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Jones v. RS&H, Inc.

United States District Court, M.D. Florida, Tampa Division

June 21, 2018

BRADLEY JONES, on behalf of himself and others similarly situated, Plaintiffs,
v.
RS&H, INC., Defendant.

          ORDER

          SUSAN C. BUCKLEW UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on Defendant's Motion for Summary Judgment. (Doc. No. 61). Plaintiffs oppose the motion. (Doc. No. 76). As explained below, the motion is granted.

         I. Standard of Review

         Summary judgment is appropriate “if the movant shows that 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). The Court must draw all inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006)(citation omitted). The moving party bears the initial burden of showing the Court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. See id. (citation omitted). When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing there is a genuine issue for trial. See id. (citation omitted).

         II. Background

         Plaintiffs Bradley Jones, Paula Taylor, and Hamid Ashtari worked for Defendant RS&H, Inc. for many years, until their employment with Defendant was terminated during a June 2015 reduction in force (“RIF”). Thereafter, Jones filed a collective action against Defendant, alleging that his selection for the RIF was a result of age discrimination. Taylor and Ashtari opted into this collective action.

         A. Plaintiffs and the Decision-Makers

         Defendant is a multi-disciplined design firm that provides fully integrated architecture, engineering, and consulting services. It has five business divisions, and Plaintiffs all worked within the Tampa Transportation division. Within the Tampa Transportation division, there were five subgroups: (1) roadway, (2) drainage, (3) project development and environmental (“PD&E”), (4) traffic design, and (5) structures. Jones was a designer in the traffic design subgroup since 1992. Taylor was an administrative assistant in the PD&E subgroup since 2000. Ashtari was an engineer in the drainage subgroup since 1993.[1]

         At the time of the RIF, Michael Dixon (age 51 at the time) managed everyone in the Tampa Transportation division. Dixon reported to Regional Manager Rick Chesser (age 68 at the time). Chesser and Jesse Forst (the Operations Manager for the Transportation division nationwide; age 42 at the time) both reported to Practice Director Lisa Robert (who was responsible for the strategic direction, business performance, and leadership for the Transportation division nationwide; age 45 at the time).

         B. The Decision to Have a RIF

         Every month, Robert and Forst would look at the company's financial statements and workload projections to evaluate the company's financial performance and to determine how many workers were needed to complete the work that Defendant had. (Doc. No. 73-7, depo. p. 34, 36; Doc. No. 73-5, depo. p. 23). In October of 2014, the Transportation division's financial performance began to decline, so Robert and Forst were monitoring future workload. (Doc. No. 73-1, depo. p. 33-34, 37; Doc. No. 73-6, depo. p. 103).

         In monitoring the future workload, Robert and Forst considered: existing work that Defendant had, contracts Defendant had won but were not yet signed, and contracts that Defendant was pursuing. (Doc. No. 73-7, depo. p. 39; Doc. No. 73-6, depo. p. 15). Robert and Forst projected the workload for the following six and twelve months and analyzed it by division, region, and office. (Doc. No. 73-7, depo. p. 39; Doc. No. 73-6, depo. p. 18). Thereafter, Robert and Forst had discussions with Chesser, the Regional Manager, regarding the concern that there was not enough projected future work to support the employee headcount. (Doc. No. 73-7, depo. p. 37, 40, 42). Specifically, they told Chesser that based on their projected workload analysis, Chesser had ten to twelve too many employees within his region in the Transportation division. (Doc. No. 73-7, depo. p. 42, 43).

         The number of excess employees is determined by projecting the company's future workload and determining how many employee hours are required to complete that workload. The number of employee hours needed is then converted to determine how many employees are needed to complete those required hours. That number is then compared to the number of current employees in order to determine the number of excess employees that would not be utilized for the projected workload.

         Stated differently, Defendant makes money by billing its employees' work hours to clients, and that is what Defendant calls “utilization.” (Doc. No. 73-7, depo. p. 15, 21; Doc. No. 73-2, depo. p. 70; Doc. No. 73-5, depo. p. 51-52). Employees that were not billing their hours to a specific contract/project/client were billing their hours to overhead, and those employees' hours were not being “utilized” towards a specific project. (Doc. No. 73-7, depo. p. 15; Doc. No. 73-2, depo. p. 70; Doc. No. 73-5, depo. p. 51-52). Thus, Robert and Forst told Chesser that based on their projected workload analysis, Chesser had ten to twelve too many employees within his region, and they also discussed this excess in terms of overhead dollars that needed to be reduced. (Doc. No. 73-7, depo. p. 42-45, 54; Doc. No. 73-6, depo. p. 22-23; Doc. No. 73-5, depo. p. 28).

         C. The Selection of Employees to be Terminated in the RIF

         Robert and Forst did not tell Chesser which employees to select for termination from the Tampa Transportation division in the RIF. (Doc. No. 73-7, depo. p. 45; Doc. No. 73-6, depo. p. 24; Doc. No. 73-5, depo. p. 29). Instead, Chesser discussed the matter with Dixon in May of 2015. (Doc. No. 73-7, depo. p. 49; Doc. No. 73-2, depo. p. 66-67). Chesser told Dixon to select people to terminate in order to reduce overhead; the remaining employees' utilization would be increased as they would absorb the work left by the terminated employees. (Doc. No. 73-2, depo. p. 73-75).

         In determining the employees to be selected for termination, Dixon considered what the termination would do to the company's bottom line, what it would do to the company's capabilities, and whether any employees were performing better than others. (Doc. No. 73-2, depo. p. 96). Dixon was not told to select people based on their age, and he contends that age had nothing to do with his selection of people to terminate in the RIF. (Doc. No. 73-2, depo. p. 83, 85-86; Doc. No. 18-2, ¶ 6).

         1. Plaintiff Bradley Jones

         At the time of the RIF, Bradley Jones, 53 years old, was a Designer IV/Technician in the traffic design subgroup of the Tampa Transportation division. He was one of three employees in that subgroup. The traffic design subgroup did plans for four types of work: (1) signalization, (2) signing and pavement marking, (3) lighting, and (4) Intelligent Transportation System (“ITS”). (Doc. No. 73-3, depo. p. 68-69). Jones was a senior designer for two types of plans-(1) signalization, and (2) signing and pavement marking. (Doc. No. 73-2, depo. p. 164). While working for Defendant, Jones did not do plans for the other two areas. (Doc. No. 73-2, depo. p. 164; Doc. No. 73-6, depo. p. 33).

         Dixon selected Jones for termination in the RIF, rather than Jeremy Leuschke (age 34, who had less experience than Jones and whom Jones had helped train) or Anu Weerasuriya (age 50, who had been hired the year before the RIF). (Doc. No. 73-2, depo. p. 176-77, 219; Doc. No. 73-3, depo. p. 51; Doc. No. 75-1, depo. p. 6, 32-33; Doc. No. 76-3, p. 2). Dixon selected Jones for termination because there would not be a loss of capabilities by terminating him-the remaining people could do more things than Jones could. (Doc. No. 73-2, depo. p. 185, 193). Specifically, Leuschke and Weerasuriya were Professional Engineers; Jones was not. (Doc. No. 73-6, depo. p. 33-34). Therefore, they (and not Jones) could sign and seal engineering documents and perform quality control reviews. (Doc. No. 73-2, depo. p. 183, 185; Doc. No. 73-5, depo. p. 36). Additionally, Leuschke and Weerasuriya had done lighting and ITS work for Defendant, which Jones did not do. (Doc. No. 73-2, depo. p. 183). Leuschke had done signalization and signing and pavement marking work prior to the RIF, so he could do all four types of work that the subgroup did. (Doc. No. 73-2, depo. p. 184).

         After Jones was terminated, his work was mostly absorbed by Leuschke (who was 34 years old at the time of the RIF). (Doc. No. 73-2, depo. p. 189; Doc. No. 75-1, depo. p. 6). Some employees in the roadway subgroup were also cross-trained to help absorb Jones' work. (Doc. No. 73-2, depo. p. 189).

         When Dixon's deposition was taken in December of 2017, the traffic design subgroup had three people: (1) Weerasuriya, (2) Chowdury Haider, and (3) Soufani. (Doc. No. 73-2, depo. p. 216). Haider and Soufani were both hired in late 2016; both are engineers. (Doc. No. 73-2, depo. p. 216-17).

         After Jones' termination but before Haider and Soufani were hired, Defendant had hired Arosha DeSilva into the traffic design subgroup; she was also an engineer. (Doc. No. 73-2, depo. p. 219). She was hired in late 2016, but she resigned. (Doc. No. 73-2, depo. p. 219-20).

         2. Plaintiff Paula Taylor

         At the time of the RIF, Paula Taylor, 52 years old, was one of two administrative assistants (“AA”) within the Transportation division in Tampa. (Doc. No. 73-2, depo. p. 98). The other AA was Laura Self, who was 40 years old at the time of the RIF. (Doc. No. 73-2, depo. p. 98; Doc. No. 61-9, depo. p. 14). Taylor was part of the PD&E subgroup, and Self was a part of the roadway and drainage subgroups. (Doc. No. 73-4, depo. p. 116-17, 189; Doc. No. 73-8, depo. p. 17). According to Dixon, there was not enough work to keep both Taylor and Self, as they both only had enough work to fill up 50-60% of their time in 2014 and 2015.[2] (Doc. No. 73-2, depo. p. 98, 109).

         Dixon stated that he selected Taylor for termination because Self had some capabilities that Taylor did not have. (Doc. No. 73-2, depo. p. 98). Specifically, Dixon stated that Self had more interaction with the company's clients. (Doc. No. 73-2, depo. p. 112-13). Additionally, Self had used the Electronic Review Comments (“ERC”) system, which is a web-based program utilized by the FDOT; Taylor had not used the ERC system as much as Self. (Doc. No. 73-2, depo. p. 98; Doc. No. 73-4, depo. p. 118-19). Also, Self knew how to use the Project Solve system, a web-based program, that Taylor did not know how to use because the PD&E group that Taylor worked for did not use that program. (Doc. No. 73-2, depo. p. 98-99; Doc. No. 73-4, depo. p. 117). Self also knew how to use Projectwise, a system that allows global file sharing, which Taylor did not know how to use. (Doc. No. 73-2, depo. p. 98-99; Doc. No. 73-4, depo. p. 117).

         Dixon believed that both Self and Taylor were equally qualified, except that Self had experience with the systems described above that Taylor did not have. (Doc. No. 73-2, depo. p. 101). Additionally, Self had experience with the submittal process, which Taylor did not have due to her work in the PD&E subgroup. (Doc. No. 73-2, depo. p. 113). When asked about their performance, Dixon stated that both Self and Taylor did a good job. (Doc. No. 73-2, depo. p. 107). However, Dixon noted that on one occasion, he had an issue with Self being on the internet instead of doing work. (Doc. No. 73-2, depo. p. 108, 111).

         Dixon selected Taylor for termination in the RIF. Dixon told Taylor that she was being terminated due to a lack of work. (Doc. No. 73-2, depo. p. 125). Self took over Taylor's duties after the RIF. (Doc. No. 73-2, depo. p. 124). When Dixon's deposition was taken in December of 2017, no one had been hired as an AA in the Tampa Transportation division since Taylor's termination. (Doc. No. 73-2, depo. p. 219).

         3. Plaintiff Hamid Ashtari

         At the time of the RIF, Hamid Ashtari, 56 years old, was an Engineer IV in the drainage subgroup in the Tampa Transportation division. He had seven other co-workers in that subgroup, and Dixon terminated two people from that subgroup. Specifically, Dixon selected Ashtari and Jason Dunn (age 37) for termination in the RIF; however, Dixon stated that they were both very good engineers. (Doc. No. 73-2, depo. p. 151-52).

         Dixon selected Ashtari for termination for two main reasons. First, Ashtari was the only employee in that subgroup that had clients that had stated that they did not want to work with him. (Doc. No. 73-2, depo. p. 133, 141). Specifically, Dixon stated that two clients-District 7 and Turnpike-had stated that they did not want to work with Ashtari. (Doc. No. 73-2, depo. p. 133-140). Dixon admitted Turnpike's issue with Ashtari began more than ten years before the RIF, but the client did not want Ashtari working on any Turnpike projects. (Doc. No. 73-2, depo. p. 138-39, 161; Doc. No. 73-1, depo. p. 78-82). Likewise, Dixon stated that District 7's issue with Ashtari began more than fifteen years before the RIF. (Doc. No. 73-2, depo. p. 139, 158). Dixon admitted that he did not believe that Ashtari was at fault with regards to District 7, but the client did not want Ashtari working on any of its projects. (Doc. No. 73-2, depo. p. 139-40). However, Ashtari still worked on District 7 and Turnpike projects after the incidents that caused these clients to request that he no longer work on their projects. (Doc. No. 73-2, depo. p. 159-61).

         Second, Dixon stated that Ashtari failed to follow standard operating procedures (“SOPs”) for quality control the year prior to the RIF. (Doc. No. 73-2, depo. p. 141-42, 146-49). In March of 2015, Ashtari was given a written reprimand for this incident (which states that it covers the period between November 2014 and February 2015), which was signed by Dixon. (Doc. No. 73-1, p. 219-21).

         After Ashtari was terminated, his work was absorbed by the remaining people in his subgroup. (Doc. No. 73-2, depo. p. 155). Ashtari contends that Frank Muir, who was an intern for Defendant while finishing his engineering degree at the time of the RIF, was hired by Defendant a few months after the RIF. (Doc. No. 73-1, depo. p. 68, 178-79). Muir was in his mid-twenties at the time. (Doc. No. 76-4, p. 4).

         D. The Process After Dixon Selected People to be Terminated

         Once Dixon selected the people to be terminated in the RIF, he gave the list of people to Chesser. (Doc. No. 73-5, depo. p. 37). Chesser then discussed the list with Robert and Forst to ensure that the people on the list came from the groups that needed to be reduced based on the forecasted workload. (Doc. No. 73-5, depo. p. 37-38; Doc. No. 73-6, depo. p. 47; Doc. No. 73-7, depo. p. 56). Thereafter, the list was forwarded to Human Resources, and the selected employees were terminated. (Doc. No. 73-5, depo. p. 39; Doc. No. 73-7, depo. p. 58).

         E. The EEOC

         After Jones was terminated, he filed a charge of age discrimination with the EEOC. (Doc. No. 16-3). The EEOC investigated Jones' charge and discovered that during the June 2015 RIF, Defendant terminated twenty-three employees nationwide, twenty-one of which were over 40 years old (the other two were 31 and 37 years old). (Doc. No. 73-2. p. 275, 277). Of those twenty-three people, Plaintiffs were three of seven individuals terminated from the Tampa Transportation division. Five of these seven Tampa employees terminated during the RIF were over 40 years old, and Dixon selected all seven of them for termination.

         The EEOC asked Defendant about the specific criteria used to select Jones for termination, and Defendant responded with a document that was created partially before the RIF and partially after. (Doc. No. 73-2, depo. p. 213; Doc. No. 73-2, p. 279-280). The response included an eight-month forecasted workload for the traffic design subgroup that showed that less than 3 employees were needed for the forecasted period; this forecast was created prior to the RIF. (Doc. No. 73-2, depo. p. 213; Doc. No. 73-2, p. 279-280). The response included a written explanation of how the forecast was used-the forecast showed that one person needed to be terminated from the subgroup and that Jones was selected because, based on his capabilities, his selection would cause the least impact on the subgroup. (Doc. No. 73-2, p. 279-280). However, the forecast showed that eight months out (January 2016), Defendant's projected workload was expected to require 2.8 employees. (Doc. No. 73-2, p. 279-280; Doc .No. 73-2, depo. p. 215).

         F. This Lawsuit

         On January 6, 2017, Jones filed the instant collective action against Defendant, alleging that his selection for the RIF was a result of age discrimination. Taylor and Ashtari opted into the collective action.

         Plaintiffs contend that they were selected for termination due to their age, noting that twenty-one of the twenty-three people terminated in the RIF nationwide were over 40 years old, and five of the seven employees terminated from the Tampa Transportation division were over 40. Plaintiffs point to the following evidence to support their contention that they were selected for the RIF due to their age.[3]

         1. No. Need for a RIF

         Plaintiffs contend that Defendant's own records and witness testimony do not support its “lack of work” justification for the RIF; instead, the RIF was an excuse to terminate older employees. As an example, Plaintiffs point to the workload projection that Defendant submitted to the EEOC in defense of Jones' claim, which showed that only .9 employees were needed in May of 2015 to do 120 hours of work for the traffic subgroup. However, at that time, there were three people in that subgroup, and Jones, himself, had worked 182.5 hours in May of 2015. (Doc. No. 76-6).

         Plaintiffs argue that Defendant used the “lack of work” excuse when terminating Steve Armstrong in 2012 when he was over 40 years old. (Doc. No. 73-2, depo. p. 169-73). Yet, Defendant brought Armstrong back as a contractor to help Defendant with its workload, and he was still working as a contractor for Defendant at the time of the 2015 RIF. (Doc. No. 73-2, depo. p. 169-73; Doc. No. 73-3, depo. p. 46-47).

         Plaintiffs also point out that on Dixon's March 2016 performance appraisal, Defendant noted two things: (1) that it had achieved 200% of its sales goal, totaling $24 million, and (2) the Tampa Transportation division was on track to achieve over $10 million in gross revenue when the goal was less than $8 million. (Doc. No. 73-5, p. 122). Taylor also contends that Jim Mykytka, a stockholder, told her that there was a $24 million backlog of work at the time of the RIF. (Doc. No. 73-4, depo. p. 158-59).

         Finally, as of Dixon's December 2017 deposition, Defendant had more employees at its Tampa office than it had prior to the RIF. (Doc. No. 73-2, depo. p. 64). As of Chesser's December 2017 deposition, Defendant had more employees in his region for the Transportation division than it had prior to the RIF. (Doc. No. 73-5, depo. p. 18).

         2.Ageist ...


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