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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13068 Non-Argument Calendar ________________________
D.C. Docket No. 8:17-cv-00054-SCB-JSS
BRADLEY JONES, on behalf of himself and others similarly situated,
Plaintiff-Appellant,
versus
RS&H, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(May 31, 2019)
Before ROSENBAUM, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-13068 Date Filed: 05/31/2019 Page: 2 of 27
In this “collective action” under the Age Discrimination in Employment Act
(“ADEA”), Bradley Jones, Paula Taylor, and Hamid Ashtari allege that their former
employer, RS&H, Inc. (“RSH”), discriminated against them on the basis of age when
it terminated them as part of a reduction in force (“RIF”) in June 2015. They present
three issues on appeal: (1) whether the district court abused its discretion by
prohibiting the plaintiffs from proceeding on behalf of a nationwide class;
(2) whether the court abused its discretion by refusing to compel nationwide
discovery; and (3) whether the court correctly granted summary judgment to RSH
on their claims of age discrimination. After careful review, we affirm the judgment
of the district court.
I.
RSH is a multi-discipline design firm that provides fully integrated
architecture, engineering, and consulting services. The firm is organized into five
divisions, which are Aerospace, Aviation, Corporate, Transportation, and
Transportation Construction Management.
RSH maintains offices across the United States. All three plaintiffs worked
at RSH’s offices in Tampa in the Transportation division. This division had five
subgroups: roadway, drainage, project development and environmental, traffic
design, and structures. Jones was a designer in traffic design (since 1992); Taylor
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was an administrative assistant in project development (since 2000); and Ashtari was
an engineer in drainage (since 1993, except for a brief time away from 2000–01).
In June 2015, RSH conducted what it says was a RIF in its Transportation and
Aerospace divisions. A total of 23 employees nationwide were terminated in the
RIF. At the Tampa office, 7 employees, including Jones (age 53 1), Taylor (52), and
Ashtari (56), were terminated. Mike Dixon (51) managed the Tampa Transportation
division at the time of the RIF and was responsible for selecting the employees to be
terminated in Transportation, with the consent of his supervisor, Regional Manager
Rick Chesser (68). The decision to conduct the RIF in Transportation was made by
Practice Director Lisa Robert (45) and Operations Leader Jesse Forst (42), two
members of the division’s national leadership.
II.
Claiming that the June 2015 RIF was a pretext to engage in intentional age
discrimination, Jones filed a putative collective-action complaint against RSH under
the ADEA and the Florida Civil Rights Act. According to the complaint, 21 of the
23 employees terminated in the RIF, and 5 of the 7 employees terminated at the
Tampa office, were over 40. Jones also alleged that RSH rarely allowed non-officers
to work until retirement, that it routinely fired older employees after they had trained
1 All ages refer to the respective individual’s age as of June 2015. 3 Case: 18-13068 Date Filed: 05/31/2019 Page: 4 of 27
their younger replacements, and that members of RSH’s management had made
ageist comments. Jones sought to represent himself and other former RSH
employees in a collective action.
A.
The ADEA permits employees to enforce its provisions by bringing “opt-in”
collective actions as provided in 29 U.S.C. § 216(b). See 29 U.S.C. § 626(b); Hipp
v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216–17 (11th Cir. 2001). Under
§ 216(b), a collective action may be brought by one or more named employees on
their own behalf and on behalf of “other employees similarly situated.” 29 U.S.C.
§ 216(b); Hipp, 252 F.3d at 1217–18. Employees interested in joining, or opting
into, the lawsuit must file a written consent in order to become a party to the suit.
See 29 U.S.C. § 216(b).
Taylor and Ashtari filed notices consenting to join the action immediately
after the complaint was filed. Jones then moved the district court to “conditionally”
certify, and provide notice to, a class of “former RSH employees who were
terminated from October 28, 2014, through August 24, 2015, and were 40 years of
age or older at the time of termination.” See, e.g., Mickles v. Country Club Inc., 887
F.3d 1270, 1276–77 (11th Cir. 2018) (explaining “conditional certification”).
RSH responded in opposition and submitted affidavits from its Vice President
for Human Resources, Angelique Brown, and from Tampa Transportation manager
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Dixon. Brown stated that RSH employed approximately 976 employees in at least
50 locations in 17 states, and that Jones’s proposed class would encompass
individuals from various RSH divisions, under different team leaders, and from
office locations in 15 cities across the county. Dixon stated that he selected the
employees to be terminated in Transportation at the Tampa office.
The district court granted in part and denied in part Jones’s motion. For two
independent reasons, the court found that Jones could not proceed on behalf of a
nationwide class. First, the court found that Jones’s charge of discrimination filed
with the Equal Employment Opportunity Commission (“EEOC”) did not give
adequate notice that claims were being asserted by a nationwide class over a ten-
month period. Second, the court, citing RSH’s affidavits, concluded that the
proposed class was too large and diverse to be similarly situated. The court
explained that Jones had not alleged a sufficient factual basis to draw the inference
that RSH had a pattern or practice of discriminating against its employees at all
locations based on their age. For similar reasons, the court later rejected Jones’s
attempt to narrow the proposed class to employees who were terminated in the June
2015 RIF nationwide.
Nevertheless, the district court found that Jones could conditionally proceed
on behalf of a class consisting of ADEA-protected employees who were terminated
from the Tampa office during the June 2015 RIF. Notice was sent out to that class,
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though no other plaintiffs joined the lawsuit. Thus, the class consisted of Jones and
the two opt-in plaintiffs, Taylor and Ashtari (collectively, “Plaintiffs”).
B.
Despite losing on the class-certification issue, Plaintiffs during discovery
requested information related to RSH’s nationwide employment and termination of
employees over 40 years old. RSH refused, claiming that the requests were
irrelevant, overbroad, vague, or unduly burdensome. Plaintiffs then filed a motion
to compel that discovery, maintaining that, even if the class was limited to the Tampa
office, information about RSH’s overall pattern and practice of discrimination—
“terminating older employees and replacing them with younger, less qualified
employees”—was relevant and potentially admissible to prove discriminatory intent
and pretext as it related to the Tampa office. Plaintiffs then filed a second motion to
compel RSH’s response to additional interrogatories and requests for production.
After a hearing, a magistrate judge entered an order granting in part and
denying in part the first motion to compel and denying the second motion to compel.
The magistrate judge granted the first motion to the extent the discovery requested
was limited to RSH’s Tampa location, but she denied Jones’s demand for nationwide
discovery. As to the second motion, the magistrate judge found that the discovery
requests at issue had not been served in compliance with Rule 5, Fed. R. Civ. P.,
because they had been sent to RSH by email without its consent. The district court
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overruled Jones’s objections to the magistrate judge’s order, concluding that the
magistrate judge’s rulings were not clearly erroneous or contrary to law.
C.
RSH moved for summary judgment after discovery closed, submitting
evidence and arguing that Plaintiffs could not establish prima facie cases of
discrimination or rebut RSH’s legitimate, nondiscriminatory reasons for
(1) conducting the June 2015 RIF and (2) selecting Plaintiffs to be terminated in the
RIF. Plaintiffs responded in opposition and presented evidence of their own.
The district court granted summary judgment in favor of RSH, concluding
that, even if Plaintiffs had established prima facie cases, they had not presented
sufficient evidence to show either that the RIF itself was pretextual or that the
reasons offered for terminating Plaintiffs were not what actually motivated its
conduct. Plaintiffs now appeal.
III.
Plaintiffs first challenge the district court’s class-certification decision. We
review the district court’s certification decision in a collective action for an abuse of
discretion. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir.
2008). As explained above, plaintiffs seeking to bring a collective action under the
ADEA on behalf of a class of employees must show that the class is “similarly
situated.” 29 U.S.C. § 216(b). One way of doing so—though not the only way—is
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to provide evidence that the class was subject to a “unified policy, plan, or scheme
of discrimination.” Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996).
At the initial “conditional certification” stage, “[t]he plaintiffs bear the burden
of demonstrating a ‘reasonable basis’ for their claim of class-wide discrimination.”
Id. at 1097. “The plaintiffs may meet this burden, which is not heavy, by making
substantial allegations of class-wide discrimination, that is, detailed allegations
supported by affidavits which successfully engage defendants’ affidavits to the
contrary.” Id. (quotation marks omitted).
Here, the district court reasonably limited the class to RSH’s Tampa office.
Plaintiffs claim that all employees who were terminated in the June 2015 RIF,
wherever their location, were similarly situated because they were subject to the
same general pattern and practice of discrimination. But we cannot characterize as
“substantial” their allegations of a nationwide pattern and practice—statistics
indicating the June 2015 RIF’s disparate impact on employees over 40, ageist
comments not directly related to that RIF, and vague anecdotal observations—
particularly when viewed against RSH’s affidavits stating that the RIF selections at
the Tampa office were made locally by Dixon, who had no role in the selections at
RSH’s other offices. Plaintiffs offered no allegations or evidence to the contrary.
Accordingly, the court did not abuse its discretion in concluding that Plaintiffs had
not shown a “reasonable basis” for their claim of discrimination against a nationwide
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class. See Grayson, 79 F.3d at 1097. We therefore need not and do not address
whether Jones’s EEOC charge was adequate to provide notice of a nationwide class.
IV.
Plaintiffs next challenge the denial of their motions to compel discovery. We
review a district court’s denial of a motion to compel discovery for an abuse of
discretion. Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006). We
will not disturb the court’s broad discretion to compel or deny discovery unless the
court made a clear error of judgment or applied the wrong legal standard. Josendis
v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306–07 (11th Cir. 2011).
Plaintiffs first argue that the district court hampered their ability to present
evidence of discrimination and pretext by denying their motion to compel broad
discovery about RSH’s employment and termination of ADEA-protected employees
nationwide. Their theory of the case, Plaintiffs explain, was that RSH had engaged
in a pattern and practice of age discrimination for years, using RIFs as an excuse to
terminate older workers to make way for younger employees. For that reason, they
assert, they were entitled to discovery about RSH’s company-wide practices in order
to develop statistical evidence in support of that theory.
Statistical information concerning an employer’s general policy and practice
may be relevant to prove discrimination or pretext, even in a case alleging an
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individual instance of intentional discrimination. Sweat v. Miller Brewing Co., 708
F.2d 655, 658 (11th Cir. 1983). Such statistical evidence may aid the plaintiff in
showing that the employment action at issue “conformed to a general pattern of
discrimination” against a protected group. McDonnell Douglas Corp. v. Green, 411
U.S. 782, 805 (1973). But see Krieg v. Paul Revere Life Ins. Co., 718 F.2d 998,
1002 (11th Cir. 1983) (concluding that statistical evidence was insufficient on its
own to carry the plaintiff’s burden because it did not “negate the reasons given by
the company for [the plaintiff’s] discharge”).
But where “the employment decisions were made locally,” even in the context
of a nationwide RIF, “discovery on intent may be limited to the employing unit.”
Earley v. Champion Int’l Corp., 907 F.2d 1077, 1085 (11th Cir. 1990). “[I]n the
context of investigating an individual complaint the most natural focus is upon the
source of the complained of discrimination—the employing unit or work unit.” Id.
(quoting Marshall v. Westinghouse Elec. Corp., 576 F.2d 588, 592 (5th Cir. 1978)).
Only if it’s “clear that nationwide practices are relevant” should discovery expand
beyond the confines of “the local units of a corporation.” Brown v. Am. Honda
Motor Co., 939 F.2d 946, 954 (11th Cir. 1991).
In Earley, we held that the district court properly denied a motion to compel
nationwide discovery in the context of a RIF. See 907 F.2d at 1084–85. We noted
that while the RIF was “initiated at the national level,” “[t]he decision to terminate
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[the plaintiffs] in the RIF—as opposed to other employees—was made at the local
level.” Id. at 1084. We found that the plaintiffs’ asserted reasons for requesting
nationwide discovery were “conclusory,” and we explained that a “vague possibility
that loose and sweeping discovery might turn up something suggesting that the
structuring of the RIF was discriminatorily motivated does not show particularized
need and likely relevance that would require moving discovery beyond the natural
focus of the inquiry.” Id. at 1084–85.
Here, the district court did not abuse its discretion by denying Jones’s motion
to compel company-wide discovery. As in Earley, while the June 2015 RIF was
implemented at the national level, the decision to terminate Plaintiffs in the RIF, as
opposed to other employees, was made at the local level. See id. at 1084. Thus, the
“natural focus” of the case, particularly in light of the court’s class-certification
ruling, was the local level. See id. While Plaintiffs contend that they needed the
discovery to develop statistical data to support their theory of company-wide
discrimination, the court enjoys substantial discretion in discovery matters, and we
cannot say that the court “made a clear error of judgment” in refusing to compel
production of the information requested. See Josendis, 662 F.3d at 1306–07.
Plaintiffs next argue that the district court abused its discretion by denying
their second motion to compel on procedural grounds. In Plaintiffs’ view, the court
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should have required RSH to respond to the discovery requests, notwithstanding the
technical deficiency in service, in light of RSH’s prior conduct. Plaintiffs also
complain that the court treated this deficiency much differently than RSH’s own
failure to comply with discovery procedures.
The second motion to compel concerned requests for production and
interrogatories. The Federal Rules of Civil Procedure provide that these requests
must be served, which may be accomplished “by electronic means if the person
consented in writing.” Fed. R. Civ. P. 5(a)(1)(C), (b)(2)(E); see Fed. R. Civ. P. 33–
34. Importantly, consent “must be express, and cannot be implied from conduct.”
Fed. R. Civ. P. 5 advisory committee’s note to 2000 amendment.
Here, the district court did not abuse its discretion by enforcing compliance
with the plain terms of Rule 5. Plaintiffs do not dispute that they never obtained
RSH’s written consent to receive electronic discovery requests. And RSH’s consent
“cannot be implied from conduct.” Id. As to the alleged differential treatment, the
infractions were fundamentally different because Plaintiffs violated a clear rule of
civil procedure, while RSH did not. 2 We cannot say the court’s different treatment
of the different infractions was unreasonable. Accordingly, we affirm the denial of
Plaintiffs’ second motion to compel.
2 RSH’s alleged infraction was its failure to timely file a privilege log, which Plaintiffs argued amounted to waiver of the privilege. Declining to find waiver, the district court noted that no federal rule requires production of the log or mandates waiver as a sanction. 12 Case: 18-13068 Date Filed: 05/31/2019 Page: 13 of 27
V.
We now consider whether the district court properly granted summary
judgment in favor of RSH. We review the grant of summary judgment de novo,
viewing the evidence and drawing all reasonable inferences in favor of the non-
moving party. Batson v. Salvation Army, 897 F.3d 1320, 1325 (11th Cir. 2018).
Summary judgment is appropriate when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A genuine factual dispute exists if a reasonable jury could return a verdict
for the non-moving party. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th
Cir. 2004). A “mere scintilla” of evidence in favor of a non-moving party is not
enough. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012).
Summary judgment also may be granted where the evidence is “merely colorable,
or is not significantly probative of a disputed fact.” Id. (quotation marks omitted).
The ADEA makes it unlawful for an employer to discharge or otherwise
discriminate against an employee who is at least 40 years old on the basis of that
employee’s age. 29 U.S.C. §§ 623(a)(1), 631(a). A plaintiff may support her ADEA
claim through either direct or circumstantial evidence. Mazzeo v. Color Resolutions
Int’l, LLC, 746 F.3d 1264, 1270 (11th Cir. 2014). Plaintiffs here allege intentional
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discrimination, which requires proof by a preponderance of the evidence that age
was the “but for” cause of their termination. 3 Id.
Where the plaintiff supports her claim with circumstantial evidence, we
generally apply the McDonnell Douglas burden-shifting framework. Id. Under that
framework, the plaintiff must first create an inference of discrimination by
establishing a prima facie case. Id. The burden then shifts to the employer to
articulate a legitimate, non-discriminatory reason for the challenged employment
action. Id. If the employer does so, the inference of discrimination drops out of the
case, and the plaintiff then has the opportunity to show that the employer’s proffered
reasons were pretextual. Id. The plaintiff’s burden at the pretext stage “merges with
the plaintiff’s ultimate burden of persuading the court that the employer intentionally
discriminated against her.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1265 (11th Cir. 2010) (Title VII case).
A plaintiff may satisfy her burden at the pretext stage “by showing that [the
employer’s] proffered reasons are not credible.” Id. In most cases, “rejection of the
defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of
intentional discrimination.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
3 The ADEA also permits “disparate-impact claims,” which involve facially neutral employment practices that fall more harshly on the protected group and do not require proof of intentional discrimination. See, e.g., Smith v. City of Jackson, Miss., 544 U.S. 228, 236–40 (2005). Plaintiffs here do not challenge the district court’s construction of their claims as alleging disparate treatment, rather than disparate impact. 14 Case: 18-13068 Date Filed: 05/31/2019 Page: 15 of 27
(1993); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146–48 (2000)
(“In appropriate circumstances, the trier of fact can reasonably infer from the falsity
of the explanation that the employer is dissembling to cover up a discriminatory
purpose.”). However, judgment as a matter of law may still be appropriate if “the
record conclusively revealed some other, nondiscriminatory reason for the
employer’s decision.” Reeves, 530 U.S. at 148.
To show that an employer’s reason is not credible, the plaintiff must meet that
reason head on and rebut it. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.
2000) (en banc). Plaintiffs may do so by showing “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s rationale.”
Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012) (quotation marks omitted).
But plaintiffs may not recast the reason or merely quarrel with its wisdom.
Chapman, 229 F.3d at 1030. It is not our role to second-guess the business decisions
of employers. Id. The wisdom or fairness of the employer’s decision is not at issue,
only whether the employer gave an honest and non-discriminatory explanation for
its behavior. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
A plaintiff may also defeat a summary-judgment motion “by offering
evidence that [the employer] more likely than not acted with a discriminatory
motive.” Alvarez, 610 F.3d at 1265; see Reeves, 530 U.S. at 147 (“Proof that the
defendant’s explanation is unworthy of credence is simply one form of
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circumstantial evidence that is probative of intentional discrimination . . . .”).
Indeed, plaintiffs may defeat a summary-judgment motion outside of the McDonnell
Douglas framework by presenting “a convincing mosaic” of circumstantial evidence
that raises a reasonable inference that the employer discriminated against him. Smith
v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
We begin by summarizing RSH’s evidence of its reasons for both (1) deciding
to conduct the RIF in Transportation and (2) selecting Plaintiffs Jones, Taylor, and
Ashtari, as opposed to other employees, to be terminated in the RIF. 4
Practice Director Robert and Operations Leader Forst, members of
Transportation’s national leadership, made the decision to conduct the RIF after the
end of RSH’s fiscal year in March 2015. Before then, they had been regularly
monitoring financial statements and workload projections in Transportation. In or
around October 2014, they noticed a decrease in revenue and performance, which
corresponded with a decline in future workload. In monitoring the situation going
4 Contrary to Plaintiffs’ conclusory claim that RSH failed to specify legitimate, non- discriminatory reasons for its actions, the record plainly shows that RSH met its “exceedingly light” burden of proffering legitimate, non-discriminatory reasons both for the RIF and for selecting each of the plaintiffs in the RIF. See Perryman v. Johnson Prods. Co., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983) (stating that the defendant’s intermediate burden under McDonnell Douglas is “exceedingly light”). To the extent Plaintiffs argue that RSH did so belatedly and thereby harmed Plaintiffs’ discovery efforts, that was a matter to bring to the district court’s attention. 16 Case: 18-13068 Date Filed: 05/31/2019 Page: 17 of 27
forward, they considered existing work RSH had, contracts that it had won but were
not yet signed, and contracts that it was pursuing. They projected the workload for
the following six and twelve months and analyzed the projected workload by
division, region, and office. They also consulted with regional managers.
Based on their projected workload analysis, Robert and Forst determined that
Transportation, and particularly the Tampa office, lacked sufficient work going
forward for the number of employees. According to Robert and Forst, RSH makes
money by billing its employees’ work hours to clients, and billable hours reflect an
employee’s “utilization.” Employee hours not billed to a specific project or client
were instead billed to “overhead.” So, in RSH’s view, a lack of utilization, or high
overhead, reflects excess employees, which can be remedied either by increasing the
amount of billable work or by reducing labor costs. Because their projections
showed a decline in future workload, Robert and Forst determined that
Transportation needed to reduce labor costs.
To that end, Robert and Forst told Chesser that he needed to reduce labor costs
by a certain amount in his region, which included Tampa, and that he had ten to
twelve too many employees. Robert and Forst did not tell Chesser which employees
to select for termination in the RIF. Chesser, in turn, tasked the Tampa
Transportation manager, Dixon, with selecting the employees who would be
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terminated in the RIF. Chesser told Dixon to select people to reduce overhead and
to increase the remaining employees’ utilization.
Dixon made the selections for the RIF in Transportation at the Tampa office.
In deciding which employees to terminate, Dixon considered several factors,
including (a) utilization rate; (b) pay rate; (c) maintaining skills and capabilities;
(d) performance; and (e) client interests. The only real feedback he received during
this process was about whether he was making “enough difference to the bottom
line.” Once he made his selections, Dixon provided the list to Chesser, who
consented and passed the list on to Robert and Forst for approval.
Dixon offered reasons for selecting each of the plaintiffs in the RIF. Dixon
said he selected Jones for termination because there would not be a loss of
capabilities by terminating him—that is, the remaining employees in his group could
do more things than Jones could. Specifically, the other two employees on Jones’s
team were professional engineers who could sign and seal engineering documents
and perform quality-control reviews. Jones was not a professional engineer and
could not do those things. Additionally, according to Dixon, Jones had not done two
of the four types of traffic-design work that RSH did.
With regard to Taylor, Dixon stated that he selected Taylor for termination
because her teammate, Laura Self, had some capabilities that Taylor did not have,
even though he viewed them as equally qualified. Specifically, Dixon stated that
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Self had more interaction with the company’s clients, that she had more experience
with several computer programs RSH used its in work, and that she was more
familiar with the “submittal process.”
As to Ashtari, Dixon cited two main reasons for his termination. First, Ashtari
was the only employee in his subgroup that had clients who had stated that they did
not want to work with him. Second, Dixon stated that Ashtari failed to follow
standard operating procedures for quality control the year prior to the RIF. Ashtari
was given a written reprimand for this incident in March of 2015.
Plaintiffs maintain that RSH’s reasons are not worthy of credence due to
inconsistencies, contradictions, and implausibilities in its rationale, and that they
presented enough additional evidence of pretext to preclude summary judgment. But
even construing the evidence and drawing all reasonable inferences in favor of
Plaintiffs, we conclude that the district court did not err in granting summary
judgment in favor of RSH.
1. Decision to Conduct the RIF
Plaintiffs first contend that a reasonable jury could conclude that RSH’s
explanation of its reason for conducting the RIF—to cut costs due to financial
conditions and workload projections as of June 2015—is not worthy of credence.
We disagree.
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Plaintiffs contend that RSH’s explanation is not worthy of credence because
RSH’s witnesses “contradicted each other on nearly every aspect of the RIF.” The
purported contradictions, however, are either illusory or not material. 5 Plaintiffs
assert that the “lack of work” justification is somehow inconsistent with the stated
goals of increasing employee utilization and reducing salary overhead. But it isn’t.
Undisputed evidence reflects that low utilization and high overheard reflected
insufficient work for the number of employees. By reducing the number of
employees, labor costs are reduced, and the work of terminated employees is taken
up by remaining employees, thereby increasing employee utilization. In short, there
is no conflict in these reasons.
Plaintiffs assert that RSH’s own records contradict the proffered reasons for
implementing the RIF. We agree with the district court, however, that Plaintiffs
have not shown that the records are evidence of pretext. In and of itself, the mere
fact that an employer was mistaken about the facts upon which the challenged
employment decision was based does not establish pretext. Wilson, 376 F.3d at
1092. Rather, “a plaintiff must present evidence from which a reasonable jury could
find that the defendant did not honestly believe the facts upon which he allegedly
5 Plaintiffs identify a purported conflict regarding whether Dixon was told to terminate a specific number of employees, as opposed to an estimated number or a specific amount of salary overhead. We fail to see how this is material to RSH’s reasons for conducting the RIF, and in any case, we see nothing inconsistent in Dixon’s being told to reduce salary overhead by a specific amount and also being told an estimated number of employees that would reach that goal. 20 Case: 18-13068 Date Filed: 05/31/2019 Page: 21 of 27
based his non-discriminatory decision.” Woodard v. Fanboy, L.L.C., 298 F.3d 1261,
1265 (11th Cir. 2002). Plaintiffs have not done so.
While Plaintiffs may have shown that RSH’s workload projections proved to
be inaccurate 6 and were not entirely consistent, we see nothing in the record to
indicate that Robert and Forst knew that their six- and twelve-month projections—
which are necessarily guesses, albeit educated ones, about the future—were not
credible at the time they made the decision to conduct the RIF. In fact, Taylor
indicated in her testimony that the Tampa Transportation division, during the 2014–
15 time period, was making numerous bids on projects but winning few. So while
Robert and Forst may have been wrong in their projections, and could have been
more responsive to changing conditions, these facts do not show that the projections
were pretextual.
Plaintiffs also claim that RSH implemented the RIF in the face of record
profits and a $24 million backlog of work. But there is nothing to indicate—and
Plaintiffs do not assert—that this evidence referred to Transportation specifically, as
opposed to the company as a whole. See Beaver v. Rayonier, Inc., 200 F.3d 723,
6 For instance, Plaintiffs presented evidence that the workload projections for May and June of 2015 in the Tampa traffic-design group were inaccurate, and that the Tampa office exceeded its sales goals for the 2015–16 fiscal year. However, the number of hours worked in the traffic group in May and June does not directly contradict RSH’s explanation that its projected amount of billable work was down across Transportation as a whole, nor does it contradict the projections for the remaining months. For instance, Dixon testified that projects were ending around that time, but that not much new work was coming in. 21 Case: 18-13068 Date Filed: 05/31/2019 Page: 22 of 27
728 (11th Cir. 1999) (“Beaver’s evidence concerning profitability at Rayonier as a
whole, as opposed to the profitability of the Jesup mill where the RIF was conducted,
is irrelevant to the question of whether economic conditions at the Jesup mill led
Rayonier to conduct a RIF.”). Accordingly, this evidence does not undermine
RSH’s decision to conduct a RIF in Transportation specifically.
Finally, the fact that RSH hired additional employees at the Tampa office at
some point before December 2017 says very little, if anything, about the state of
matters in the Tampa office as of June 2015. Furthermore, as the district court noted,
Plaintiffs “provide[d] no detail regarding what position each added employee held,
when each employee was added, or the ages of the additional employees.” See
Beaver, 200 F.3d at 728–29 (“A plaintiff must also show that the new positions were
similarly situated to those that were eliminated in the RIF.”).
For these reasons, we conclude that no reasonable jury could disbelieve
RSH’s reasons for deciding to conduct a RIF in Transportation as a cost-cutting
measure and instead conclude that it was a pretext to engage in age discrimination.
And “[i]t is not our role to second-guess [RSH’s] decision to respond to [a lack of
utilization in Transportation] by cutting its workforce.” Id. at 728.
2. Reasons for Selecting Plaintiffs
Turning to RSH’s reasons for selecting Plaintiffs, as opposed to other
employees, to be terminated in the RIF, we likewise conclude that Plaintiffs have
22 Case: 18-13068 Date Filed: 05/31/2019 Page: 23 of 27
not established pretext. It is an unfortunate fact of RIFs “that competent employees
who in more prosperous times would continue and flourish at a company may
nevertheless have to be fired.” Earley, 907 F.2d at 1084 (alteration and quotation
marks omitted). That means drawing fine distinctions between qualified employees,
who, under better economic conditions, might all continue to be employed.
Here, RSH provided legitimate and uncontradicted reasons for selecting each
of the plaintiffs in the RIF rather than other employees. Unlike the other two
members of his group, Jones was not a professional engineer, so he could not sign
and seal certain engineering documents or perform quality-control reviews, and he
worked almost exclusively with just two of the four areas of traffic-design work,
even if he was capable of performing all four. Taylor does not dispute that her
teammate had more experience with certain software programs the team utilized or
that her teammate was more familiar with the submittal process. Her claim that
Dixon should have selected a newly hired receptionist is unavailing because the
receptionist was not part of Transportation under Dixon’s management. Finally,
Ashtari admits that he was the only member of his team about whom customers had
complained and had specifically requested that they not work with him in the future.
Accordingly, it simply is not the case, as Plaintiffs maintain, that the “[o]nly . . . fact
that explains why Plaintiffs were terminated” is their age. While Plaintiffs may
disagree with the wisdom of these reasons and believe that they should have been
23 Case: 18-13068 Date Filed: 05/31/2019 Page: 24 of 27
retained over other employees, they have not shown that the reasons are pretextual,
and it is not our role to second-guess the business decisions of employers. 7 See
Chapman, 229 F.3d at 1030.
More broadly, Plaintiffs contend that Dixon provided inconsistent testimony
regarding the criteria he used to make his selection decisions. We disagree. Dixon
explained that his overarching considerations were the effect on the company’s
bottom line and its capabilities. He then elaborated that he considered multiple
factors, including utilization rates, pay rates, skills and capabilities, performance,
and client interaction. The fact that Dixon identified multiple factors during his
deposition does not mean that he contradicted himself.
Still more broadly, Plaintiffs contend that their selection in the RIF, as the
oldest members of their respective groups, is consistent with RSH’s pattern and
7 Plaintiffs maintain that Forst contradicted Dixon’s explanation of his reasons for selecting Plaintiffs. For instance, Forst stated that Dixon had mentioned that there may have been issues with Jones’s interactions with the rest of the group, while Dixon did not offer that reason in his testimony. But Forst also confirmed Dixon’s testimony that Jones was selected because he was not an engineer like the other two members of the group. Moreover, Forst’s testimony that they considered utilization rates as a factor does not contradict other evidence indicating that Jones was not selected due to underutilization. Overall, we find the minor variations and inconsistencies identified by Plaintiffs insufficient to create a genuine issue of material fact on pretext, given the unrebutted reasons already discussed. See Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (“If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment.”). Additionally, Dixon’s failure to inform Plaintiffs, at the time of their termination, of these specific reasons is not evidence of pretext in this case. The evidence indicates that Plaintiffs were informed that they were being terminated in a RIF, and it does not appear that Dixon was asked, and refused, to explain his specific reasons for selecting Plaintiffs. 24 Case: 18-13068 Date Filed: 05/31/2019 Page: 25 of 27
practice of discrimination against older employees. In this regard, they point to
ageist comments, statistical evidence and analysis, and anecdotal observations.
Though some of this evidence is troubling, we cannot conclude, on this record, that
it is enough to create a genuine issue of material fact regarding whether Plaintiffs
were selected for the RIF because of their age. See Mosley, 694 F.3d at 1300
(summary judgment may be granted where the evidence is “merely colorable, or is
not significantly probative of a disputed fact”).
Undisputed evidence reflects that Dixon, with Chesser’s consent, made the
RIF selections for Transportation at the Tampa office. Dixon was not involved in
any prior RIF at RSH, so there is no evidence of a prior pattern of discrimination by
Dixon against older employees from which to infer discriminatory animus in this
case. See, e.g., Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361
(11th Cir. 1999) (“While not direct evidence of discriminatory animus, we believe
that this pattern of firing and demoting so many older workers and replacing them
with younger workers, by the relevant decision-maker during the same time period,
constitutes probative circumstantial evidence of age discrimination.” (emphasis
added)). For that reason, the statistical evidence of RSH’s broader employment
practices, even if suggestive of age discrimination, does not negate the reasons
25 Case: 18-13068 Date Filed: 05/31/2019 Page: 26 of 27
offered by Dixon for selecting Plaintiffs in the RIF.8 See Krieg, 718 F.2d at 102
(“Even if the statistics did show that the company sometimes discriminates because
of age. . . , they do not show that the company did so in this instance.”).
In addition, Plaintiffs identify no evidence that RSH directly or indirectly
caused or guided Dixon to select older employees in the RIF. Because the evidence
reflects that Dixon selected which Transportation employees to terminate at the
Tampa office in the RIF, Chesser’s isolated ageist comment—“you, the younger
engineers of RSH, are our future”—made years before the RIF, does not raise an
inference of discriminatory intent. See Rojas v. Florida, 285 F.3d 1339, 1343 (11th
Cir. 2002) (isolated comments unrelated to the termination decision are “insufficient
to establish a material fact on pretext”).
As for the other comments cited by Plaintiffs, they were made by former
supervisors who had no role in the June 2015 RIF. And “comments by non-
decisionmakers do not raise an inference of discrimination.” Mitchell v. USBI Co.,
186 F.3d 1352, 1355 (11th Cir. 1999). Finally, Plaintiffs’ anecdotal evidence—that
they had observed a pattern of older employees being fired and replaced by younger
employees—was vague and conclusory and amounted to little more than Plaintiffs’
subjective impressions, which are not enough to defeat a summary-judgment motion.
8 For similar reasons, we cannot say that RSH’s alleged failure to comply with the Older Workers Benefit Protection Act constitutes evidence of pretext in this case. 26 Case: 18-13068 Date Filed: 05/31/2019 Page: 27 of 27
See Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (“This court has
consistently held that conclusory allegations without specific supporting facts have
no probative value.”). Any remaining issues raised in Plaintiffs’ briefing have been
considered and found to be without merit.
For all of these reasons, we conclude that Plaintiffs did not present sufficiently
probative evidence to create triable issues of age discrimination. We therefore
affirm the district court’s grant of summary judgment.
VI.
The judgment of the district court in favor of RSH is AFFIRMED.