accordingly, Defendant has articulated a legitimate reason for its failure to hire Plaintiff for
purposes of the McDonnell Douglas framework, and thus shifts the burden to Plaintiff to prove
that those reasons were pretextual.
iii. Pretext
At this stage, Plaintiff “must demonstrate that the employer’s proffered reason was false,
and that age discrimination was the real reason for the adverse employment action.” Ramos, 603
F. App’x at 179 (citing Reeves v. Sanderson Plumbing, 530 U.S. 133, 146-47 (2000)). Plaintiff
puts forth several arguments for why Defendant’s legitimate reasons were pretextual. Plaintiff
argues that Defendant’s overqualified justification is flawed because it is inconsistent to
terminate him for lacking HVAC skills (i.e. he was underqualified), yet not hire him because he
had too much experience (i.e. he was overqualified). Plaintiff also asserts that Suddith was
unqualified for the job, thus casting doubt onto whether Defendant was evaluating the candidates
based on their qualifications or on their age. Finally, Plaintiff argues that being overqualified is
not a sufficient rationale for not hiring a skilled older worker.
None of these arguments are persuasive. It is perfectly consistent for Plaintiff to be
evaluated negatively for the higher-skilled Mechanic II position because he lacked certain skills,
while also being judged ineligible for the low-skilled Mechanic I position for having an excess of
skills and experience. They are simply different positions with different hiring considerations.
Further, Plaintiff’s argument that Suddith was not qualified is unsupported by the record.
The position was low-skilled manual labor, often working under the direction of another. (Dkts.
28-5 ¶ 5, 28-19 at 19, 28-4 ¶ 16; 29-4 at 44). Suddith had experience working as a manual
laborer in the related HVAC field, and had impressed McGarrahan with his character and
personal skills. (Dkts. 29-5 at 29-30; 31-1 ¶¶ 2,3). There is no evidence on the record that

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indicates these qualifications are insufficient under McGarrahan’s understanding of the
requirements for the job, or under the requirements articulated in the job description that a
Mechanic I be “entry level,” “semi-skilled,” and have “some experience” in the trades of
“plumbing, electrical, HVAC, painting, drywall repair, light carpentry, door & window repairs.”
(Dkt. 28-1 (emphasis added)).
Plaintiff also asserts that simply labeling someone as “overqualified” is not a legitimate
reason to fail to hire them. As a general matter, the Court agrees. Overqualified is defined as
“having more education, training or experience than a job calls for,” which does not necessarily
have a negative connotation. Webster’s Collegiate Dictionary 830 (10th ed. 1994). Further, the
case law addressing the topic of overqualification (see footnotes 5 and 6, supra) also points to
the rule that an overqualification defense must have some objective criteria attached to it.
What Plaintiff misses with his argument, however, is that the record reflects that such
objective criteria were present here. It is undisputed that Executive Director Fagan’s
understanding of the reason for failing to hire Plaintiff was that he would not have been happy in
the lower level position because he was overqualified. This understanding is supported by other
evidence on the record such as the facts that Plaintiff was formerly a Mechanic II, that Plaintiff
would now need to be supervised by his former Mechanic II peers, and that Plaintiff’s duties
would include a significant amount of manual labor, even though he had dedicated decades of his
life to obtain skills that went far beyond those of an unskilled laborer. The belief that an
overqualified person would not be happy in a job is a legitimate reason not to hire them. See
Binder, 933 F.2d at 192–93; Bay, 936 F.2d at 118. Such unhappiness might naturally lead to a
poor attitude or early departure for a job that is a better fit, neither of which are desirable traits in
an employee.

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Evidence also demonstrates that Plaintiff’s anticipated salary demands played a role in
not hiring him. (See dkt. 31-1 ¶ 5). The record shows that McGarrahan sought to hire someone in
the $10-12 per hour range, while Plaintiff’s previous rate with Defendant had been $17.43. (Id.)
The position was also advertised as having “[s]alary commensurate with experience.” (Dkt. 281). The record shows that both McGarrahan and Fagan were aware of these considerations at the
time of the hiring decision. (Id.; dkt. 28-4 ¶ 11). Even if Defendant could have hired Plaintiff at a
$12 per hour rate, his past salary and experience suggest that he would have been unhappy with
his compensation, again raising reasonable concerns that he was not an appropriate hire for the
position. (See dkt. 31-1 ¶ 5).
Plaintiff essentially asks the Court to put itself in Defendant’s position and make a
determination that, based on the evidence, Defendant should have hired Plaintiff instead of
Suddith. However, “it is not our province to decide whether the reason was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the plaintiff’s [adverse employment
action].” Dugan v. Albemarle Cty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002). Each applicant
had his own positive attributes. Plaintiff had greater mechanical skills and experience, while
Suddith would likely require lower pay, was less likely to be unhappy in or leave the position,
and came recommended by his potential boss, Keith Jackson. There is no evidence to show that
Defendant’s choosing Suddith for the reasons stated was pretext for age discrimination, rather
than just unwise in Plaintiff’s view.
Finally, even if Plaintiff were successful in showing pretext, he has not put forth
sufficient evidence that his age was the “but-for” cause of the adverse action here. See Gross,
557 U.S. at 176. Plaintiff argues that Keith Jackson’s comment that Defendant was seeking

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someone younger for the position is sufficient evidence of the necessary causation to preclude
summary judgment. The Court disagrees.
The evidence is uncontested that Jackson was not a decisionmaker for the failure to hire
Plaintiff. (See dkt. 32-4 at 12-13). Further, Plaintiff had not even applied at the time of Jackson’s
statement. (Dkt. 29-5, at 352). Therefore, Jackson could not have been communicating his
understanding of McGarrahan or Fagan’s position on Plaintiff because those decisionmakers did
not even know Plaintiff was considering applying at the time. Instead, the statement represented
Jackson’s opinion on the suitability of older workers for the entry level position. That a nondecisionmaker had the belief that entry level positions were not appropriate for older and
experienced workers such as Plaintiff has no probative value as to whether the decisionmakers
here failed to hire Plaintiff because of his age. Thus, Plaintiff has failed to meet the “high” butfor causation standard necessary for an ADEA claim. Arthur, 593 Fed. App’x at 219.
IV.

Conclusion
Even considering the evidence in the light most favorable to Plaintiff, no reasonable trier

of fact faced with this evidence would find that Plaintiff’s age was the but-for cause of his failure
to be hired by Defendant. Plaintiff has failed to present sufficient evidence that would permit a
reasonable jury to infer that Defendant’s rationales for not hiring him were pretextual. Further,
Plaintiff has failed to provide any probative evidence that his age was the but-for reason he was
not hired. For these reasons, Defendant’s motion for summary judgment will be GRANTED and
Plaintiff’s claim will be DISMISSED. An appropriate order will issue.
15th
Entered this ____ day of June, 2017.

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