United States District Court, E.D. Virginia, Alexandria Division
COREY ZIMMERMAN Plaintiff.
VECTRONIX, INC. and OPTICS 1, INC., Defendants.
Ivan D. Davis
O'GRADY UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
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.
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).
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).
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.
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 ...