UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2091
ALEXANDER HARRIS,
Plaintiff - Appellant,
v.
POWHATAN COUNTY SCHOOL BOARD, Powhatan County, Virginia,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John A. Gibney, Jr.,
District Judge. (3:11-cv-00224-JAG)
Argued: September 17, 2013 Decided: October 22, 2013
Before GREGORY, DAVIS, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Davis
and Judge Keenan concurred. Judge Davis wrote a separate
concurring opinion.
ARGUED: Barbara Allyn Queen, LAWRENCE & ASSOCIATES, Richmond,
Virginia, for Appellant. Stacy Leann Haney, REED SMITH, LLP,
Richmond, Virginia, for Appellee. ON BRIEF: D. Patrick Lacy,
Jr., REED SMITH LLP, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
Alexander Harris appeals the district court’s order
granting summary judgment in favor of the Powhatan County School
System (“Board”) on his claims for age and race discrimination.
For the following reasons, we affirm in part, vacate in part,
and remand.
I.
After fifty-two years of employment with the Board, Harris’
position was eliminated on March 10, 2009. J.A. 518-20.
Harris, a seventy-two year-old African American, began his
employment with the school district in 1957 as a custodial
worker. J.A. 148. He gradually worked his way up through
several supervisory positions and, most recently, was promoted
to be Director of Maintenance and Custodial Services by the
Current Division Superintendent, Dr. Margaret Meara. J.A. 146-
58. According to his job description, Harris’ responsibilities
included the following: scheduling work orders; reviewing the
quality of work performed by subordinates; assisting skilled
workers on difficult tasks; maintaining inventory of equipment;
planning and carrying out a preventative maintenance program;
recruiting, training, and evaluating staff; assisting with
budget preparation; and performing other duties assigned by the
Superintendent. J.A. 558-59.
2
As with most school employees, Harris’ employment was
limited by law to annual contracts. J.A. 218-19; Va. Code Ann.
§ 22.1-91. This meant that each fall Harris had to fill out an
intent to return form, indicating whether he wished to return
for the following year. In November 2008, Harris completed the
form, representing that he wanted to remain in his current
position for the 2009-2010 school year. He returned the form to
Paul Imig, his supervisor and the financial director for the
district. J.A. 482. Imig, however, did not submit the notice
as normal; instead, he held it over in order to have discussions
with Harris about retiring. J.A. 483. Around the same time,
Imig told Harris that his position might be eliminated even if
he wished to return. J.A. 222. Dr. Meara testified that Imig
told her in January or February 2009 that Harris had expressed
to him a desire to retire at the end of the year. J.A. 47.
Harris disputes telling Imig that he wanted to retire. J.A.
225. Dr. Meara also testified that she raised the issue with
Harris herself, and that he stated he was ready to retire, but
only on the condition that he receive money he believed was owed
to him. J.A. 48.
Harris alleges that he had an agreement with the school
system, dating back to a prior superintendent’s tenure, that he
would be paid an unused portion of his annual leave upon
retirement. J.A. 168. Ordinarily, school system employees are
3
not allowed to carry over annual leave in excess of forty-eight
days. J.A. 431-32. Harris claims that his agreement entitled
him to additional compensation for annual leave he accrued
during the summer months when he was not permitted to take
vacations due to his responsibilities in readying the schools to
open at the start of each year. J.A. 168-69. Harris estimates
that he lost $19,500 over the years. J.A. 241-42.
On January 29, 2009, Dr. Meara received a letter from
Harris stating that he was “considering retirement in the near
future and would like to check into the recovery of the amount
of annual leave that I have lost over my tenure.” J.A. 434. On
February 2, 2009, Imig sent a memorandum to Dr. Meara
recommending that Harris’ position be eliminated, noting that it
would save the school system approximately $100,000 per year.
J.A. 435. Imig wrote that Harris had informed him of his
intention to retire, and that he was waiting for Harris to
complete the necessary paperwork. At a February 10, 2009
meeting, the Board considered a proposal to eliminate fourteen
staff positions, including Harris’. 1 The 2009-2010 budget
1
The parties dispute when the Board first took up the
matter of eliminating Harris’ position. Harris contends that it
was discussed during the January 27, 2009 meeting, a date which
is significant because it would mean that his position was
eliminated prior to Harris’ letter to Dr. Meara. However, as
the Board points out, the proposal is included in the minutes of
(Continued)
4
ultimately adopted by the Board included the proposed staff
reductions. J.A. 429. Each of the three maintenance or
custodial positions eliminated, including Harris’, was occupied
by an individual over the age of seventy. Id.
On March 4, 2009, Dr. Meara sent an e-mail to the Board
recommending that Harris’ position be formally eliminated as of
July 1, 2009. J.A. 514. In a second e-mail sent March 8, 2009,
Dr. Meara informed the Board that, although Harris had expressed
his intent to retire, he would not leave voluntarily unless he
received a large sum of money. J.A. 513. Dr. Meara
communicated her opinion that Harris was holding the Board
hostage because “everyone is afraid of what he and his friends
will do.” Id. In her deposition, Dr. Meara clarified that she
meant that Harris would take his complaints to friends in the
NAACP. J.A. 78. On March 10, 2009, the Board voted to
eliminate Harris’ position from the 2009-2010 budget. J.A. 518-
20. The minutes from that meeting list Harris as having
retired. J.A. 525.
On March 16, 2009, Dr. Meara and Rose Studivant, the
director of personnel for the school district, met with Harris
the February 10 meeting and appears to have been discussed then.
J.A. 505.
5
to discuss his retirement. J.A. 85. Studivant states that
Harris again expressed that he wished to retire, but that it
remained contingent on being compensated for his unused leave.
J.A. 457. After Harris continued to make it known that he
intended to return to work the following year unless he was paid
for the leave time, Dr. Meara wrote him a letter informing him
that his position had been eliminated and that if he wished to
return he could apply for a new position. J.A. 550.
To account for the elimination of the position, the Board
reassigned Harris’ supervisory duties to Russell Wilson, a
younger Caucasian man who was already employed by the school
system, as well as two other members of the maintenance
department. J.A. 433, 459. Wilson was given a $10,000 stipend
for his additional responsibilities. J.A. 463.
Harris filed suit against the Board alleging violations of
Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Age
Discrimination in Employment Act (“ADEA”). J.A. 17-20. The
district court granted the Board’s motion for summary judgment,
concluding that while Harris had made out prima facie cases of
race and age discrimination, he failed to show that the Board’s
stated non-discriminatory reasons for the termination were
6
pretext for discrimination. J.A. 573. Harris filed a timely
notice of appeal. J.A. 580. 2
II.
We review a district court’s grant of summary judgment de
novo, viewing the facts in the light most favorable to the non-
moving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d
111, 119 (4th Cir. 2011). We may only affirm if we conclude
that the evidence establishes that no reasonable jury could find
in the plaintiff’s favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251-52 (1986).
A.
To prevail on his ADEA claim, Harris must show that age was
the “but for” cause of his termination. See Gross v. FBL Fin.
Serv., Inc., 557 U.S. 167, 177 (2009) (rejecting “mixed motive”
theory of liability for claims brought under the ADEA). 3 Lacking
2
The district court also rejected Harris’ claim that the
Board failed to compensate him for his unused leave, finding
that no contract existed. J.A. 575-76. Harris does not pursue
this issue on appeal.
3
Harris’ argument that the “but for” standard applies only
at trial is meritless. Harris cites no authority for this
proposition, and it is contradicted by numerous court decisions
applying the “but for” standard at the summary judgment stage.
See, e.g., Sims v. MVM, Inc., 704 F.3d 1327, 1334 (11th Cir.
2013); Billingslea v. Astrue, No. 12-1528, 2012 WL 6720930, *2
(Continued)
7
direct evidence of discrimination, Harris proceeds under the
familiar burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th
Cir. 2004) (en banc) (applying McDonnell Douglas to ADEA claim).
Under this approach, “the employee, after establishing a prima
facie case of discrimination, [must] demonstrate[] that the
employer’s proffered permissible reason for taking an adverse
employment action is actually a pretext for discrimination.”
Id. As the district court found and the Board concedes, Harris
has established a prima facie case of age discrimination: he is
a member of a protected class, the elimination of his position
was an adverse employment action, he was performing his job
responsibilities adequately at the time of the adverse action,
and his job duties were assumed by an individual outside the
protected class. See Holland v. Washington Homes, Inc., 487
F.3d 208, 213 (4th Cir. 2007).
Having established a prima facie case, “the burden shifts
to the employer to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” Hill, 354 F.3d at
(4th Cir. Dec. 28, 2012); Rahlf v. Mo-Tech Corp., Inc., 642 F.3d
633, 637 (8th Cir. 2011).
8
285. If the employer successfully does so, “the burden shifts
back to the plaintiff to prove by a preponderance of the
evidence that the employer’s stated reasons ‘were not its true
reasons, but were a pretext for discrimination.’” Id. (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)).
Here, the Board offered two reasons for its elimination of
Harris’ position: (1) its belief that Harris wanted to retire,
and (2) its need to address a budgetary shortfall. We conclude
that Harris has presented sufficient evidence from which a jury
could find that both these reasons were pretext for age
discrimination.
As to the first issue, a reasonable jury could find that
Harris did not indicate a clear intent to retire. First, Harris
submitted his notice of intent to return form to Imig in
November 2008, indicating that he wished to continue working
through the 2009-2010 school year. Second, Harris flatly
disputes Imig’s testimony that he asked to be written out of the
coming year’s budget, contending that he never told Imig he
wanted to retire. Third, Harris’ January 29, 2009 letter to
Dr. Meara stated that he was merely considering retirement and
that he first wanted to inquire about the annual leave funds he
felt he was owed. Harris also contends that in his meeting with
Dr. Meara and Studivant on March 16, 2009, he continued to
9
express that he would only leave voluntarily if he received the
contested back pay amount. Viewing the record in the light most
favorable to Harris, he has demonstrated a question of fact as
to whether he expressed plans to retire.
The district court also erred when it determined that only
the belief of the Board itself – as opposed to Dr. Meara and
Imig - was relevant to determining whether the asserted reason
was pretextual. The district court held that, regardless of
Dr. Meara’s knowledge or intent, the Board genuinely, even if
mistakenly, believed that Harris wanted to retire, and that, as
the ultimate decisionmaker, only the Board’s views were
material. Title VII defines employer as “a person engaged in an
industry affecting commerce who has fifteen or more employees
for each working day . . . and any agent of such a person.” 42
U.S.C. § 2000e (2006) (emphasis added). In Hill, this Court
explained:
[A]n aggrieved employee who rests a discrimination
claim under Title VII or the ADEA upon the
discriminatory motivations of a subordinate employee
must come forward with sufficient evidence that the
subordinate employee possessed such authority as to be
viewed as the one principally responsible for the
decision or the actual decisionmaker for the employer.
354 F.3d at 291; see also id. at 290 (“Title VII and the ADEA do
not limit the discrimination inquiry to the actions or
statements of formal decisionmakers for the employer. Such a
construction of those discrimination statutes would thwart the
10
very purposes of the acts by allowing employers to insulate
themselves from liability simply by hiding behind the blind
approvals, albeit non-biased, of formal decisionmakers.”). In
her position as Superintendent, Dr. Meara, with help from Imig,
oversaw the annual budget process. The record shows that she
interacted with Board members regarding the proposed budget,
including the decision to eliminate Harris’ position. Although
final approval of the decision came only with a formal vote of
the Board, Dr. Meara recommended this action. As the day-to-day
supervisor of the school system, her recommendations on the
needs of the district and the allocation of funds would carry
significant weight. Under our precedent, it is therefore proper
to attribute Dr. Meara’s (and to a lesser extent Imig’s) motives
and knowledge to the Board. See id. at 288-89 (“Reeves informs
us that the person allegedly acting pursuant to a discriminatory
animus need not be the ‘formal decisionmaker’ to impose
liability upon an employer for an adverse employment action, so
long as the plaintiff presents sufficient evidence to establish
that the subordinate was the one ‘principally responsible’ for,
or the ‘actual decisionmaker’ behind, the action.”).
In any event, the district court was wrong to say that the
Board was completely unaware of Harris’ equivocation about his
plans. While the Board does not appear to have been privy to
the communications between Harris, Dr. Meara, and Imig, it did
11
receive an e-mail from Dr. Meara in which she discussed Harris’
hesitation to retire without receipt of the leave funds. The
March 8, 2009 e-mail, sent two days before the Board’s final
decision to eliminate the position, stated that Harris told
Dr. Meara he would not sign his retirement papers and leave
voluntarily unless he received compensation for his lost leave
time. A reasonable jury could infer that this communication
created some doubt among the Board as to Harris’ desire to
retire.
All of this is sufficient to undermine the Board’s
contention that Harris’ position was eliminated because he
wanted to retire. Although Harris’ statements about his plans
were less than crystal clear, he has managed to raise a question
of triable fact as to whether the Board legitimately believed he
intended to retire. Given the possibility that a jury could
find the Board’s proffered reason to be, at best, false or, at
worst, dishonest, the same jury could likewise conclude that the
stated justification is pretext for discrimination. See Reeves,
530 U.S. at 148 (“[A] plaintiff’s prima facie case, combined
with sufficient evidence to find that the employer’s asserted
justification is false, may permit the trier of fact to conclude
that the employer unlawfully discriminated.”).
Harris has also presented sufficient evidence casting doubt
on the Board’s second proffered rationale for the termination:
12
that the school district was facing a budget crisis and could no
longer afford to keep the position. First, Harris has shown
that he was pressured not to return for the 2009-2010 year.
Months before the March 2009 vote to approve the upcoming
budget, Imig suggested to Harris that he might not have a
position in the coming year and that he should consider
retiring. Then, when Harris submitted his notice of intent to
return form, Imig failed to sign the document and return it to
Studivant in the normal course of business. Instead, Imig held
the form over, noting in its margin his plan to have further
discussions with Harris about retiring. Imig’s attempts to
persuade Harris to leave, as well as his failure to even pass
along Harris’ written intent to return, are subject to multiple
interpretations. A jury might look at this evidence and
conclude that the Board had predetermined that Harris needed to
go, perhaps because of his increased age, and only conceived of
the budgetary rationale after failing to convince him to retire.
Moreover, we note the importance of the fact that each of
the custodial positions eliminated were occupied by individuals
over the age of seventy. 4 While it is true that younger
4
Although the record indicates that the two other
individuals retired, the validity of this list is in dispute
given that it also lists Harris as having retired, a designation
which he obviously contests. J.A. 525-26.
13
employees in other departments were also terminated, the
decision to eliminate several positions occupied by older
individuals within the same department is somewhat suspicious.
Working alongside Harris in the maintenance department, these
individuals are better comparators than the other employees
whose positions were also eliminated. A jury might conclude
from these facts that the Board used age as the deciding factor
in determining which positions to cut from this particular
department.
Lastly, Dr. Meara acknowledged that the Board never
considered the financial justification for the termination
independent of its purported belief that Harris wanted to
retire. She testified that she could not be sure whether the
position would have been eliminated anyway. J.A. 103. Indeed,
she stated that the primary reason for the termination was that
she felt Harris wanted to retire. J.A. 428. We are thus
persuaded against accepting, as a matter of law, the legitimacy
of the Board’s second proffered justification.
We note that none of Harris’ evidence leads inexorably to
the conclusion that the Board or anyone working for it possessed
a discriminatory animus toward Harris. A jury could just as
easily conclude that the Board was genuinely mistaken about
Harris’ plans, and that Imig prodded Harris to retire only
because the position was going to be eliminated regardless of
14
what Harris wanted. However, it is not our task to weigh the
evidence and make such determinations. Harris’ burden at
summary judgment “is one of production, not persuasion; it can
involve no credibility assessment.” Reeves, 530 U.S. at 142
(internal quotations omitted). When drawing all inferences in
Harris’ favor, he has provided sufficient evidence to contradict
the Board’s proffered reasons for the termination. From this
evidence of contradiction, a jury might ultimately conclude that
age discrimination was the actual reason for the termination.
B.
We now turn to Harris’ claim of race discrimination under
Title VII. It is again uncontested that Harris has established
the elements of a prima facie case: Harris is a member of a
protected class, he satisfactorily performed his job, he
suffered an adverse employment action, and he was replaced by an
individual outside the protected class. See Holland, 487 F.3d
at 213. However, Harris has failed to raise an inference that
race contributed to the Board’s decision to eliminate his
position. The sole piece of evidence adduced by Harris with
respect to race is Dr. Meara’s comment that Harris was holding
the Board hostage through its knowledge of his friends in the
NAACP. However, this statement was only made after Dr. Meara
had decided to write Harris out of the budget and refers to a
fear that Harris would use the threat of a lawsuit to collect
15
the contested back pay amount. It does not in anyway address
Dr. Meara’s or the Board’s motives in eliminating Harris’
position. On the other hand, the questions raised by Harris
regarding the Board’s proffered reasons for the termination
decision, i.e., the discrepancy over Harris’ plans to retire and
the pressure placed on him to do so, can both reasonably be said
to be related to his long tenure with the district and advanced
age. Harris has produced nothing showing a similar connection
between the Board’s decision and his status as an African-
American. Therefore, because Harris has failed to create a
genuine question as to whether race played a role in his
termination, the district court’s dismissal of his Title VII
claim must stand.
III.
For the foregoing reasons, we vacate the district court’s
entry of summary judgment in favor of the Board as to Harris’
age discrimination claim. However, we affirm the remainder of
the district court’s judgment. We remand to the district court
for further consideration consistent with this opinion.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
16
DAVIS, Circuit Judge, concurring:
I join in full Judge Gregory’s opinion for the panel. I
note simply, and more bluntly than does the majority opinion,
that the School Board’s contention that the elimination of Mr.
Harris’s position was based on a belief that Mr. Harris intended
to retire is transparently silly. An employee’s statement that
“I want to retire” hardly equates to completing the paperwork
attendant to retirement. And, Mr. Harris completed paperwork
(never processed by the responsible agents of the defendant in
the ordinary course) indicating he intended to return. Thus, the
Board’s decision to advance in this case his (inchoate and
contingent) desire to retire as a non-pretextual reason for its
adverse action significantly undermines the probity of any non-
pretextual justification for the Board’s adverse action.
Furthermore, as the majority opinion persuasively explains,
a reasonable fact finder could reasonably find that neither the
superintendent nor the Board had even begun the budgeting
process aimed at reducing personnel costs by the time the
decision to eliminate Mr. Harris’s position had crystallized.
Ante, at 14. Under the circumstances, therefore, as we hold, the
ADEA claim in this case is not resolvable at the summary
judgment stage.
17