*1 3553(a). § Because public. See U.S.C. well within its con-
the district court acted making finding,
siderable discretion has not rebutted Hylton
we conclude that that at- presumption reasonableness a within-Guidelines sentence.
taches to
Accordingly, we affirm the district dispense with oral judgment.
court’s con-
argument legal because the facts and adequately presented are in the
tentions argument
material before this court and process.
will not aid the decisional
AFFIRMED. HARRIS, Plaintiff-
Alexander
Appellant,
v.
POWHATAN COUNTY SCHOOL
BOARD, County, Powhatan Vir
ginia, Defendant-Appellee.
No. 12-2091. Appeals, States
United Court
Fourth Circuit.
Argued: Sept. 22, 2013.
Decided: Oct. *2 part, in vacated in and part,
Affirmed by opinion. Judge unpublished remanded in which opinion, GREGORY wrote the Judge and KEENAN Judge DAVIS Judge concurred. DAVIS wrote a concurring opinion. separate binding are not Unpublished opinions circuit. precedent GREGORY, Judge: Circuit appeals Alexander Harris the district granting summary judgment court’s order County in favor of the Powhatan School (“Board”) System on claims for following For the and race discrimination. reasons, part, part, we affirm in vacate in remand. and I. fifty-two years employment
After Board, with the Harris’ was elim- inated on March 2009. J.A. 518-20. Harris, seventy-two year-old African American, began his employment with the school district 1957 as a custodial work- gradually er. J.A. 148. He worked way up through supervisory posi- several and, recently, promoted tions most was be Director of Maintenance and Custodial by Superin- Services the Current Division tendent, Dr. 146- Margaret Meara. J.A. According job description, to his Har- responsibilities following: included the orders; scheduling reviеwing work Argued: Allyn Queen, Barbara Law- quality performed by work subor- Associates, Richmond, Virginia, rence & dinates; assisting skilled workers on diffi- Appellant. Stacy Haney, for Leann Reed tasks; maintaining inventory cult Smith, LLP, Richmond, Virginia, Ap- for equipment; carrying out a planning and Jr., pellee. Lacy, On brief: D. Patrick preventative program; maintenance re- Richmond, LLP, Virginia, Reed Smith staff; cruiting, training, evaluating and Appellee. аssisting budget preparation; with assigned by duties GREGORY, DAVIS, performing other Before KEENAN, Judges. Superintendent. Circuit J.A. 558-59. responsibilities vacations to his due employees, with most school As open annual at the start of readying limited law to schools 218-19; Ann. J.A. Va.Code 168-69. Harris estimates contracts. each J.A. each fall Harris $19,500 This meant that years. § 22.1-91. he lost over the J.A. form, intent to return fill out an had to 241-42. *3 to return for whether he wished indicating 2009, 29, Jаnuary Dr. re- On Meara 2008, In following year. November the stating from Harris he ceived a letter that form, representing the completed Harris in the near “considering was retirement to remain in his current that he wanted like to check into the future and would year. school for the 2009-2010 position annual recovery of amount of leave the Imig, his the form to Paul He returned my that I have over tenure.” J.A. 434. lost for the finаncial director supervisor and 2, 2009, February Imig sent a On memo- however, did Imig, J.A. 482. the district. recommending to Meara that randum Dr. instead, normal; the notice as not submit eliminated, noting be that position Harris’ in order to have discussions he held it over system approxi- it would save the school 483. retiring.
with Harris about J.A. $100,000 Imig J.A. 435. mately per time, Harris Imig same told Around the him of his wrote that had informed Harris even might be eliminated position that his retire, waiting and that he was intention to Dr. to return. J.A. 222. if he wished necessary pa- the complete for Harris to that told her Janu- Meara testified 10, February meeting, 2009 perwork. At a had February 2009 that Harris ary or to elimi- proposal the Board a considered to retire at the to him a desire expressed including positions, nate fourteen staff disputes Harris year. J.A. 47. end of the ultimately budget 2009-2010 Harris’.1 The J.A. Imig that he wantеd retire. telling the pro- Board included adopted the she Dr. Meara also testified that 225. 429. of J.A. Each posed staff reductions. herself, and with Harris raised the issue posi- three or custodial the maintenance retire, ready but he he was that stated eliminated, Harris’, was oc- including tions he mon- condition that receive on the of age over the cupied by an individual him. J.A. 48. was owed to ey he believed seventy, Id. agreement he had an alleges 4, 2009, e- Dr. Meara sent March an On to a system, dating back with the school recommending that Har- mail to the Board tenure, he superintendent’s prior formally eliminated of as position be portion of his paid be an unused would 1, In a second e-mail 2009. J.A. 514. July 168. retirement. J.A. upon annual leave 8, 2009, Dr. Meara informed March sent employees are Ordinarily, system schoоl that, ex- although Harris had the Board carry over annual leave not allowed retire, not he would pressed intent days. J.A. 431-32. forty-eight of excess large voluntarily unless he received leave entitled agreement that his Harris claims com- 513. Dr. Meara money. J.A. sum annual compensation for him to additional opinion that Harris municated her during the summer leave he accrued “every- hostage Board because holding to take permitted not he was months when However, as Dr. Meara. ris’ letter to dispute when the first parties Board 1. The out, posi- proposal eliminating points is included up Harris’ took matter it was February meeting contends that discussed tion. Harris 10 minutes of the meeting, during January a date then. J.A. appears been discussed to have it mean significant because would which is 505. prior to Har- was eliminated position that his granted summary one is afraid of what he and his friends will the Board’s motion for deposition, judgment, concluding In Dr. Meara that while do.” Id. her had made out facie of race clarified that she meant that Harris would cases n discrimination, complaints take his to friends in the he failed to show that 10, 2009, non-discriminatory NAACP. J.A. 78. On March the Board’s stated rea- eliminate pretext Board voted to sоns for the termination were budget. from the J.A. discrimination. J.A. 573. Harris filed a 2009-2010 518-20. meeting timely appeal. The minutes from that list Harris notice of J.A. 580.2 retired. J.A. having as II. 16, 2009,
On March
Dr. Meara and Rose
Studivant,
personnel
the director of
for the
review
grant
a district court’s
district,
school
met with Harris to discuss
novo,
summary judgment
viewing
de
*4
his retirement.
J.A. 85. Studivant states
facts in the
most
light
favorable to the
again
that
expressed
he
Prods.,
nonmoving pаrty. PBM
v.
LLC
retire,
wished to
but that it remained con-
Co.,
111,
Mead Johnson &
639 F.3d
119
tingent
being compensated
on
un-
his
(4th Cir.2011).
may only
affirm if we
used leave. J.A. 457. After Harris contin-
conclude that the evidence
establishes
to make
ued
it known that he intended to
no
jury
plain-
reasonable
could find in the
year
return to work the following
unless
tiffs favor. See Anderson v. Liberty Lob-
time,
paid
he was
for the leave
Dr. Meara
Inc.,
242, 251-52,
by,
477 U.S.
106 S.Ct.
informing
wrote him a letter
him that his
(1986).
2505,
wished to return could for a new A. position. J.A. 550. claim, prevail To on his ADEA Harris To account for the elimination of the age must show that was the “but for” the Board position, reassigned Harris’ su- cause of his termination. See v. Gross Wilson, pervisory youn- duties to Russell a Serv., Inc., 167, 177, FBL Fin. 557 U.S. ger man already Caucasian who was em- (2009) 2343, 129 174 S.Ct. L.Ed.2d 119 ployed by system, the school as well as two (rejecting theory “mixed motive” of liabili other mеmbers of the maintenance depart- ADEA).3 ty brought for claims under the 433, ment. given J.A. 459. Wilson was a discrimination, Lacking direct evidence of $10,000 stipend responsi- for his additional proceeds Harris under familiar bur bilities. J.A. 463. den shifting framework established in Green, against alleg- Douglas filed suit the Board McDonnell Corp. v. 411 VII, 792, 802-04, 1817, ing violations of Title 42 U.S.C. U.S. 93 S.Ct. 36 1981, (1973). 1983, § § 42 Age U.S.C. and the L.Ed.2d 668 See Hill v. Lockheed Inc., Discrimination in Employment Logistics Mgmt., Act Martin 354 F.3d (“ADEA”). (4th Cir.2004) (en banc) 277, J.A. 17-20. The distriсt court 285 (applying rejected by 2. The district court also Harris' claim is contradicted numerous court decisions compensate that the Board failed to him for applying the "but for” standard at the sum leave, finding his unused that no contract See, MVM, mary judgment stage. e.g., Sims v. pursue existed. J.A. 575-76. Harris does not Inc., 1327, (11th Cir.2013); 704 F.3d 1334 appeal. this issue on Astrue, 300, Billingslea Fed.Appx. v. 502 302- Cir.2012); (4th Corp., 03 v. Mo-Tech Rahlf argument 3. Harris' that the "but for” stan- Inc., 633, (8th Cir.2011). 642 F.3d оnly applies dard at trial is meritless. Harris authority proposition, cites no for this and it claim). working through ADEA he wished to continue Douglas McDonnell Second, employee, “the after approach, 2009-2010 school Under prima facie case of discrimi establishing flatly disputes Imig’s testimony a that he nation, em that the [must] demonstrate[ ] coming asked to be written out of the reason for ployer’s proffеred permissible year’s budget, contending he never action is taking an adverse Third, told he wanted to retire. Har- actually pretext for discrimination.” Id. January 2009 letter to Dr. Meara the Board As the district court found and merely stated that he considering re- concedes, Harris has established a tirement and that he first wanted to in- discrimination: he is a facie case quire about the annual leave funds he fеlt class, protected member of a the elimina he was owed. Harris also contends that in tion of his was an adverse em meeting with Dr. Meara and Studivant action, ployment performing he was 16, 2009, on March he express continued to job adequately at the time responsibilities voluntarily that he would leave if he action, job and his duties of the adverse pay received contested back аmount. were assumed an individual outside the Viewing light the record in the favor- most Washing Holland v. protected class. See Harris, able to he has demonstrated a Homes, (4th Inc., 208, 213 ton 487 F.3d question fact as to whether he ex- .2007). Cir pressed plans to retire. *5 case, Having established facie to ar employer
“the burden shifts to the
The district court also erred when
nondiscriminatory
legitimate,
ticulate a
only
it determined that
the belief of the
reason for the adverse
ac
opposed
Board itself—as
to Dr. Meara and
Hill,
If the em
tion.”
Here, offered for the Bоard two reasons working day any agent ... and (1) each its position: its elimination of Harris’ (2006) § (2) 42 2000e person.” such a U.S.C. retire, that Harris wanted to belief added). Hill, In ex (emphasis Court budgetary its need to address a shortfall. plained: presented We conclude that Harris has jury evidence from which a could sufficient who rests a aggrieved employee [A]n pretext find that both these reasons were Title VII or discriminаtion claim under discrimination. discriminatory ADEA mo- upon issue, employee tivations of a subordinate
As to the first a reasonable forward with sufficient evi- jury find that Harris did not indicate must come could First, employee that the subordinate a clear intent to retire. Harris sub dence authority as to be viewed possessed to return form such mitted his notice of intent 2008, principally responsible for indicating in Novembеr as the one receipt of the leave the actual decisionmaker for tation to retire without decision or 8, e-mail, two employer. funds. The March sent days before the Board’s final decision to (“Ti- 291; at also id. at 290 354 F.3d see position, eliminate the stated limit the and the ADEA do not tle VII sign told Dr. Meara he would not his re- or inquiry discrimination actions voluntarily leave un- papers tirement of formal dеcisionmakers for statements compensation he received for his lost employer. Such a construction of less jury statutes would thwart leave time. A reasonable could infer those discrimination very purposes by allowing of the acts this communication created some themselves from lia- employers to insulate among doubt the Board as to Harris’ de- bility by hiding behind the blind simply sire to retire. non-biаsed, approvals, albeit of formal de- All this is sufficient to undermine the cisionmakers.”). position In her as Su- Board’s contention that Harris’ Meara, help Dr. with from perintendent, he to re- was eliminated because wanted Imig, budget process. oversaw the annual Although tire. Harris’ statements about The record shows that she interacted with clear, crystal than he plans were less regarding proposеd members managed question has to raise a triable budget, including the decision eliminate legitimately fact as to whether the Board final position. Although approval believed he intended to retire. Given the of the decision came with a formal possibility jury that a could find the Board, Dr. recom-
vote of the
Meara
be,
best,
proffered
Board’s
reason to
at
day-to-day
As the
mended this aсtion.
or, worst, dishonest,
jury
false
at
the same
supervisor
system,
of the school
her rec-
jus-
could likewise conclude that the stated
ommendations on the needs of the district
pretext
tification is
for discrimination. See
carry
and the allocation of funds would
Reeves,
‘formal decisionmaker’ to presented Harris has also sufficient upon employеr employ- an for an adverse action, casting evidence doubt on the Board’s sec long plaintiff pres- ment so as the proffered ents ond rationale for the termi sufficient evidence to establish that ‘principally facing the subordinate was the one nation: that the school district was for, responsible’ or the ‘actual decision- budget longer a crisis and could no afford actiоn.”). behind, First, maker’ keep position. to Harris has pressured shown that he was not to return event, any In the district court was for the 2009-2010 Months before wrong say complete- to that the Board was approve up the March 2009 vote to ly equivocation unaware of Harris’ about coming budget, Imig suggested to Harris plans. ap- his While the Board does not might that he not have a in the position pear privy to have been to the communica- coming year that he consider Harris, Meara, and should tions between Dr. Then, when Harris Imig, retiring. it did receive an e-mail from Dr. submitted form, failed Meara which she discussed Harris’ hesi- notice of intent to return law, of the legitimacy it to matter and return sign the document justification. proffered Board’s second course of business. in the normal Studivant over, noting in Instead, form Imig held the evidenсe note that none of Harris’ We discus- to have further margin plan its inexorably to the conclusion that leads Imig’s retiring. Harris about sions with possessed for it anyone working Board or leave, Harris to as persuade attempts Harris. A discriminatory animus toward a Har- pass along even failure to well as his easily as conclude that the jury just could return, subject are intent to ris’ written Har- genuinely was mistaken about Bоard jury might A interpretations. multiple Imig prodded and that plans, that the and conclude at this evidence look going retire because the predetermined had what Harris regardless to be eliminated in- of his perhaps because go, needed to However, task to it is not our wanted. of the only conceived age, creased make deter- weigh the evidence and such failing to con- rationale after budgetary summary burden at minations. Harris’ him to retire. vince production, per- one of not judgment “is suasion; credibility as- it can involve no Moreover, of the importance note the we Reeves, 530 at sessment.” U.S. positions the custodial fact that each of omitted). (internal quotations S.Ct. 2097 individuals occupied by eliminated were inferences in Harris’ drawing all When it is true seventy.4 While age оver the favor, sufficient evidence provided he has several to eliminate younger decision proffered reasons to contradict the Board’s individuals occupied by older positions From this evidence of for the termination. is somewhat department same within the contradiction, jury might ultimately con- a Working alongside suspicious. was the actu- clude that discrimination these indi- department, the maintenance termination. al reason for the than the comparators are viduals better also positions whose were employees other B. conclude from jury might A eliminated. to Harris’ claim of now turn age as the that the Board used these facts It is under Title VII. race discrimination posi- determining which deciding factor that Harris has estab again uncontested depart- particular cut from this tions to facie case: the elements of lished ment. class, he protected a member of a Harris is *7 he suf job, his satisfactorily performed acknowledged that Lastly, Dr. Meara action, and adverse financial fered an the the Board never considered by an individual outside replaced indepen- he was termination justification for the Holland, 487 See protected clаss. that Harris the belief purported dent of its However, failed Harris has at 213. that she F.3d testified to retire. She wanted inference that race contributed raise an the be sure whether could not his to eliminate the Board’s decision anyway. J.A. eliminated would have been ad of evidence piece The sole Indeed, position. primary stated that the she 103. is Dr. respect to race by Harris with that shе duced reason for the termination holding that Harris was comment J.A. 428. We Meara’s wanted to retire. felt Harris knowledge its hostage through accepting, as a the against persuaded are thus retired, designation which he having two as Although indicates that the the record retired, validity obviously the contests. J.A. 525-26. individuals other Harris dispute given that it also lists list is in However, equates of his friends in the the completing paperwork NAACP. at- And, this statement was made after Dr. tendant to retirement. Mr. Harris (never had to write out of Meara decided completed paperwork processed by a fear budget the and refers to responsible agents of the defendant course) he intend- would use the threat of a lawsuit to collect ordinary indicating pay Thus, the contested back amount. It does ed to return. the Boаrd’s decision (inchoate anyway not in address Dr. Meara’s or the to advance in this case his in eliminating po- Board’s motives contingent) non-pre- desire to retire aas hand, On the other questions sition. textual for its signif- reason adverse action by regarding raised the Board’s any icantly probity undermines the non- proffered reasons for the termination deci- pretextual justification for the Board’s аd- e., sion, i. discrepancy over Harris’ verse action. plans pressure placed to retire and the on Furthermore, the majority opinion as so, him to do can both reasonably be said persuasively explains, a reasonable fact be to his with long related tenure reasonably finder could find that neither age. district and advanced Harris has superintendent nor the Board had produced nothing showing a similar con- begun even the budgeting process aimed nection between the Board’s decision and reducing personnel at costs the time status as an African-American. posi- the decision to eliminate Mr. Harris’s Therefore, because Harris has failed to Ante, crystallized. tion had at 349. Un- genuine question create a as to whether circumstances, therefore, der the as we termination, played
race a role hold, the ADEA claim in this case is not court’s district dismissal of his Title VII at summary judgment resolvable claim must stand. stage.
III. reasons,
For the foregoing we vacate the entry
district court’s of summary judg-
ment favor of the Board as to Harris’ However,
age discrimination!claim. we af-
firm the remainder of the district court’s
judgment. We remand to the district
court for further consideration consistent opinion.
with this PART,
AFFIRMED IN VACATEDIN
PART, AND REMANDED.
DAVIS, Judge, concurring: Circuit join Judge
I in full Gregory’s opinion for *8 panel. simply, I note bluntly and more BANK, N.A., WELLS FARGO majority than does the opinion, that Plaintiff-Appellee, School that the Board’s contention elimina- tion of Mr. Harris’s was based on v. a belief that Mr. Harris intended to retire WALLS, transparently silly. is An employee’s Barbranda Defendant- hardly Appellant. statement that “I want to retire”