United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
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
following facts are taken from the parties' Local Rule
56(B) statements and are undisputed 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 ¶
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.)
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.)
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
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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 ¶ 55.) In response
to this ...