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Henry v. Vencore Services and Solutions, Inc.

United States District Court, N.D. Alabama, Northeastern Division

March 23, 2018

KEITH HENRY, Plaintiff,



         Keith 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 respects.


         Under 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).

         At 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 252)).


         After 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. Id.

         During 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.

         Around 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, [2] 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.

         The 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.

         Vencore 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.”[3] Doc. 27-3 at 20.

         A 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.

         III. ANALYSIS

         Henry's 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 ...

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