OPINION ORDER
STANLEY CHESLER, District Judge
This matter comes before the Court upon the motion filed by Plaintiff Koger, Inc. ("Plaintiff" or "Koger") to certify the Court's interlocutory Orders of March 9, 2009, April 14, 2009 and July 7, 2010 for appeal pursuant to 28 U.S.C. § 1292(b) [docket entry 88]. In relevant part, the Order of March 9, 2009 granted Defendants' motion to dismiss claims based on employment contracts, concluding in an accompanying opinion that (1) Slovakian law applied to the question of whether valid contracts existed and (2) as such, the employment contracts were invalid and unenforceable because they were not written in Slovakian. The April 14, 2009 Order denied Plaintiff's motion for reconsideration of the March 9, 2009 Order, and the July 7, 2010 Order denied Plaintiff's second motion for reconsideration, a motion Plaintiff filed with the express permission of the Court. Defendants have opposed the motion to certify the interlocutory orders for appeal. The Court has considered the papers submitted by the parties and rules based on the written submissions and without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, the Court will deny Plaintiff's motion.
Generally, only "final decisions of the district courts of the United States" may be appealed to the courts of appeal. 28 U.S.C. § 1291. The Supreme Court has held that "[t]he finality requirement of 28 U.S.C. § 1291 embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing proceeding by interlocutory appeals." United States v. Nixon, 418 U.S. 683, 690 (1974). Interlocutory orders, such as the three orders at issue in this motion, may not be appealed, unless the district court certifies them pursuant to 28 U.S.C. § 1292(b). In relevant part, that statute provides as follows:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).
According to the statute, certification may not be granted unless three criteria are met. The order from which appeal is taken must: "(1) involve a controlling question of law, (2) offer substantial ground for difference of opinion as to its correctness, and (3) if appealed immediately materially advance the ultimate termination of the litigation." Katz v. Carte Blanche Corp., 496 F.2d 747, 754 (3d Cir. 1974) (en banc). The decision to certify an order under section 1292(b) is left wholly to the discretion of the district judge. Coopers Lybrand v. Livesay, 437 U.S. 463, 474 (1978). A court may deny the application, even if all three of the criteria are present. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976) (citingKatz, 496 F.2d at 754). Indeed, noting that "Congress carefully confined the availability of such review," the Supreme Court has held that even after a district court has in its discretion certified an order under section 1292(b), a court of appeals may nevertheless decline to entertain the appeal if the appellant fails to meet its burden of "`persuading the court of appeals that exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Coopers Lybrand, 437 U.S. at 475 (quotingFisons, Ltd. v. United States, 458 F.2d 1241, 1248 (7th Cir. 1972)).
Before turning its attention to the application of this legal standard to the instant motion, the Court feels compelled to note the substantial delay between the entry of the orders from which Plaintiff would like to take an "immediate" appeal and the filing of this motion on August 4, 2010. While it is true, as Plaintiff argues, that neither section 1292(b) nor interpretive caselaw set any time constraints on when a party must file such a motion for permission to seek prompt review of a non-final order, the entire procedure for departing from the normal course of appealing only final orders suggests a need for timeliness. Indeed, the statute itself requires the applicant to demonstrate that "immediate" appeal of an interlocutory order will materially advance the termination of the litigation. Moreover, the statute requires that application to the court of appeals must be made within 10 days of the entry of the district court's order certifying a non-final order for appeal. 28 U.S.C. § 1292(b). Delay between entry of the order for which certification is sought and the filing of a motion for this relief has been considered as a factor militating against granting certification. See Ferraro v. Secretary of HHS, 780 F.Supp. 978, 979 (S.D.N.Y. 1992). Although the instant motion by Koger was filed within a month of the July 7, 2010 denying a second motion for reconsideration, it was in the March 9, 2009 Order that the Court decided the substantive issue Koger would like the Third Circuit to review "promptly." The Court takes note of this factor as indicative of the inappropriateness of a certifying the three orders at issue for appeal.
In any event, the Court will deny the motion because the three requisite criteria of section 1292(b) have not been met. Plaintiff has failed to persuade the Court that an appeal may materially advance the resolution of this action. The issue the Court decided in the March 9, 2009 Order goes only to the contractual theories of relief Plaintiff pleads based on allegations that Defendants used Koger's confidential information while working for a competitor of Koger to develop competing software. This same alleged misconduct underlies Plaintiff's other, remaining claims. Certification would thus neither materially advance this action nor save the court and the parties substantial time and expense, as Plaintiff would nevertheless have to develop its non-contract claims based on Defendants' alleged stealing of code and use of Koger's confidential information in their employment by Koger's competitor. Further, as Defendants indicate in their opposition brief, assuming for the sake of argument that Plaintiff were successful in appealing the Court's orders regarding the unenforceability of the employment contracts for not being written in Slovakian, a remand from the Third Circuit to this Court would require the parties to continue litigating various other questions which were never reached about the enforceability of the contracts.
The Court additionally notes the status of the related and parallel litigation in Ireland in which Koger sought relief against the competitor company that employed the individual Defendants named in this action (hereinafter, the "Irish litigation"). As the parties are aware, this action had been stayed pending a resolution of the Irish litigation, given the substantial overlap of issues and the likelihood that a decision in the Irish litigation would obviate many if not all of Koger's claims in this case regarding Defendants' alleged "aiding and abetting" the defendants in the Irish litigation by stealing code for the benefit of Koger's competitor company. The Irish litigation has gone to trial, and the Irish High Court issued its judgment in October 2010 dismissing Koger's claims. While this Court does not have any information concerning the finality of that decision, it finds that the impact of the decision in the Irish litigation on this action further militates against granting the extraordinary relief of allowing Plaintiff to bypass the usual appellate channels.
In short, the Court finds that certification pursuant to section 1292(b) is not warranted, and in its discretion, declines to grant Plaintiff the requested relief. Accordingly,
IT IS on this 3rd day of November, 2010,
ORDERED that Plaintiff's motion to certify the Court's interlocutory Orders of March 9, 2009, April 14, 2009 and July 7, 2010 for appeal pursuant to 28 U.S.C. § 1292(b) [docket entry 88] be and hereby is DENIED.
tion to look at," Thomas responded: "[w]e
may have looked at it." (Thomas Dep. 79:25-80:3 (emphasis added).)
In its argument concerning "constructive discharge," the School Board also challenges whether transferring Marlow to the CIS position would have created "intolerable conditions." (Def.'s Br. at 24-25.) In doing so, the School Board analyzes the different conditions of employment between the CIS position and the DBGR position. (Id.) Although "constructive discharge" is not at issue, the analysis of the two positions is relevant to determining whether an adverse employment action occurred at all, simply from the decision to transfer Marlow which she characterizes as a "demotion." (Pl.'s Br. at 8.)
A modification in job duties and responsibilities, even duties that are encompassed within a former job description, may nevertheless constitute an adverse employment action.Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71 (2006). "Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and should be judged from the perspective of a reasonable person in the Plaintiff's position, considering all circumstances." Id. at 71. Although the School Board places significant emphasis on the minimal decrease in pay that Marlow would incur from the proposed transfer, it nonetheless constituted a decrease. (Carter Aff. at Ex. 1; Def.'s Br. at Exs. I, J; Pl.'s Br. at Ex. 22.) She also would have "lost" her car allowance of $9,000 per year. (Carter Aff. ¶ 5.) Most notably, however, she would have been demoted to a position that she formerly supervised and which was two grade levels below her prior position. (Pl.'s Br. at Ex. 22.)
Although not dispositive, the Court notes that Marlow told Newsome that the prospective decrease in pay was the reason that she viewed the employment action as discriminatory. (Marlow Decl. ¶ 13.) In fact, during the deliberative process, Thomas and Newsome considered maintaining Marlow's pay at "Grade Level 44," at least for one year, but instead chose to reduce it to "Grade Level 42," upon her prospective transfer to CIS. (Compare Pl.'s Br. at Ex. 14 with Def.'s Br. at Ex. V.)
The School Board also emphasizes the pecuniary outcome of Marlow's decision to retire in 2009, as opposed to remaining employed for five additional years. True, the undisputed evidence indicates that her VRS retirement would have increased by $10,008 per year if she had remained employed for those additional years. (Carter Aff. at Ex. 1.) However, Marlow would have been required to work five additional years with a yearly compensation decrease of $14,781. (Id.) The Court cannot conclude, as a matter of law, that it would have been to Marlow's advantage to accept the transfer, working for less compensation, only to receive a marginally higher retirement benefit from being employed five additional years in the VRS system. Indeed, the School Board's analysis discounts the value of early retirement itself, which becomes considerably more attractive when a person is faced with the prospect of diminishing compensation.
However captioned, as a transfer or a demotion, the elimination of the DBGR position and the proposed transfer of Marlow to Administrator of CIS is adequate to present a triable question of whether an adverse employment action occurred. Therefore, summary judgment is not available on at least that element of Plaintiff's proffered prima facie case.
2.) Retention of Younger Employees and Age Neutrality
The School Board cannot, from the record, challenge the fact that the younger Director-level employee, Bullis, retained his position. That, alone, may suffice to satisfy the second disputed element of Marlow's prima facie case. However, the School Board also argues that the RIF decision was an age-neutral one — addressing the ultimate issue. The analysis of that issue focuses on the Plaintiff's rebuttal of the School Board's stated non-discriminatory reasons for the RIF. Thus, the Court must evaluate that argument, analyzing whether the same evidence asserted (i.e. Newsome's "21st Century skills" PowerPoint and the tech educators' RIF) present a genuine issue of material fact on the question of age-neutrality that precludes the granting of dispositive relief.
C. The School Board's Legitimate, Non-Discriminatory Reasons
Once the Plaintiff has established a prima facie case, the burden of persuasion shifts to the School Board to articulate legitimate, non-discriminatory reasons for the employment action.Reeves, 530 U.S. at 142. "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Id. (quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993). Once the defendant offers admissible evidence sufficient for the jury to conclude that legitimate non-discriminatory reasons were the cause of the adverse employment action, "theMcDonnell Douglas framework — with its presumptions and burdens" — disappears. Id. at 142-43. The Plaintiff must then carry the ultimate burden of proving intentional discrimination based on age. Id. at 146. Such proof may be separate evidence of age animus or the resulting reasonable inference of discrimination based on evidence that the employer's explanation is false. Id. at 146-47. Marlow offers both measures of possible proof.
The School Board has offered, at a variety of times and under a variety of circumstances, several legitimate, non-discriminatory reasons for terminating the DBGR position. From the outset, it has asserted that the fiscal crisis brought about by various economic circumstances was the principal reason for the decision to terminate the position. (Def.'s Br. at Ex. V; Newsome Aff. ¶¶ 15-19; Thomas Aff. ¶¶ 4-10.) It has also cited its RIF policy, indicating that it targeted the Business and Government Relations Department, not the Community Relations Department, and therefore the School Board was compelled to terminate the DBGR position. (Evans Aff. ¶ 21.) Finally, the School Board has emphasized that the Superintendent's "[21st Century skills] comment can only fairly and reasonably be viewed as evidence of his belief that Bullis was better skilled than Marlow." (Def.'s Br. at 19.) Indeed, the School Board argues that whether
Newsome was accurate in this assessment is irrelevant, and that such a rationale would still constitute a legitimate non-discriminatory basis for the RIF decision to eliminate Marlow's position. (Id.)
To successfully rebut the School Board's legitimate, non-discriminatory reasons, Marlow must show that the School Board's explanation is "unworthy of credence," or otherwise offer "other forms of circumstantial evidence sufficiently probative of age discrimination." Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004) (citations omitted). Moreover, establishing that the employer's reason was false becomes part of, and often considerably assists, in proving that the real reason was the result of intentional discrimination. Reeves, 530 U.S. at 147 (citation omitted).
1.) Fiscal Year 2010 Budget Shortfall
The Court notes that there is no disputing the overwhelming fiscal crisis that the School Board was faced with in the spring of 2009. (Def.'s Br. at Exs. Q, R, S, T; Pl.'s Br. at Exs. 6, 7, 22; Newsome Aff. ¶ 14; Thomas Aff. ¶ 4; Kitchen Aff. ¶ 10.) Indeed, the shortfall for fiscal year 2010 swelled to $52 million, and the School Board had no choice but to make a number of budgetary reductions. The January 30, 2009 memo from Newsome to Marlow asserts that the fiscal crisis was the sole reason for terminating the DBGR position. (Pl.'s Br. at Ex. 22.) The parties have both established that the fiscal crisis was severe, and the only disputed point is when the crisis became clear, to whom, and to what extent. (Compare Def.'s Br. at 8-11 with Pl.'s Br. at 4-7.) Thus, the School Board's fiscal crisis is, without question, one legitimate, non-discriminatory basis for the employment action at issue. However, the fiscal crisis is but the backdrop for the RIFs that resulted from the budget cuts, and the manner in which the RIF decisions were made is central to the case. See, e.g., Herold, 864 F.2d at 320 (holding that the manner in which a RIF was applied could be discriminatory). Thus, the fiscal realities facing the School Board are not dispositive.
Based on this dispute of fact, Marlow asserts, as only one of her theories of liability, that Newsome knew the extent of the pending crisis when he initially transferred her to the DBGR position. (Compl. ¶ 16; Pl.'s Br. at 5-6.) The evidence in the record indicates otherwise. Although there is evidence of some budgetary restrictions and fiscal strain on the horizon, the first indication of the magnitude of the problem surfaced in September and October 2008 — after Marlow accepted the DBGR position. (Def.'s Br. at Exs. Q, R.) If such were the sole theory of liability, the Court might be compelled to grant summary judgment. But, such is not the case.
2.) Application of the School Board's RIF Policies
Marlow has made the application of the School Board's RIF policy a central issue in her case, pleading that it was not properly implemented with respect to Marlow and Bullis. (Complaint ¶¶ 20, 26.) In response, the School Board has argued that Marlow has misapplied the policy, and that proper application of that policy essentially required the School Board to terminate her, rather than Bullis. (Def.'s Br. at 21; Def.'s Reply Supp. Mot. Summ. J. ("Def.'s Reply") at 6-7.) Thus, the School Board argues that application of the RIF policy is, itself, a further legitimate, non-discriminatory reason for the decision to terminate the DBGR position. But to reach such an outcome requires a factual determination of what the School Board meant by the phrase "position classification," as that term of art is used in the School Board's RIF policy. The policy is vague and ambiguous with respect to the phrase, as the School Board classifies employees in a number of different ways, including job title, grade level, and position
number. (See Def.'s Br. at Exs. I, J.)
At oral argument, the School Board asserted that the phrase is not vague or ambiguous. A word is "vague" and "ambiguous" if its meaning is "uncertain." Black's Law Dictionary 88, 1584 (8th ed. 2004). Given the variety of modes by which the School Board classifies its employees, and the apparent need for the Superintendent to define the phrase, the meaning of "position classification" was very much uncertain in the spring of 2009. (Pl.'s Br. Ex. 18; Def. Br. at Exs. I, J.)
The Superintendent and the School Board admit as much by their post hoc interpretation of the phrase "position classification." (Pl.'s Br. at Ex. 18.) On April 28, 2009, nearly three months after Newsome informed Marlow of his decision to RIF her position, he issued a memorandum interpreting several aspects of the RIF policy. (Id.) Most notably, he interpreted the term "position classification" as those "graded classifications listed in the document entitled Chesterfield County Public School Coordinated Pay Plan, 2008-2009 School Year." (Id. (emphasis in original).) Based on the exchange at oral argument, the statement apparently equates "position classification" with one's job title. According to such an interpretation, Marlow and Bullis are not in the same "position classification;" and, therefore, only Marlow could be terminated once the Superintendent made the decision to make the changes in the Business and Government Relations Department. (Def.'s Reply at 6-7.) Indeed, the School Board asserts that it could not have legally eliminated Bullis job as a result of the RIF policy. There is, however, no legal authority for such a proposition.
The School Board appears to cite Dugan v. Albemarle County School Board, 293 F.3d 716 (4th Cir. 2002), and Williams v. Cerberonics, 871 F.2d 452 (4th Cir. 1989) in support of its position. In Dugan, the Court of Appeals specifically noted that in discrimination claims involving local school system RIF policies, the issue is not whether Virginia law mandates the RIF policy, but whether the employment action violated federal anti-discrimination law. Dugan, 293 F.3d at 722. Williams likewise contains no such statements to the contrary. Thus, neither case provides the authority that the School Board seeks.
Alternatively, Marlow emphasizes that the post hoc rationalization of the Superintendent's decision to RIF Marlow constitutes affirmative evidence that the School Board's stated application of the RIF policy was merely pretextual, unworthy of belief. (Pl.'s Br. at 27.) Indeed, "[t]he fact that an employer has offered inconsistent post hoc explanations for its employment decisions is probative of pretext." Dennis, 290 F.3d at 647 (citingEEOC v. Sears Roebuck, 243 F.3d 846, 852-53 (4th Cir. 2001)). Here, the post hoc interpretation issued by the Superintendent, viewed at this stage in the light most favorable to the Plaintiff, indicates that the Superintendent and School Board knew, at the very least, that the RIF policy was ambiguous with respect to the definition of "position classifications." It also provides a basis to conclude that the Superintendent exercised significant discretion in applying the policy, especially where he, alone, interprets it. By conforming the policy to support termination of Marlow's position, as opposed to that of Bullis, the Superintendent's post hoc interpretation is a fact probative of pretext.See Dennis, 290 F.3d at 647.
Such broad interpretive authority also belies the School Board's argument that the Superintendent's authority is limited, and that the School Board has the ultimate authority in approving a RIF. (See Def.'s Br. at 17.)
Another RIF decision provides further evidence that the RIF policies may be pretextual. As noted earlier, contemporaneously with the decision to eliminate the DBGR position, Newsome proposed, and the School Board accepted, the RIF of the two technology education teachers under dubious circumstances, using a list that supposedly included all technology educators who were listed according to seniority, and including a summary of their college coursework. (See Pl.'s Br. at Exs. 16, 19; Gray Decl.; Hill Decl.) Apparently, pursuant to the RIF policy that allows the Superintendent to make RIF recommendations based on "skills" of the teachers relative to the "needs" of the school system in lieu of seniority, he terminated two technology education teachers. (Pl.'s Br. at Exs. 16, 19; Gray Decl. ¶¶ 9-10; Hill Decl. ¶¶ 6-7.) The critical "needs" of the school system and "skills" of the teachers cited by the Superintendent involved "technology skills," which he equates to "21st Century skills." (Newsome Dep. At 53-55; Gray Decl. ¶ 9; Hill Decl. ¶ 7.)
In opposing the Plaintiff's motion to compel, the School Board persists in its argument that the technology educator RIF is irrelevant to Marlow's case. (Def.'s Br. Opp'n Mot. Compel at 3-4.) The "technology skills" criterion, because it may equate with "21st Century skills," was directly compared with seniority by the Superintendent's analysis. Thus, together with the other possible evidence of age-bias, the technology educator RIF could make it more likely that age was a factor in applying "21st Century skills" as an employment criterion. See Fed.R.Evid. 401.
There is evidence in the RIF of the technology education teachers to suggest that the RIF reflected age-bias on the part of the decision-maker. First, the most senior and the oldest teachers on the list were the only two "laid off" as a result of the RIF. (Pl.'s Br. at Ex. 16.) Second, and most significantly, one of the youngest technology educators was omitted from the list, effectively insulating her from the pool subject to the RIF. (Compare Pl.'s Br. at Ex. 16 with Pl.'s Br. at 19.)
The RIF of the technology education teachers resulted in a grievance by one of the teachers eliminated — one James Hill ("Hill"). During his subsequent grievance process, the Superintendent's representative justified the decision in part on the need to retain teachers qualified to teach "Auto CAD" classes. (Hill Decl. ¶ 6; Gray Decl. ¶ 8.) Neither Hill nor the other terminated teacher taught such classes. (Id.) However, the much younger teacher who was not named on the list also did not teach "Auto CAD" classes. (Hill Decl. ¶ 10; Gray Decl ¶ 12.) Thus, although the younger teacher possessed at least one of the supposed deficiencies used to terminate Hill, that teacher was never even considered for the RIF. Such a scenario presents additional evidence from which a jury could infer that the Superintendent's use of technology or "21st Century skills" as a RIF criterion was not age-neutral.
Finally, the School Board's argument that the RIF policy dictated only one outcome, and that Newsome's hands were, so to speak, otherwise "tied," is inconsistent with the deposition testimony in the case. Thomas testified in deposition that she met with Marlow and Frickert to discuss a proposal to eliminate the CIS position and subsume those responsibilities under Marlow as DBGR. (Thomas Dep. 127:20-23; Thomas Aff. ¶ 3; Frickert Dep. 10-12.) Marlow and Frickert protested, arguing that such an action would adversely impact accreditation, and ultimately, the decision was made to terminate Marlow's position. (Thomas Dep. 127:20-23.) Thus, it can be argued that the Superintendent's hands were not "tied." Indeed, it appears that in making decisions about which positions to eliminate, Thomas and Newsome were dealing with essentially interchangeable parts. See Herold, 864 F.2d at 320 (job duties were "interchangeable," undermining argument that employer could not "bump" a worker with less seniority or with a different "job classification"). Further illustrating the point, Marlow was previously responsible for the duties subsumed in the DBGR position when she served as DCR for nearly twenty years. Thus, the DCR and DBGR positions appear to simply split the responsibilities formerly encompassed in a single position. Which position would subsume the roles of the other is of no apparent consequence, at least on the basis of the present record.
An otherwise "neutral RIF method" does not give rise to an inference of age discrimination. See, e.g., Mereish, 359 F.3d at 338. There is at least some evidence, however, that the RIF process employed in regard to Marlow was not "neutral." Although it is not this Court's role to "second-guess" the Superintendent and School Board's managerial decisions, where such decisions might be "improperly motivated by discriminatory animus," a plaintiff may pursue a claim under the ADEA. Accordingly, the School Board's reliance on the RIF policies as a legitimate, non-discriminatory reason for its employment decision regarding Marlow is subject to challenge by sufficient evidence to create a material issue for a jury.
3.) Marlow's "21st Century Skills"
Finally, the School Board offers voluminous evidence supporting its argument that Newsome's reference to "21st Century skills" is nothing more than a reference to a well-established skill set, which constitutes a legitimate, non-discriminatory reason for Newsome's decision to RIF Marlow. (Def.'s Br. at 19.) Indeed, from the record, the Plaintiff cannot legitimately contest the fact that one meaning of the term "21st Century skills" refers simply to a recognized set of skills. (See Def.'s Br. at Exs. E, F, H.) But that is not the issue. Rather, the issue is whether the Superintendent harbored an age-related bias when evaluating employees' "21st Century skills."
At oral argument, counsel for the School Board concluded his argument by emphasizing, repeatedly, that no reasonable jury could infer discriminatory motives because of the voluminous evidence that "21st Century skills" are a recognized skill set. Indeed, the Court credits the evidence of same. However, any legitimately recognized skill could be associated with age in a discriminatory manner (i.e. stereotyped). That is the issue at hand.
In part, the School Board challenges the relevance of Newsome's "21st Century skills" comment, calling it a "gratuitous comment Marlow invited by suggesting that she replace Bullis, but which was wholly unrelated to any employment decision." (Def.'s Reply at 4.) Moreover, the School Board suggests that finances were the sole reason for Newsome's decision, while simultaneously discussing Marlow's inadequate "21st Century skills," and noting that such a
skill-deficit constitutes a legitimate, non-discriminatory reason for Marlow's RIF. (Def.'s Br. at 19; Def.'s Reply at 4-5.) Such a position may be valid, but the context and construction of such a comment is a matter of weight, not sufficiency, of the evidence. The School Board's arguments regarding the meaning of "21st Century skills" may be presented to, and accepted by, a jury, but the issue cannot be resolved on summary judgment. See Anderson, 477 U.S. at 255.
It is also worth noting that the School Board has only tacitly placed Marlow's qualifications in issue. Indeed, the School Board concedes that Marlow was meeting expectations throughout her tenure. (Def.'s Br. at 17.) Additionally, the School Board argues that whether the Superintendent correctly concluded that Bullis was more adept in the area of "21st Century skills" is irrelevant. (Id. at 19.) In general, and without additional evidence of age-bias, such a position may be correct. See Hill v. Augusta County School Board, 636 F. Supp. 2d 492 (W.D. Va. 2009). But here, Marlow offers substantial, superior qualifications to those of Bullis, as well as her twenty years of experience as DCR. (See Marlow Decl. ¶ 1.) She also offers more than a mere scintilla of evidence that the one criterion cited by Newsome — "21st Century skills" — may have reflected age-bias. See Jennings v. Univ. of N.C., 444 F.3d 255, 266 (4th Cir. 2006) (citing Anderson, 477 U.S. at 248).
On the present record, there is evidence that Newsome may have correlated competency in "21st Century skills" with age. The August 13, 2009 PowerPoint created and used by the Superintendent specifically associates competency in the area with age by its distinction between "digital natives" and "digital immigrants." (Pl.'s Br. at Ex. 25.) That distinction, as presented in the PowerPoint presentation, appears to associate "chronological age" with technological competency. See Mereish, 359 F.3d at 337 (distinguishing between the currency of a person's skill sets as opposed to "chronological age").
The parties both place great emphasis on the apparent age of persons depicted in the PowerPoint slides. Alone, the Court does not find the photographs sufficiently probative of the ultimate issue. Rather, the Court notes the written contents of the PowerPoint.
Moreover, the "CITE Survey" referenced at the beginning of the slide show required respondents to categorize their age as below 30 years of age, between 31 and 40, between 41 and 51, or 52 years of age and older. (Id.) Certainly, the Court does not question the social science involved with such a survey question. Nor does the Court weigh the veracity of the "digital native" versus "digital immigrant" question. Rather, the Court simply concludes that a jury could determine from such evidence that the Superintendent held an age-related bias as to competency with "21st Century skills." A jury also could reject the same conclusion. Either way, Newsome's PowerPoint slide is evidence of what he understood the term "21st Century skills" to signify with respect to age, even if it is a nationally-recognized term of art. Again, what the term meant to Newsome is ultimately an issue for the jury to resolve.
In isolation, evidence of the PowerPoint presentation may not be relevant, because it was not necessarily associated with Marlow's RIF. Indeed, "general or ambiguous remarks referring to the process of generational change create no triable issue of age discrimination." Mereish, 359 F.3d at 336-37 (citations omitted). In isolation, such references as contained in the presentation may merely reflect a trusim of business life. EEOC v. Clay Printing Co., 955 F.2d 936, 942-43 (4th Cir. 1992). But the evidence here is not to be viewed in isolation. The RIF of the technology educators, which invoked the criterion of "technological skills," provides potential evidence that age-bias may have resulted in the selective application of RIF policies. In addition, Newsome specifically referenced Marlow's "21st Century skills" when explaining the RIF
proposal. (Marlow Decl. ¶ 12.) Together, such evidence is sufficient to submit to a jury the question of whether age bias was the ultimate reason for Marlow's proposed demotion.
Therefore, there is sufficient evidence to suggest that the School Board's legitimate, non-discriminatory reasons were mere pretexts, and that impermissible age-bias was a more likely motivating factor. The Court cannot "disregard critical evidence favorable to the [plaintiff] — namely, the evidence supporting the [plaintiff's] prima facie case and undermining [defendant's] nondiscriminatory explanation." Reeves, 530 U.S. at 152 (citations omitted). Discrediting the evidence in such a way would require the Court to "impermissibly substitute[] its judgment concerning the weight of the evidence for the jury's."Id. at 153.
D. Age was the "But-For" Cause of the RIF Decision
Even after establishing a prima facie case and rebutting the employer's legitimate, non-discriminatory explanations, a plaintiff must still put forth sufficient evidence that age was the "but-for" cause of the adverse action. Gross, 129 S.Ct. at 2350. Notably, such evidence may, at the same time, significantly aid a plaintiff in establishing her prima facie case and in rebutting the employer's legitimate non-discriminatory reasons.See Reeves, 530 U.S. at 152-53; see also Herold, 864 F.2d at 320. Thus, the burden-shifting analysis of McDonnell Douglas disappears and only the ultimate burden remains at trial. In appropriate cases, however, a jury may be permitted to infer the ultimate fact of intentional discrimination from its rejection of the defendant's proffered legitimate, non-discriminatory rationale. Reeves, 530 U.S. at 147.
Here, Marlow has presented more than just a prima facie case and evidence that the School Board's stated reasons are pretextual — there is admissible, circumstantial evidence that the Superintendent harbored an age bias concerning "21st Century skills." The Court does not revisit its analysis with a redundant discussion of relevant facts, which were discussed in detail, supra, at Subsection C. However, the Court simply notes that such evidence of potential age-bias by the Superintendent precludes the granting of dispositive relief. "[S]ince `summary judgment is seldom appropriate in cases wherein particular states of mind are decisive as elements of [a] claim or defense,' courts must take special care in cases such as the instant one because motive often is the critical issue in employment discrimination cases."Ballinger v. North Carolina Agricultural Extension Service, 815 F.2d 1001, 1005 (4th Cir. 1987) (internal citations omitted).
In construing the Plaintiff's evidence on summary judgment, the Court emphasizes that it does not conclude that there was any wrongdoing, either by Newsome or the School Board. It is not the Court's role to conclude anything in regard to the ultimate issue. Rather, the Court concludes only that a reasonable jury, if it believed Marlow's evidence, and disbelieved the School Board's evidence, could find for Marlow at trial.See Reeves, 530 U.S. at 147 (citingSt. Mary's, 509 U.S. at 511).
VI. CONCLUSION
For the reasons stated herein, the Court hereby GRANTS the Plaintiff's motion for leave to file supplemental evidence and DENIES the Defendant's motion for summary judgment.
An appropriate Order shall issue.
Richmond, Virginia
Dated: November 3, 2010