United States District Court, E.D. Virginia, Alexandria Division
TIMOTHY E. TWEED Plaintiff,
RAPPAHANNOCK REGIONAL JAIL, et al. Defendants.
Liam O'Grady Judge
matter comes before the Court on Plaintiffs Motion for
Summary Judgment (Dkt. No. 44) and Defendants' Motion for
Summary Judgment (Dkt. No. 58). Discovery in this case closed
on September 28, 2017. The Court has thoroughly considered
the briefings, giving additional attention and consideration
to Mr. Tweed's pro se filings, and dispensed with oral
arguments. For the following reasons, the Court finds that
Plaintiff has failed to carry his burden to prove a prima
facie case for age discrimination under the ADEA and that
Plaintiff is unable to show that Defendant's
non-discriminatory reasons for terminating Plaintiff were
pretextual. An accompanying order has already issued (Dkt.
Timothy Tweed has sued the Rappahannock Regional Jail (RRJ),
the RRJ Authority, and four RRJ employees in their individual
and official capacities alleging Mr. Tweed was terminated
from his position as a probationary correctional officer (CO)
because of his age in violation of the Age Discrimination in
Employment Act (ADEA). Am. Compl. 1-4. RRJ hired plaintiff
Mr. Tweed on September 29, 2014 to serve as a CO.
Defendants' Motion for Summary Judgment Statement of
Material Facts Not in Dispute ¶¶ 1-2. Mr. Tweed was
40 or older when he was hired. RRJ initially rejected Mr. Tweed
for employment. Plaintiffs Motion for Summary Judgment
Statement of Facts ¶ A. Mr. Tweed wrote to RRJ to
inquire if age was a factor in its decision not to hire him.
Id. ¶ B. Subsequently, RRJ hired Mr. Tweed.
Id. COs are hired on a probationary basis for twelve
months and may be terminated for any reason during that
time." Defendants' Motion for Summary
Judgment Statement of Material Facts Not in Dispute
¶¶ 3, 5. During the course of a CO's probation,
the RRJ supervisors conduct four, eight, and eleven month
performance evaluations. Id. ¶ 6. Mr. Tweed
received his four month performance evaluation in January
2015, where he received a score of 2.5, below standards and
defined as "job performance reflects a need for
improvement." Id. ¶¶ 7-10. As a
result of this score, Mr. Tweed was transferred to another
unit to give him the opportunity to be evaluated by a
different supervisor for his eight month evaluation.
Id. ¶¶ 11-12. In his eight month
evaluation, Mr. Tweed received a score of 2.1. Id.
¶ 15. Based on this score, supervisors recommended RRJ
terminate Mr. Tweed's employment and RRJ did so.
Id. ¶ 17.
contributing to Mr. Tweed's poor evaluations were failing
to perform routine tasks such as conduct timely security
check, record those checks, maintain activity logs, enforce
inmate discipline, and, critically, maintain officer safety.
Id. ¶ 19.Specific conduct included falsifying
log records, allowing inmates to walk behind him, leaving his
panel logged in but unattended in the presence of inmates,
and entering confined spaces with inmates. Id.
¶¶ 20, 22. Mr. Tweed received both written and
verbal warnings regarding his conduct. Id. ¶
21. In March 2015, Mr. Tweed was suspended for failing to log
security checks, failing to complete security checks, and
falsely documenting security checks. Id. ¶ 22.
After his suspension, Mr. Tweed received another reprimand
regarding security checks. Id. ¶ 23.
Tweed disputes many of these facts but only on the basis of
the purported inadmissibility of the underlying evidence or
in an immaterial way, such as debating dates of events.
See Response to the Statement of Material Facts Not
in Dispute ¶¶ 2-35. Ultimately, the questions of
fact at this stage in the case are only questions of
immaterial fact - specifically when a four-month and
eight-month performance evaluation is to be conducted, who is
to conduct a termination meeting, and what kind of process is
afforded to probationary employees who are receiving poor
performance evaluations. The Court finds that none of these
facts is material to the elements of an ADEA case. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) ("Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment").
judgment will be granted where, viewing the facts in a light
most favorable to the non-moving party, there remains no
genuine issue of material fact. Fed. R. Civ. Pro. 56(c);
Marlow v. Chesterfield Cty. Sch. Bd. 749 F.Supp.2d
417, 426 (E.D. Va. 2010). Conclusory assertions of state of
mind or motivation are insufficient. Goldberg v. B. Green
& Co., 836 F.2d 845, 848 (4th Cir. 1988). As the
Supreme Court has held, "the mere existence of
some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no
genuine issue of material fact."
Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 441 U.S. 242, 247-248 (1986))
(emphasis in original).
on the basis of age implicate the Age Discrimination in
Employment Act of 1967 (ADEA). In an ADEA case, the plaintiff
bears the burden of demonstrating that age was the but-for
cause of plaintiffs termination. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 176-177 (2009). In cases
where there is no direct evidence of age discrimination, a
plaintiff may still prevail in an ADEA under the
McDonnell-Douglas framework. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). The framework
consists of a four-part prima facie test: 1) that the
plaintiff suffered an adverse employment action 2) that the
plaintiff was at least forty years old when that action
occurred, 3) that the plaintiff was performing his duties at
a level that met his employer's legitimate expectations
at the time of the adverse employment actions, and 4) the
plaintiffs position remained open or was filled by similarly
qualified applicants outside of the protected class.
Miles v. Dell, Inc.. 429 F.3d 480, 485 (4th Cir.
this prima facie case shifts the burden to the defendant to
prove a nondiscriminatory reason for the termination.
Id. If the defendant satisfies its burden, the
plaintiff may still prevail if the plaintiff can demonstrate
that the established non-discriminatory reason was merely
pretextual. Lettieri v. Equant Inc., 478 F.3d 640,
646-47 (4th Cir. 2007).
there is no direct evidence that RRJ terminated Mr. Tweed
because of his age, Mr. Tweed has appropriately pleaded the
reasons for his firing as pretextual. See Final Am.
Compl. ¶ 14. Accordingly, the Court finds the
McDonnell Douglas framework applicable to resolving
the instant motions. Under this framework, the Court finds
that Mr. Tweed is unable to establish a prima facie case
because he is unable to establish that he was performing his
duties at a satisfactory level that met legitimate
expectations at the time he was fired and because there are
no facts before the Court as to how Mr. Tweed was replaced.
The Court further finds that, even if Mr. Tweed were able to
establish a prima facie case of age discrimination,
Defendants have offered a wholly believable and
non-discriminatory reason for Mr. Tweed's termination -
his unsatisfactory performance - and discovery has not
yielded any evidence suggesting that reason to be pretextual
or unworthy of credence. As such, Defendants are entitled to
Tweed was at least forty years when he was fired from his
probationary position as a CO with the RRJ, establishing
elements one and two of the prima facie case of age
discrimination under the McDonnell Douglas
framework. Mr. Tweed is unable to establish that he was
performing his duties at a level that met his employer's
legitimate expectations at the time of the adverse employment
actions because there is extensive documentation over the
entire course of Mr. Tweed's short employment of Mr.
Tweed's failure to perform at a satisfactory level,
evidenced by his low performance evaluations, his suspension,
and the documented evidence of policy violations, all during
his period as a probationary employee. Mr. Tweed has not
rebutted this evidence with a showing that other COs who were
retained by the RRJ had the same kind low performance
evaluations, suspensions, and policy violations.