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Zimmerman v. Vectronix, Inc.

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

December 15, 2017

VECTRONIX, INC. and OPTICS 1, INC., Defendants.

          Hon. Ivan D. Davis



         This matter comes before the Court on Defendants' Motion for Summary Judgment. Dkt. No. 22. Discovery in this case closed on September 29, 2017. While Defendants Hied the instant motion on August 30, 2017, the Court received supplemental briefing following the close of discovery. The Court has thoroughly considered the extensive briefings 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 Mr. Zimmerman were pretextual. Accordingly, Defendants' Motion for Summary Judgment is GRANTED. A separate order has issued. Dkt. No. 75.

         I. BACKGROUND

         Prior to merging with Optics 1 in 2016, Vectronix sold integrated, handheld module and precision systems for observation, detection, location, and targeting solutions, including original equipment manufacturer (OEM) modules designed for integration into other products. Statement of Undisputed Material Facts ¶ 2-3. Prior to merging with Vectronix in 2016. Optics 1 was a wholly owned research and development subsidiary of Vectronix. Id. Plaintiff Corey Zimmerman was born in 1952. Id. ¶ 1. In 2011, defendant Vectronix hired Zimmerman, at the age of 58. as a Business Development and Sales Engineer. Id. ¶ 5. Zimmerman did not meet sales goals for his position. Id. In 2016, Zimmerman had a sales target of $15.4 million. Id. ¶ 6. lie achieved approximately $7 million in sales that year. Id., ¶ 7. At the same time, Vectronix was experiencing years of repeated losses. Id. ¶ 9. Total revenue fell from S62.4 million in 2013 to $38.5 million in 2016. In 2016 alone, Vectronix lost $16.2 million. Id.

         In 2016, Vectronix and Optics 1 began the process of merging, which involved combining sales teams from each company. Id. ¶ 11. Prior to the merger, Vectronix employed eight personnel on the sales team and Optics 1 employed five. Id. Based on projected sales and market conditions, the companies determined that the combined sales team would require eight employees, thus necessitating a reduction in force (RIF). Id. To carry out the RIP, management evaluated which individuals would be best positioned to grow the business and maximize the effectiveness of the merged company. Id. ¶ 12.

         Management determined that Bob Lachancc, the director of sales for Optics 1 prior to the merger, would lead the merged sales team. Id. ¶ 14. Only one OEM sales position would exist on the merged sales team, titled ''Business Development Manager, OEM Solutions.'' Id. ¶ 15. Shannon Larbig, an Optics 1 legacy employee under Mr. Lachance. was selected for the position and Mr. Zimmerman was terminated in the reduction in force, id.

         Ms. Larbig completed interviews with Optics 1 in June 2016 and joined the sales team in October 2016. Id. ¶ 13. Ms. Larbig is under the age of 40. Additional Statement of Disputed Material Facts ¶ 9. Prior to joining Optics 1, Ms. Larbig had worked in OEM sales in another military contracting company, selling a specific OEM product. Statement of Undisputed Material Facts 1[ 12. She had seven years of OEM sales experience prior to joining Optics 1. Id. ¶ 13. During her time with her previous employer, Ms. Larbig grew military sales by 30% and brought in $6.5 million in OEM module sales in 2015. more than tripling her sales goal. Id. ¶ 12.

         At no time prior to the merger, during the merger, or following Mr. Zimmerman s termination did anyone affiliated with Vectronix or Optics 1 refer to Mr. Zimmerman's age. Id. ¶ 19.


         Summary 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." Bouchai v. Baltimore Ravens Football Club, Inc., 346 F.3d 514. 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby. Inc., 447 U.S. 242, 247-248 (1986)) (emphasis in original).

         Terminations on the basis of age implicate the Age Discrimination in Employment Act of 1967 (A DBA). In an ADEA ease, the plaintiff bears the burden of demonstrating that age was the but-for cause of plaintiff s 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 claim 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 which, if met, shifts the burden to the defendant to prove a non-discriminatory 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).

         In the context of an RIF, a modified prima facie test applies. Establishing the prima facie case where termination was part of a reduction in force requires the plaintiff to demonstrate 1) he was in the protected age group. 2) he was discharged. 3) he was per forming at a level substantially equivalent to the lowest level of those of the group retained, and 4) the process of selection produced a residual work force of persons in the group containing substantially younger persons who were performing at a level lower than that at which he was performing. Stokes v. Westinghouse Savannah River Co., 206 F.3d 420. 430 (4th Cir. 2000) (citing Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315 (4th Cir. 1993). This framework is applicable at the summary judgment stage. Mitchell at 1317, III. DISCUSSION

         Because the parties agree that there is no direct evidence of age discrimination, Mr. Zimmerman's claim falls under the burden-shifting framework at McDonnell Douglas. Because Vectronix terminated Mr. Zimmerman pursuant to a reduction in force, the Court finds the modified prima facie framework of Mitchell applicable. Under this framework and undisputed facts of the case. Defendants are entitled to summary judgment for two reasons. First. Plaintiff is unable to prove a prima facie case of age discrimination because he cannot demonstrate that he was performing at substantially the same level as Ms. Larbig, the retained employee, or that the residual workforce consisted of substantially younger employees performing at a lower level than he was. Second, even if Plaintiff were able to establish a prima facie case. Defendants ...

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