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Simard v. Unify, Inc.

United States District Court, E.D. Virginia, Alexandria Division

July 15, 2016

UNIFY, INC., Defendant.



         This matter is before the Court on Defendant Unify Inc.'s ("Unify" or "Defendant") Motion for Summary Judgment [Dkt. 34]. For the following reasons, the Court grants Defendant's Motion for Summary Judgment, and enters judgment in favor of Defendant and against the Plaintiff, Frederic Simard ("Simard" or "Plaintiff").

         I. Background

         The following facts are taken from the parties' Local Rule 56(B) statements and are undisputed[1] unless otherwise indicated. Unify is a global communications and software firm with an office in Reston, Virginia. (SOF, ¶¶ 1-2.) On June 1, 2012, Unify hired Plaintiff, then 40 years of age, to work at its Reston, Virginia office as its Vice President of Pricing, Strategy, and Policy. (Id.) In the summer of 2014, Plaintiff interviewed, and was selected for a new role as the Senior Vice President, Portfolio Management for Unify. (Id. at ¶¶ 3-7.) The new role carried no increase in compensation. (Id. at ¶ 9.)

         In 2014, Unify began a major transformation of its business strategy and its product lines. (Id. at ¶ 10.) This transformation was designed in part to enhance Unity's ability to successfully target millennials in the marketplace. (Id. at ¶¶ 11-12.) Part of this transformation was a major global restructure and reduction in force. (Id. at ¶ 13.)

         Towards the end of 2014, Dean Douglas ("Mr. Douglas"), Unity's CEO, was introduced to a recent college graduate, Phillip Brown ("Mr. Brown"), by a mutual friend. (Id. at ¶ 15.) Mr. Douglas thought highly of Mr. Brown's character, and when Mr. Brown told Mr. Douglas that he was interested in working for a technology company like Unify, Mr. Douglas decided to help Mr. Brown find a job with Unify. (Id. at ¶ 16.) Mr. Douglas sent Mr. Brown's resume to Unity's Chief Marketing Officer, Bill Hurley ("Mr. Hurley"), and another Senior Vice President at Unify, Jon Pritchard ("Mr. Pritchard"), to see if they could find a position for Mr. Brown. (Id. at ¶ 17.) Mr. Douglas had no specific role in mind for Mr. Brown, but wanted to see if Unify had a need for him. (Id.) Both Mr. Pritchard and Mr.Hurley indicated that they could use Mr. Brown in their organizations. (Id.) Mr. Douglas followed up with Mr. Hurley about the possibility of using Mr. Brown in conjunction with a new product variously referred to as either "Ansible" or "Circuit", which was designed to target millennial customers. (Id. at ¶¶ 12, 18-19.)

         At the time, there was very little generational diversity at Unify. (Id. at ¶ 20.) As of June 2014, only eight percent (8%) of the United States based employees in Mr. Hurley's marketing team were under the age of 40. (Id. at ¶ 21.) Only fourteen percent (14%) of Unity's United States based employees company-wide were under the age of 40. (Id.) Part of Mr. Brown's appeal to Mr. Douglas and Mr. Hurley was that he might bring a new, generationally diverse, millennial perspective to the marketing team. (Id. at ¶ 22.) Although Mr. Brown was a recent college graduate and had limited experience in the workplace, Mr. Hurley felt that his team could mentor him and develop his skills to become a significant part of Unity's workforce. (Id. at ¶ 24.)

         Because Mr. Hurley thought Mr. Brown would be a good fit, Mr. Hurley sent an email to Plaintiff on or before October 16, 2014 to determine whether Plaintiff could find a position for Mr. Brown focused on selling Circuit. (Id. at ¶ 25.) Plaintiff worked under Mr. Hurley at Unify. Mr. Hurley emphasized to Plaintiff that he thought Mr. Brown would be a good fit for the Circuit program in large part because of his youth and his perspective as a millennial. (Id. at ¶ 27-28.) Plaintiff replied that he looked forward to meeting Mr. Brown and began working on a draft of a job description for a position for Mr. Brown. (Id.) Mr. Hurley did not explicitly order or tell Plaintiff to release anyone currently employed by the company in order to make room for Mr. Brown. (Id. at ¶ 30.)

         Plaintiff contends that the effect of the new hire at a time when the company was undergoing a reduction in force was necessarily that an existing employee would be displaced, but he points to no evidence that Mr. Hurley ever instructed him to release either an older employee or an employee over the age of 40 to make room for Mr. Brown. (Pl.'s Mem. in Opp'n [Dkt. 37] at 3.) An email sent by Plaintiff on November 11, 2014 clarifies that Mr. Brown was not being considered as a replacement for any existing or recently terminated Unify employee, but was being considered for a newly created position which was already accounted for in the 2015 budget. (SOF at ¶ 31.) Plaintiff never asked Mr. Hurley or anyone else if he would have to terminate an older, existing employee to accommodate Mr. Brown's hire. (Id. at ¶ 33.)

         Plaintiff sent Mr. Hurley a job description for a new position to be called "Solutions Marketing Specialist", which Mr. Hurley then forwarded to Mr. Brown. (Id. at ¶¶ 34-35.) Mr. Brown responded that he was interested, and Mr. Hurley asked Plaintiff to begin working on bringing Mr. Brown on-board at Unify. (Id. at ¶¶ 36-37.) Plaintiff agreed that he would initiate contact with Mr. Brown. (Id.)

         Plaintiff set up an interview for Mr. Brown with Unity's Vice President, Portfolio Management, North America, Diane Salvatora ("Ms. Salvatora"). (Id. at ¶¶ 38-39.) On November 4, 2015, Ms. Salvatora reported back to Plaintiff that while she thought Mr. Brown would be a good college hire, he was not a match for the position she had in mind. (Id.) On November 9, 2014, Mr. Hurley asked Plaintiff if he had offered Mr. Brown a position yet. (Id. at ¶ 40.) Plaintiff responded that he had not, but the Vice President of Global Solution Marketing, Jan Hickisch ("Mr. Hickisch"), would be interviewing Mr. Brown for a role on a Circuit marketing team under Mr. Hickisch's direction. (Id.) Mr. Hurley never interviewed Mr. Brown, instead relying on Plaintiff to advance the candidate and provide feedback. (Id. at ¶ 42.)

         On November 10, 2014, Plaintiff contacted a recruiter at Unify, John Marshall ("Mr. Marshall"), to help him pull together an offer letter for Mr. Brown. (Id. at ¶ 44.) On November 14, 2014, Plaintiff emailed Mr. Marshall asking him to assist with getting an offer to Mr. Brown as soon as possible. (Id. at ¶ 46.) Plaintiff copied Mr. Brown on this e-mail.(Id.)

         Three days later, on November 17, 2014, Mr. Marshall informed Plaintiff that he had completed a salary computation recommending a starting salary of $60, 000, and asked Plaintiff if he had spoken with Mr. Brown about a starting salary or start date yet. (Id. at ¶ 47.) Later that same day, Plaintiff unilaterally instructed Mr. Marshall to hold off on the recruitment of Mr. Brown due to "new budget calculations . . . making it impossible to proceed for the time being." (Id. at ¶ 48.) Plaintiff then asked Mr. Marshall to contact Mr. Brown and advise him they could not proceed with the hiring. (Id.)

         After receiving the unexpected news that there was no position for him at Unify, Mr. Brown reached out to Plaintiff expressing concern over the lack of an offer and asking about "budgetary issues" which Mr. Marshall had referenced in his email to Mr. Brown informing him that the position for which he was being considered would go unfilled. (Id. at ¶ 49.) Mr. Brown and Plaintiff had a telephone conversation regarding the decision not to hire Mr. Brown, and Mr. Brown followed up with an email thanking Plaintiff for his support and asking Plaintiff to consider him for any future positions. (Id. at ¶ 50-51.)

         At no point prior to telling Mr. Brown that his hire was being placed on indefinite hold did Plaintiff express any concerns to Mr. Hurley about being unable to hire Mr. Brown for any reason, budgetary or otherwise. (Id. at ¶ 52; PI.'s Mem. in Opp'n at 3-4.) On November 18, 2014, Mr. Brown emailed Mr. Douglas explaining that he had been informed by Plaintiff that Unify would be unable to hire him for budgetary reasons. (SOF, ¶ 53, 54.) Mr. Douglas was blindsided by this news. (Id.) Mr. Douglas was disappointed by this news, as everything he had heard regarding the prospective hire of Mr. Brown up to this point had been positive. (Id. at ΒΆ 55.) In response to this ...

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