James Bruce Jones v. BE&K Engineering Co. , 146 F. App'x 356 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 19, 2005
No. 05-10062 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00496-CV-CO-S
JAMES BRUCE JONES,
Plaintiff-Appellant,
versus
BE&K ENGINEERING COMPANY,
a subsidiary of BE&K, Inc.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 19, 2005)
Before BIRCH, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
James Bruce Jones appeals the district court’s grant of summary judgment to
BE&K Engineering Company (“BE&K”), in his lawsuit alleging age
discrimination in violation of the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seq. For the following reasons, we conclude that the district
court did not err in granting summary judgment to BE&K.
I. BACKGROUND
Jones, a fifty-nine year old man, was discharged by BE&K, a privately held
design-firm, in a reduction-in-force (RIF) on September 18, 2001. Jones worked
for BE&K for approximately twenty-two years. Jones spent most of those years in
BE&K’s Mechanical Service Department designing HVAC, plumbing, and fire
protection equipment. Though Jones is not a degreed engineer, in addition to his
on-the-job experience, he had taken several engineering courses at Auburn
University.
At the time of the layoff, Jones worked alongside three other employees in
the department: (1) Billy Martin, also a HVAC designer; (2) David Lowery, a
professional engineer; and (3) Greg Vu, an engineer. Martin, a longtime employee
in the protected age group,1 was also terminated as part of the RIF, whereas
Lowery and Vu were retained.2 Vu, a substantially younger employee, recently
1
The ADEA limits its protection to those who are 40 or older. 29 U.S.C. § 631(a).
2
Lowery was also in the protected age group.
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had earned his engineering degree and had completed three of the four steps to
becoming a professional engineer. Steve Fleming was the manager of the
Mechanical Services Group and reported to A.C. Bogaty, who was the manager of
Design Engineering and the one who made the decision to terminate Jones.
Due to adverse economic conditions, BE&K had been experiencing a
reduction in the workload for its HVAC department. In addition, BE&K’s clients
were increasingly demanding that BE&K employ degreed engineers in various key
areas of the projects. Thus, in response to client demand, the department was
moving in the direction of exclusively using degreed engineers. Bogaty
determined that it was more cost-efficient to eliminate the HVAC design positions
and subcontract out such work and to continue to hire new engineers throughout
the department for other types of work.
Jones, along with his co-worker Martin, filed age discrimination complaints
against BE&K, alleging that their discharge was based on their age, and that their
positions were filled by a younger employee. In accordance with the BE&K
handbook, their cases were sent together to arbitration. At the arbitration hearing,
Bogaty testified that he did not intend to discriminate against older employees, but
that the company did its best to bring in a “young engineer periodically.”
Fleming testified that BE&K decided to keep George Vu because Vu had an
engineering degree, which made him more valuable to the company. At the
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hearing, Fleming was asked about his deposition testimony, wherein he stated that
“George Vu was a young engineer with a lot of potential, and [BE&K decided to]
retain his capability for a number of different reasons, flexibility for one.” He
clarified at the hearing that neither Vu’s age nor Jones’s age was a factor in the
decision to fire Jones and that he meant “young” as a descriptive term.
After the completion of the arbitration hearing, the Arbitrator denied both
claims. Jones subsequently filed a motion to reopen the case, which was granted
by the district court. BE&K then filed for summary judgment. In support of its
motion, BE&K submitted Bogaty’s affidavit, which revealed that out of the
employees retained in the Mechanical Services Department after Jones’ layoff,
seventy-four percent of the employees were forty or older, and thirty-seven percent
were fifty or older. The district court granted BE&K’s summary judgment motion.
Jones now appeals.
II. DISCUSSION
We review de novo the district court’s order granting summary judgment.
Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996). Summary judgment
is appropriate where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c).
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment
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because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff may establish
a claim of discrimination under the ADEA by using either direct or circumstantial
evidence of discrimination. See Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226
(11th Cir. 1993). The district court found that Jones could not make out a case
based on either direct or circumstantial evidence. Jones avers that the district court
erred in making that finding.
A. Direct Evidence
Jones argues that he proffered direct evidence in the form of statements
made by Fleming and Bogaty. The statements to which Jones is referring were
made during the arbitration hearing and did not refer to statements made during the
decisionmaking process. In order to constitute direct evidence, the evidence must
directly relate in time and subject to the adverse employment action at issue. See
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998)
(“[R]emarks . . . unrelated to the decisionmaking process itself are not direct
evidence of discrimination.”); see also Scott v. Suncoast Beverage Sales, Ltd., 295
F.3d 1223, 1227-28 (11th Cir. 2002) (concluding, in a Title VII race discrimination
suit, that the statement “We’ll burn his black ass” was not direct evidence of
discrimination where it was made two and half years prior to plaintiff’s
termination). Because the statements here were made subsequent to the RIF and
did not refer to statements made during the decision-making process, the
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statements are not direct evidence of age discrimination.
B. Circumstantial Evidence
Jones argues in the alternative that the district court erred when it found that
he did not establish a prima facie case of age discrimination based on
circumstantial evidence. To evaluate claims based on circumstantial evidence of
discrimination, we use the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d
207 (1981). See Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000).
Specifically, in a RIF case and where a position is eliminated in its entirety:
the plaintiff establishes a prima facie case [of age discrimination] by
demonstrating (1) that []he was in a protected age group and was adversely
affected by an employment decision, (2) that []he was qualified for [his]
current position or to assume another position at the time of discharge, and
(3) evidence by which a fact finder could reasonably conclude that the
employer intended to discriminate on the basis of age in reaching that
decision.
Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir. 2003). Here, there
is no dispute that Jones was in the protected age group or that he suffered an
adverse employment action. Nevertheless, the district court concluded that Jones
failed to establish a prima facie case, because, under the second requirement, he
could not show that he was qualified for another position at the time of the RIF
and, under the third requirement, he could not show that there was evidence of
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discriminatory intent.
Upon review of the record, we conclude that the district court erred in its
analysis of the second requirement because at the time of the RIF, Vu and Jones
were doing the same jobs, and thus, Jones could prove that he was qualified to
assume another position. Even though Vu’s education arguably gave him more
flexibility for the future in the company, at the time of the RIF, Vu took over the
same tasks for which Jones had been responsible. Thus, Jones was qualified for
Vu’s position and Jones can establish the second prong of the prima facie case.
The district court, however, properly concluded that Jones failed to show
any evidence of intent to discriminate. To establish intent, Jones needed to proffer
evidence that could lead a factfinder to conclude that “(1) [the] defendant
consciously refused to consider retaining a plaintiff because of his age, or (2) [the]
defendant regarded age as a negative factor in such consideration.” Allison v.
Western Union Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982). The evidence in
the record established that BE&K chose to terminate Jones and retain Vu because
Vu’s engineering degree made him more valuable for the future needs of the
company and more suited to the demands of BE&K’s clients. Therefore, because
Jones could not show that BE&K had an intent to discriminate against him based
on his age, he could not establish a prima facie case of age discrimination and,
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thus, summary judgment was proper.3
III. CONCLUSION
For the foregoing reasons, the district court’s grant of summary judgment for
BE&K is AFFIRMED.
3
Because we conclude that Jones could not establish a prima facie case of age
discrimination we need not address whether BEK proffered a legitimate, non-discriminatory
reason for its decision. See Chapman, 229 F.3d at 1024.
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