PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 97-2104
________________________________
FILED
U.S. COURT OF APPEALS
D.C. Docket No. CV-94-30401-RV ELEVENTH CIRCUIT
09/11/98
THOMAS K. KAHN
CLERK
WILLIAM O. WATKINS,
WILLIAM R. MALLORY,
Plaintiffs-Appellants,
versus
SVERDRUP TECHNOLOGY, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________________________________
(September 11, 1998)
Before HATCHETT, Chief Judge, GODBOLD and RONEY, Senior Circuit Judges.
HATCHETT, Chief Judge:
Appellants William Watkins and William Mallory challenge the district court’s entry of
judgment as a matter of law on their claims of discriminatory discharge in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1) (1994). Finding no
substantial conflict in the evidence that appellee Sverdrup Technology, Inc., terminated Watkins
and Mallory under a bona fide – albeit unconventional – reduction-in-force plan that age did not
motivate, we affirm.
I. FACTS1
Sverdrup is a support services independent contractor of the federal government. It
provides high technological engineering services in support of research, development,
acquisition and testing of conventional weapons systems to the United States Air Force at Eglin
Air Force Base, Florida. Under a “cost plus fixed award fee” contract, Sverdrup’s Technical and
Engineering Acquisition Support Group (TEAS) performs these discrete (and often classified)
engineering tasks at the Air Force’s direction and discretion. The amount and variety of work
that TEAS performs ebbs and flows with the Air Force’s needs.2 The Air Force reimburses
Sverdrup for TEAS’s direct costs, including employees’ salaries, retirement benefits and
overhead. The contract caps Sverdrup’s profit, and the amount it actually receives corresponds
to the percentage “grade” that the Air Force assigns TEAS twice a year. In grading TEAS, the
Air Force evaluates, among other factors, its work product and management of employees’
unproductive overhead time, labeled “G-65.”
1
Unless otherwise indicated, we derive the facts from the undisputed (or insubstantially
conflicting) evidence before the jury.
2
For stability purposes, however, the Air Force attempts to assign a significant number
of long-term tasks to Sverdrup.
2
TEAS consists of eight departments. In 1988, Sverdrup hired Watkins, then age 54, and
Mallory, then age 57, as “Associate Principal Engineers” for TEAS’s Guidance and Control
Department, known as “T-60.”3 “Associate Principal Engineer” reflects a pay grade, not the
skills for which the employee is hired.4 Sverdrup considered Watkins and Mallory to be
seeker/sensor engineers, that is, critically skilled in laser radar, infra-red, visible optics or other
wavelength technology used to find and identify weapons’ targets. Specifically, it viewed
Watkins’s primary skill to be laser radar and secondary skill to be infra-red; it viewed Mallory’s
primary skill to be infra-red and secondary skill to be laser radar. The vast majority of tasks that
T-60’s director (and others) assigned to Watkins and Mallory involved application of these
critical skills. In fact, Watkins served as a task leader for the Advanced Technology Laser
Seeker System Project, or “ATLAS.”5
Beginning in late 1991, the management of TEAS – Duane Bowyers, General Manager,
and Ralph Calhoun, Deputy General Manager – learned that the Air Force’s demand for
seeker/sensor services would decrease in 1992. This decline stemmed in part from what the
government and TEAS learned from the Persian Gulf War: infra-red and laser radar guided
weapons do not function very well in smoke and at night. Thus, the Air Force changed its focus
to inertial and satellite guided weapons, systems that did not involve infra-red or laser radar
3
Bud George, then-Director of T-60, hired Watkins. Ralph Calhoun, then-Hiring
Director of TEAS, recruited Mallory. Both Watkins and Mallory became at-will employees.
4
At trial, witnesses analogized “Associate Principal Engineer” to the federal
government’s general schedule (GS) pay scale.
5
While at TEAS, Watkins worked on only one project that did not involve seeker/sensor
technology.
3
technology.6 Additionally, in the summer of 1992, the Air Force canceled the ATLAS project
due to its dissatisfaction, further reducing TEAS’s projected seeker/sensor work.
Based on these developments, TEAS found itself with a surplus of seeker/sensor
engineers and a shortage of engineers skilled in these newly emerging technologies. In May
1992, TEAS’s management, including its department directors, began exploring methods of
reducing the number of seeker/sensor engineers on staff.7 Ultimately, Bowyers decided that
TEAS had to abolish some jobs under a reduction-in-force (RIF) plan.8 To determine who to
include in the RIF, Bowyers asked the directors to submit the names of engineers in their
department who had accumulated excessive “G-65” time. Robin Reid, Director of T-60,
recommended three engineers for inclusion in the RIF: (1) Ed Friday, then-age 43; (2) Watkins,
then-age 58; and (3) Mallory, then-age 61.9
In follow-up discussions, Bowyers, Calhoun and the eight department directors discussed
Sverdrup’s RIF policy. As to each engineer recommended for discharge, management
considered his or her: (1) affected job; (2) qualifications for any open position; (3) performance
6
Witnesses referred to this new weapons development as global positioning systems
(GPS).
7
To this aim, Sverdrup terminated some employees for cause, that is, poor performance.
8
TEAS’s policy defined an RIF as “the termination of employees for reasons beyond
their control such as a lack of work because of reorganization, elimination or consolidation of
jobs or job functions, partial or complete contract termination, or reduced level of contract
effort.”
9
Within Reid’s department, Friday ranked first in “G-65” time; Watkins, ninth; and
Mallory, third.
4
evaluations; (4) personal problems; and (5) length of service.10 As the final decision-makers,
Bowyers and Calhoun accepted in part, and rejected in part, the directors’ recommendations.
Unfortunately for them, Watkins and Mallory made the cut. According to management, no long-
term seeker/sensor work existed for Watkins or Mallory; they were not well-qualified for any
available position within TEAS; Reid lacked confidence in Watkins’s performance due to the
failure of ATLAS; and Watkins and Mallory had been employed for only four years.11
In November 1992, Sverdrup implemented the RIF. It discharged eight TEAS Associate
Principal Engineers: Watkins, Mallory, Friday, and five engineers who worked in departments
other than T-60. Collectively, their ages ranged from 43 to 67. Within the same month,
Sverdrup hired ten new employees for TEAS, four of whom it assigned to T-60, and two of those
four were Associate Principal Engineers. Other than one 55-year-old engineer, the new hires
were all under 40 years of age, ranging from 24 to 35. None of these new hires, however, served
as a seeker/sensor engineer. Rather, they were critically skilled in aircraft integration, systems
integration and product manufacturing. Sverdrup did not hire a new seeker/sensor until
September 1993, and he performed tasks involving optical train design. Despite the RIF, TEAS
10
None of the engineers discharged under the RIF had worked for Sverdrup for more
than 6 years.
11
Although witnesses testified that management also considered Watkins and Mallory to
be poor performers in general, the evidence (namely their favorable performance evaluations
prior to Reid’s promotion to Director of T-60 in April 1992) presented a substantial conflict on
that point. Undisputed evidence, however, supported the finding that after Watkins’s last
favorable performance evaluation, the failure of ATLAS caused Reid to lose confidence in him.
5
experienced no net decrease in its workforce throughout November 1992.12 In fact, TEAS’s
workforce increased fifteen percent that year.13
II. PROCEDURAL BACKGROUND
Watkins and Mallory initiated this lawsuit in the United States District Court for the
Northern District of Florida, alleging that Sverdrup discharged them in November 1992 because
of their ages, in violation of the ADEA, 29 U.S.C. § 623(a)(1). The parties tried the case before
a jury. When Watkins and Mallory rested their case-in-chief, Sverdrup moved for, but the court
denied, judgment as a matter of law under Federal Rule of Civil Procedure 50(a).14 At the close
of all the evidence, Sverdrup again moved for judgment as a matter of law under rule 50(a). The
court reserved ruling and submitted the case to the jury. After deliberating for six hours, the
foreperson reported that the jury could not agree on a verdict. Initially, the court declared a
mistrial.
Two months later, however, the district court issued an order granting Sverdrup’s motion
for judgment as a matter of law. The court first rejected Watkins and Mallory’s reliance on “raw
12
TEAS’s workforce remained steady in November 1992; both on November 1 and
November 30, its workforce totaled 313.
13
On January 1, 1992, TEAS’s workforce totaled 278; on December 31, 1992, it totaled
320.
14
In denying the motion, however, the district court remarked that Sverdrup’s motion
presented “a relatively close question, and when [Sverdrup] put[s] on [its] evidence it may result
in a different decision.”
The district court did grant Sverdrup’s motion with regard to Mallory’s claim that in
revoking his post-termination access to job placement facilities and equipment, Sverdrup
retaliated against him for filing an EEOC complaint. (The district court subsequently denied
Mallory’s motion to reconsider that ruling.) Mallory appeals this judgment. Pursuant to
Eleventh Circuit Rule 36-1, we affirm without discussion.
6
. . . data” because they failed to demonstrate its statistical significance. Next, the court viewed
the evidence as “overwhelming” and one-sided that “the RIF was a legitimate response to the
expressed desires and reduced needs of the Air Force, and not a pretext for intentional age
discrimination.” Finally, the court concluded that no reasonable jury could find that Sverdrup
included Watkins and Mallory in the RIF on the basis of their ages because no more than a
scintilla of evidence showed that they were similarly situated to younger engineers hired during
the month of the RIF.
III. ISSUE
The only issue we address is whether the district court erred in granting Sverdrup’s
motion for judgment as a matter of law at the close of all the evidence presented at trial on
Watkins’s and Mallory’s discriminatory discharge claims arising under the ADEA. The standard
of review is de novo, and “we employ the same standard as the district court used in determining
whether to grant the motion.” Walker v. Nationsbank, N.A., 53 F.3d 1548, 1555 (11th Cir.
1995). Like the district court, we must view “all the evidence in the light most favorable to the
nonmoving [parties],” Watkins and Mallory. Broaddus v. Florida Power Corp., No. 96-3262,
slip op. at 3348 (11th Cir. July 10, 1998). The district court correctly granted Sverdrup’s motion
if no reasonable jury could find in favor of Watkins and Mallory. See Fed. R. Civ. P. 50(a)(1).
The district court should have denied Sverdrup’s motion only if Watkins and Mallory
“provide[d] more than a mere scintilla of evidence” so as to create a “substantial conflict in
evidence to support a jury question” on all the essential elements of their claim. Tidwell v.
Carter Products, 135 F.3d 1422, 1425 (11th Cir. 1998) (quoting in part Carter v. City of Miami,
870 F.2d 578, 581 (11th Cir. 1989)) (internal quotation marks omitted).
7
IV. DISCUSSION
Under the ADEA, it is unlawful for an employer “to discharge any individual . . . because
of such individual’s age.” 29 U.S.C. § 623(a)(1) (1994). Where, as here, the employer produces
evidence that it discharged the plaintiff during a RIF, “the plaintiff establishes a prima facie case
by demonstrating (1) that he was in a protected age group and was adversely affected by an
employment decision, (2) that he was qualified for his current position or to assume another
position at the time of discharge, and (3) evidence by which a fact finder reasonably could
conclude that the employer intended to discriminate on the basis of age in reaching that
decision.” Williams v. Vitro Services Corp., No. 97-2518, slip op. at 3248 (11th Cir. July 1,
1998) (footnote omitted); see also McCorstin v. United States Steel Corp., 621 F.2d 749, 752-54
(5th Cir. 1980) (if a case involves an RIF, the court should not apply mechanistically the
traditional prima facie age discrimination test, namely the element that employer “replaced”
plaintiff with an individual under forty years of age) (Kravitch, J.). The burden of production
then shifts to the employer, who must articulate at least one legitimate, non-discriminatory
reason for discharging plaintiff. E.g., Tidwell, 135 F.3d at 1426 (employer successfully
“proffered its RIF as a legitimate, nondiscriminatory reason for terminating [plaintiff],
eliminating the presumption of discrimination that attached to [plaintiff’s] prima facie case”). Of
course, the employer’s “burden is production not persuasion. . . . The ultimate burden of
persuasion remains at all times with plaintiff.” Eastland v. Tennessee Valley Auth., 704 F.2d
613, 619 (11th Cir.), modified in part on reh’g on other grounds, 714 F.2d 1066 (11th Cir.), cert.
denied, 465 U.S. 1066 (1983). To this aim, plaintiff’s ensuing “burden of proving [that the
employer’s proffered explanation is pretextual] merges with the plaintiff’s ultimate burden of
8
proving that age was a determining factor in his discharge, and it can be met by showing that a
discriminatory reason more likely than not motivated the employer’s decision, or by discrediting
the employer’s proffered explanation.” Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th
Cir. 1993). Under the latter approach, plaintiff must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find [all of those reasons]
unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(internal quotation marks and citation omitted), cert. denied, 118 S. Ct. 685 (1998).
Because of the procedural posture of this case, we assume, without deciding, that
Watkins and Mallory presented prima facie cases of age discrimination. See Tidwell, 135 F.3d
at 1426 n.1 (in reviewing district court’s decision on employer’s motion for judgment as a matter
of law at the close of all the evidence, appellate court’s task “is not to revisit whether the
plaintiff below successfully established a prima facie case of discrimination[]”). Likewise, no
dispute exists that Sverdrup met its burden of production, that is, it proffered the RIF – including
the reasons behind its implementation and plaintiffs’ inclusion in it – as a facially legitimate,
non-discriminatory reason for discharging plaintiffs. Presently, then, we focus on whether
Watkins and Mallory presented sufficient evidence for a reasonable jury to find that the RIF was
a pretext for intentional age discrimination.
Our review of the record reveals no such jury question. First, the data concerning
employment activity at TEAS in November 1992 – the only real affirmative evidence of age
discrimination that Watkins and Mallory presented in their case-in-chief – lacked sufficient
depth, specificity and probative value to constitute both prima facie and pretext evidence. See
9
Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir. 1987) (“[A] plaintiff may not . .
. merely rest on the laurels of her prima facie case in the face of powerful justification
evidence offered by the defendant.”); accord Maddow v. Procter & Gamble Co., 107 F.3d
846, 852 (11th Cir. 1997) (“Evidence offered in the prima facie case may be sufficient to
raise a genuine issue of material fact regarding pretext.”) (emphasis added). To be sure,
Watkins and Mallory did not attempt to establish prima facie cases of age discrimination
through statistics. See Earley v. Champion Int’l Corp., 907 F.2d 1077, 1079-81 (11th
Cir. 1990) (plaintiff may establish a prima facie case of age discrimination “by
demonstrating through statistics a pattern of discrimination”; although “ninety-eight
employees at [the paper mill facility where plaintiffs worked] lost jobs as a result of [a]
reduction in force[,]” and “many” employees were older and younger than plaintiffs,
“[i]nsufficient data [existed] to prove a pattern of discrimination”); see also Maddow, 107
F.3d at 850, 852 (plaintiff raised jury question of pretext through expert’s statistical
analysis that disparity in ages of employees hired had “less than a one in one thousand
chance of having randomly occurred” even though it did not account for applicants’
individual recruiting scores because employer “failed to rebut” this circumstantial, and
plaintiff’s direct, evidence of discrimination). Among other shortcomings, they failed to
establish any statistical significance to the data. See, e.g., Benson v. Tocco, Inc., 113
F.3d 1203, 1209-10 (11th Cir. 1997) (plaintiff-Archambault raised jury question of
pretext in part through expert’s “statistically significant” conclusion that employer
10
terminated workers over 40 years-of-age at 5, and workers over 50 years-of-age at 3,
times the rate that it terminated younger workers during the RIF); see also, e.g., Eastland,
704 F.2d at 625 (regression analysis insufficient to establish prima facie case of racial
discrimination in promotions because of “the weakness of the theoretical foundation and
the failure to control for job category”).15
At best, the data that plaintiffs presented to the jury painted an incomplete picture.
Watkins, a lay witness, testified that Sverdrup terminated 8 TEAS “Associate Principal
Engineers” – all over 40 years-of-age, the average being 56.6 – in the same month that it
hired 10 new TEAS engineers – just one over 40 years of age, 55, the average being 33.7.
He additionally observed that the average age of the 3 T-60 engineers that Sverdrup
discharged was 54.4, while the average age of T-60’s 4 new hires was 30.9. Noticeably
absent from Watkins’s mathematical observations, however, was the fact that TEAS
retained scores of employees well over forty years-of-age after the RIF. Indeed, no
witness calculated the average age of TEAS’s (and/or T-60’s) workforce before and after
the RIF.16 Compare with Tidwell, 135 F.3d at 1427 (employer’s “expert showed that the
15
Of course, even statistically significant evidence can fail to create a jury question of
pretext. See Benson, 113 F.3d at 1209-10 (plaintiff-Dollar failed to raise jury question that
employer’s proffered explanation that Dollar refused to learn a new computer program was a
pretext for age discrimination because Dollar conceded that he expressed such disinterest, even
though Dollar presented “statistically significant” evidence that employer terminated workers
over 40 years-of-age at 5, and workers over 50 years-of-age at 3, times the rate that it terminated
younger workers during the RIF).
16
Although plaintiffs introduced into evidence a computerized printout of TEAS’s age-
ranked November 1992 employees, which included the RIF’ed engineers, courts do not expect
juries to use calculators or find a mathematician among its members. Furthermore, such
11
average age of the sales force actually increased slightly after the RIF”). The most fatal
shortcoming, though, was that other than identifying the “Associate Principal Engineer”
status of two new hires – a title that merely reflected those engineers’ pay grade –
plaintiffs did not identify any new employees similarly situated to themselves. See
Benson, 113 F.3d at 1211-12 (plaintiff-Benson raised jury question of pretext in part
through evidence that new hire possessed skills equal to that of plaintiff) (emphasis
added); Furr v. Seagate Technology, Inc., 82 F.3d 980, 986 (10th Cir. 1996) (reversing
the district court$s denial of defendant$s motion for judgment as a matter of law because,
among other reasons, “[p]laintiff$s evidence of [employer’s] post-RIF$s hirings fail[ed] to
show pretext because the people hired were not similarly situated to the [P]laintiffs”),
cert. denied, 117 S. Ct. 684 (1997). Thus, while this superficial presentation may have
satisfied plaintiffs’ prima facie burden, it failed to support any inference of intentional
age discrimination after Sverdrup explained the data in a plausible, age-neutral fashion.
See Furr, 82 F.3d at 987 (“Statistical evidence which fails to properly take into account
nondiscriminatory explanations does not permit an inference of pretext.”); Doan v.
Seagate Technology, Inc., 82 F.3d 974, 979 (10th Cir. 1996) (finding plaintiff’s data that
“a greater percentage of older workers were selected for the RIF while a greater
percentage of younger people were hired afterwards” to be “flawed because it failed to
calculations must come from a witness, not a party’s lawyer. See generally Fisher v. Asheville-
Buncombe Technical College, 857 F. Supp. 465, 470 (W.D.N.C. 1993), aff’d, 25 F.3d 1039 (4th
Cir. 1994) (per curiam).
12
compare similarly situated individuals and failed to eliminate nondiscriminatory reasons
for the numerical disparities”), cert. denied, 117 S. Ct. 684 (1997); see generally Barnes
v. Southwest Forest Indust., Inc., 814 F.2d 607, 608, 610 (11th Cir. 1987) (finding
insufficient circumstantial evidence to support a prima facie case of failing to retain or
rehire on the basis of age, even though employer discharged fourteen security guards in a
RIF – thirteen of whom were over the age of forty – and hired twelve employees just
before the RIF – only one of whom was over the age of forty).
Next, we find no substantial conflict in the evidence that Sverdrup implemented a
bona fide RIF in November 1992. Watkins and Mallory rightfully point out that
conventionally, a RIF results in “a shrinking of the work force.” McCorstin, 621 F.2d at
754 (emphasis added). Sverdrup’s TEAS operation, however, is unique because its
existence hinges entirely on Air Force contracts. See generally Williams, slip op. at
3247, 3251 (employer’s proffer that its losing a bid on “a government contract for the
United States Army” caused the RIF constituted a legitimate, non-discriminatory reason
for plaintiff’s termination). According to the undisputed evidence at trial, the Air Force’s
new emphasis on inertial and satellite guided weapons systems and cancellation of
ATLAS caused TEAS to hire engineers with new and distinct skills at the same time it
discharged Watkins, Mallory and others with obsolete and outdated skills. Therefore,
that TEAS experienced no net decrease, and T-60 experienced a slight increase, in
13
workforce in November 1992 amounted to no more than a scintilla of evidence to refute
the notion that TEAS’s management implemented a bona fide RIF.
Despite Watkins and Mallory’s factually-naked contention to the contrary,
Sverdrup did not “replace” them with new hires. The engineers that Sverdrup hired
during the month of the RIF were critically skilled in areas that Watkins and Mallory
were not, that is, aircraft integration, systems integration and product manufacturing.
Significantly, Sverdrup did not hire a new seeker/sensor until September 1993, and he
performed tasks involving optical train design, not infra-red or laser radar systems. See
generally Benson, 113 F.3d at 1212 (The “availability of a job for which the plaintiff may
be qualified eight months after an RIF is not proof that the same job existed at the time of
the RIF.”). Thus, plaintiffs’ reliance on Clark is inapposite. See 990 F.2d at 1221, 1227
(rejecting employer’s “attempt to cast [plaintiff’s] termination as part of a reduction in
force” because (1) “the number of employees at the . . . plant increased by 18 during [the
month of the alleged RIF] and by two more” the following month, and (2) employer
replaced plaintiff with younger individual who “actually had fewer responsibilities than”
plaintiff).
Finally, just as Watkins and Mallory failed to rebut Sverdrup’s case with
affirmative evidence, they failed to impeach all of its legitimate, non-discriminatory
reasons for including them in the RIF to the extent that a reasonable jury “could find
them unworthy of credence.” Combs, 106 F.3d at 1538. According to plaintiffs,
14
Sverdrup articulated the following explanations for including them in TEAS’s RIF: (1)
excessive amounts of nonproductive, or G-65, overhead time; (2) no long-term projected
work; and (3) poor performance. Regarding G-65 time, Watkins and Mallory concede
that their number ranked among the highest of T-60’s engineers. That three engineers
accumulated more nonproductive overhead time than Watkins is inconsequential;
witnesses explained that two of these three engineers had long-term projected work and
the other one had announced his impending resignation. Similarly, plaintiffs’ evidence
that their department director possessed exclusive control over their G-65 time, that is,
whether their work was productive or unproductive, fell short of satisfying their pretext
burden. They presented no evidence that Reid or any other director acted improperly, let
alone with discriminatory animus. Cf. Williams, slip op. at 3249, 3251 (plaintiff raised
jury question that RIF was a pretext for age discrimination in part through evidence that
decision-maker told plaintiff, “[W]e have to come up with something to get rid of these
older people who have been around for so long. We are about to have an RIF and we
have go [sic] to get some older people to retire so we can save the jobs for the younger
people.”).
Nor did Watkins and Mallory sufficiently impeach the contention that TEAS
possessed no long-term work for them at the time of the RIF. Unquestionably, Sverdrup
hired plaintiffs in 1988 to perform seeker/sensor engineering tasks, namely, those
involving infra-red and laser radar weapons systems. The Air Force, however, decreased
15
its demand for this type of work in 1992, as Watkins and Mallory recognized.17
Additionally, plaintiffs were not able to point to any other type of long-term projected
work that they could perform just as well or better than the new hires. Both Watkins and
Mallory testified that given their “extensive” backgrounds, they qualified for other
positions within TEAS, and that Sverdrup’s failure to transfer them evinced intentional
age discrimination. Yet, plaintiffs’ critique of the new hires’ resumes did not account for
the latter’s unique skills and experiences in areas other than seeker/sensor technology,
namely, aircraft integration, systems integration and product manufacturing. Nor were
they able to refute evidence that consistent with its policy, TEAS management looked
for, but found no, positions for which Watkins and Mallory were well-qualified. Lastly,
to the extent that Watkins and Mallory purport to bootstrap prima facie “qualification”
evidence to show pretext, case law from this circuit strongly belies its effectiveness. See
Jameson v. Arrow Co., 75 F.3d 1528, 1533 (11th Cir. 1996) (In a RIF case, “[a]n
employer’s decision to transfer or to hire a younger employee for [an] available position
[for which RIF’ed plaintiff applied and possessed qualifications] is sufficient evidence to
support an inference of discrimination for the limited purpose of establishing the
plaintiff’s prima facie case[.]”) (emphasis added).18 In short, no reasonable jury could
17
In fact, Watkins told a co-worker that he “was seriously thinking about retiring
because there just wasn’t enough work for him to do.” Likewise, Mallory agreed with another
seeker/sensor engineer’s testimony that “work was on the decline.”
18
Because Watkins and Mallory did not sufficiently discredit all of Sverdrup’s proffered
legitimate, non-discriminatory reasons for including them in the RIF, we need not discuss
Sverdrup’s other proffered reasons, namely plaintiffs’ poor performance. See supra note 11. Of
16
find that Sverdrup’s including plaintiffs in the RIF was anything other than “a business
decision, and the ADEA is not a vehicle for reviewing the propriety of business
decisions.” Furr, 82 F.3d at 986 (citation and internal quotation marks omitted).
course, that Watkins and Mallory performed competently would not, in and of itself, create a
jury question. See Broaddus, slip op. at 3349 (“[T]he ADEA prohibits age discrimination and
age discrimination alone.”) (citation omitted); Earley, 907 F.2d at 1083 (“The essence of a RIF is
that competent employees who in more prosperous times would continue and flourish at a
company may nevertheless have to be fired.”) (citation, internal quotation marks and alterations
omitted).
17
V. CONCLUSION
For the foregoing reasons, we hold that no reasonable jury could find that
Sverdrup discharged Watkins and Mallory from employment on account of their age.
Accordingly, we affirm the judgment of the district court.19
AFFIRMED.
19
Because of our disposition on his ADEA claim, Mallory’s appeal of the district court’s
pretrial dismissal of his state law age discrimination claim is moot. See Zaben v. Air Products &
Chemicals, Inc., 129 F.3d 1453, 1455 n.2 (11th Cir. 1997) (“Age discrimination claims brought
under the Florida Civil Rights Act have been considered within the same framework used to
decide actions brought pursuant to the ADEA.”) (per curiam).
18