United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Henry alleges that Vencore Services and Solutions, Inc.
discharged him because of his age and/or in retaliation for
his protected activity, in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621. Doc.
1. Vencore has filed a motion for summary judgment, doc. 25,
which is fully briefed and ripe for consideration, docs. 26;
27; 30; 31; 32. After reading the briefs, viewing the
evidence, and considering the relevant law, the court finds
that the motion is due to be denied with respect to the
discharge discrimination claim and granted in all other
LEGAL STANDARD FOR SUMMARY JUDGMENT
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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.” Fed.R.Civ.P.
56. “Rule 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(internal quotations omitted). A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
summary judgment, the court must construe the evidence and
all reasonable inferences arising from it in the light most
favorable to the non-moving party. Id. at 255. Any
factual disputes will be resolved in the non-moving
party's favor when sufficient competent evidence supports
the non-moving party's version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278
(11th Cir. 2002). However, “mere conclusions and
unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citing Bald Mountain Park, Ltd. v. Oliver,
863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a]
mere ‘scintilla' of evidence supporting the
opposing party's position will not suffice; there must be
enough of a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at
receiving an engineering degree in 1959, Henry embarked upon
a long career in the aerospace industry performing stress
analysis. Doc. 27-1 at 2-3. As a stress analysis engineer
Henry determined the structural integrity of various
aircrafts by performing geometric calculations by hand. Docs.
27-1 at 2-5; 27-2 at 69. He retired in 1992 at age fifty
seven, but returned to the workforce after the 2008 financial
crisis. Doc. 27-1 at 3. So in 2010, at age seventy four,
Henry accepted a position with Vencore performing stress
analysis for the U.S. Army's OH-58 helicopters.
his first few years, Henry received superb work evaluations
and loved his work, stating that it was the “best job
[he] ever had.” Doc. 27-2 at 39, 93, 100, 102. Things
changed when Henry complained to his supervisor, Tony Page,
that one of his younger coworkers was harassing him because
of his age. Page informed Henry that other employees had
similar complaints about this employee and that he would
speak with the employee. Doc. 27-2 at 53-56. Because the
harassment continued, Henry filed a charge with the Equal
Employment Opportunity Commission in November, 2013. Doc.
27-3 at 25. The charge also alleges age discrimination due to
Vencore's promotion of a younger, less qualified employee
instead of Henry. Id. Page knew about the EEOC
charge and attended a meeting with the human resources staff
to discuss it. Doc. 27-2 at 5, 18.
this time, Vencore shifted several of its employees,
including Henry, to different projects as a result of
government budget cuts. Doc. 27-2 at 20-21. At some point
between February and April 2014,  Page transferred Henry to
the CH-47 helicopter project, under the supervision of Cliff
Myers. Docs. 27-1 at 7-11; 27-2 at 20-23. Henry claims that
one of the first questions Myers asked him was whether Henry
had “plans to retire.” Doc. 27-1 at 13. Although
he does not specifically remember asking this question,
Myers-who is just two years younger than Henry-admits that he
may have asked about Henry's retirement plans “in
passing” or as part of “casual
conversation.” Doc. 27-3 at 9, 23.
transfer resulted in Henry receiving primarily menial
assignments that did not require any stress analysis. Docs.
27-1 at 7-11; 27-2 at 20-21. Henry complained to Myers, who
agreed that Henry's new assignment was “dog
work” and “not the most fun.” Doc. 27-3 at
7-8. Although he was not thrilled with the work, Henry
continued to dutifully perform his obligations and received
positive evaluations. Docs. 27-1 at 16; 27-2 at 111-31.
Despite the positive reviews, Vencore discharged Henry, aged
79, two and a half years after transferring him to the CH-47
project. Docs. 27-1 at 3, 35; 31-5 at 1.
cites the Army's budget cuts to the CH-47 program as the
basis for Henry's discharge. Apparently, after receiving
notice of the cuts, Greg Oelberg, a program manager,
concluded that “it would be necessary to reduce by one
the number of engineers” working on the CH-47 program.
Doc. 27-4 at 2. As a result, Oelberg directed Page, who
ultimately “get[s] to pick who stays and goes” in
the programs under his control, doc. 27-2 at 27, to recommend
one of the CH-47 employees for discharge, docs. 27-2 at 5,
78-80. To make his decision, Page asked Myers, the supervisor
of the team, to list employees “from most to least
essential, ” adding “I think I know, but want to
compare lists.” Docs. 27-2 at 5, 78-80. In the list
Myers prepared, he ranked Henry last out of the five
employees on the team. Doc. 27-2 at 79. At the time, Henry
was between seventeen to twenty eight years older than the
other four team members, and had as many or more years of
experience at Vencore as them. Doc. 31-5 at 1. Myers
testified that he did not use any objective factors to rank
the employees and created the list purely on his own view of
each employee's “capability.” Doc. 27-3 at
19. Myers later modified his testimony, however, to add that
he considered “capability and knowing how to do a
finite element analysis.” Doc. 27-3 at 20.
second round of Army budget cuts caused Vencore to lay off
several other employees in 2016, including Gary Whitfield-who
is seventeen years younger than Henry and also worked on the
CH-47 project. Docs. 27-2 at 28-38; 31-5 at 1. Vencore
subsequently rehired Whitfield for the CH-47 project. Doc.
27-2 at 27-28.
complaint pleads age discrimination (Count I) and retaliation
(Count II). Doc. 1. Specifically, Henry asserts that Vencore
transferred him to the CH-47 project and ultimately
discharged him because of his age and/or in retaliation for
his EEOC charge. Id. Vencore has moved for summary