IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NORMAN UTLEY, et al.,

Plaintiffs,

V.

MCI, INC., MCI WORLDCOM

COMMUNICATIONS, INC., and MCI

NETWORK SERVICES, INC. F/K/A

MCI WORLDCOM NETWORK

SERVICES, INC.,

Defendants.

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§ CIVIL ACTION NO.

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§ 3:05-CV-0046-K

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MEMORANDUM OPINION AND ORDER

Before the Court are the following motions:

(1) Defendants’ (collectively “MCI”) Motion for Summary Judgment on

Claims Brought by Plaintiffs in Global Network Management (Doc. No.

208),

(2) MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs

in Global Network Planning and Engineering (Doc. No. 222),

(3) MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs

in Service Delivery and Carrier Management (Doc. No. 211),

(4) MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs

in Corporate Facilities and Real Estate (Doc. No. 214),

(5) MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs

in U.S. Field Operations—North Texas Operations (Doc. No. 219), 

(6) MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs

in U.S. Field Operations—South/West Texas Operations (Doc. No. 224),
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(7) MCI’s Objections to Plaintiffs’ Summary Judgment Evidence (Doc.

Nos. 276, 278, 279, 283, 284, and 288) which the Court will treat as

motions to strike Plaintiffs’ summary judgment evidence, 

(8) Plaintiffs’ Motion to Strike Defendants’ Objections (Doc. No. 301),

and

(9) Defendants’ Motion to Strike Plaintiffs’ “Corrections” (Doc. No. 305).

By the Court’s Order of January 22, 2008, MCI’s Motion for Summary Judgment on

Claims Brought by Plaintiffs in Service Delivery and Carrier Management (Doc. No.

211) and MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs in U.S.

Field Operations—South/West Texas Operations (Doc. No. 224) were DENIED in

part. The Court GRANTS MCI’s motions for summary judgment on the remaining

claims in these two groups (Doc. Nos. 211 and 224). Additionally, the Court GRANTS

MCI’s motions for summary judgment on all remaining claims in this case (Doc. Nos.

208, 222, 214, and 219). Except where the Court specifies otherwise herein, MCI’s

motions to strike Plaintiffs’ summary judgment evidence are DENIED as moot.

Plaintiffs’ Motion to Strike Defendants’ Objections (Doc. No. 301) is DENIED as

moot. Defendants’ Motion to Strike Plaintiffs’ “Corrections” (Doc. No. 305) is

DENIED as moot. After an extensive review of the summary judgment evidence in this

case, the Court has determined that summary judgment is appropriate, except where

previously denied (See Doc. No. 312), because Plaintiffs are unable to raise a genuine

issue of material fact on any of their claims. 
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I. Factual and Procedural Background

This is an age discrimination case arising out of MCI’s decision to terminate

Norman Utley, Johney Evans, Larry Boyd, Danny Hunter, Jeffrey Vonschmittou, John

Alvarez, Richard Garcia, Gordon Guerra, Walter Gove, Fidel Herrera, Gregory Lyons,

Tommy Merrill, Alfred Preissler, Debra McIver, Veronica Monticolombi, Michael

Schwarz, Deborah Schimek, Aaron Smith, David Tuttle, and David Valdez (collectively

“Plaintiffs”) as part of a reduction in force (“RIF”). As a result of its declining financial

condition, MCI decided to reduce the costs of its operations between 2001 and 2004.

Specifically, MCI reduced its workforce from a high of approximately 75,000 in 2001

to approximately 34,000 at the end of 2004. MCI terminated employees in January,

April, and June of 2004 as part of its RIF (respectively “January 2004 RIF,” “April 2004

RIF,” and “June 2004 RIF”). On January 6, 2005, twenty former MCI employees filed

suit against MCI alleging that MCI terminated them as part of the RIF in violation of

the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. 621 et seq. Nineteen

of the original twenty plaintiffs remain in the case. Plaintiff Evans was dismissed

pursuant to Fed. R. Civ. P. 25(a). (See Doc. No. 309).

This Court, by its order of June 14, 2006, granted MCI’s motion for separate

trials and divided Plaintiffs into six groups based on the six different organizations in

which they worked. The six groups included: (1) Global Network Management, (2)

Global Network Planning and Engineering, (3) Service Delivery and Carrier
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Management, (4) Corporate Facilities and Real Estate, (5) U.S. Field Operations—North

Texas Operations, and (6) U.S. Field Operations—South/West Texas Operations. MCI

filed motions for summary judgment as to each of the six organizations. MCI’s Motion

for Summary Judgment on Claims Brought by Plaintiffs in Service Delivery and Carrier

Management was DENIED as to Plaintiffs Herrera and Lyons’ age discrimination

claims. MCI’s Motion for Summary Judgment on Claims Brought by Plaintiffs in U.S.

Field Operations—South/West Texas Operations was DENIED as to Plaintiff Valdez’s

retaliation claim. This opinion addresses the remainder of the claims based on the

division in which each plaintiff worked.

II. Summary Judgment

Summary judgment is appropriate when the pleadings, affidavits and other

summary judgment evidence show that no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). All evidence and reasonable inferences must

be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc.,

369 U.S. 654, 655 (1962). 

III. Summary Judgment under the ADEA

The ADEA makes it unlawful “for an employer . . . to discharge any individual or

otherwise discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment because of such individual’s age.” 29 U.S.C.
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623(a)(1). When a plaintiff alleges disparate treatment, liability depends on whether

the plaintiff’s age, the protected trait under the ADEA, actually motivated the

employer’s decision. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000),

Rachid v. Jack In The Box, Inc., 376 F.3d 305, 309 (5th Cir. 2004). 

The Court uses a three step process to evaluate ADEA claims at the summary

judgment stage, the modified McDonnell Douglas approach. Rachid, 376 F.3d at 312.

First, the plaintiff must establish a prima facie case of discrimination, which creates a

presumption that the employer engaged in unlawful discrimination. Tex. Dept’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 254 (1981). A plaintiff must show four things to make

out a prima facie case of age discrimination. The plaintiff must show that (1) he was

discharged; (2) he was qualified for the position; (3) he was within the protected class,

meaning that he was at least 40 years of age; and (4) he was i.) replaced by someone

outside the protected class, ii.) replaced by someone younger, or iii.) otherwise

discharged because of his age. Rachid, 376 F.3d at 309.

Second, the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for discharging the employee. St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 506-07 (1993). The defendant’s burden is one of production, not

persuasion, and involves no credibility assessments. West v. Nabors Drilling USA, Inc.,

330 F.3d 379, 385 (5th Cir. 2003). 

Finally, the burden shifts back to the plaintiff to offer sufficient evidence to create
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a genuine issue of material fact either: (1) that the defendant’s reason is not true, but

is instead a pretext for unlawful discrimination, or (2) that the defendant’s reason, while

true, is only one of the reasons for its conduct, and another motivating factor is the

plaintiff’s age. Rachid, 376 F.3d at 312.

Plaintiffs contend that they are each able to establish the elements of a prima

facie case. MCI argues that Plaintiffs are unable to establish a prima facie case. For

purposes of this opinion, the Court assumes, without deciding, that Plaintiffs are able

to establish a prima facie case. Consequently, MCI bears the burden of articulating a

legitimate, nondiscriminatory reason for Plaintiffs’ terminations.

A. Reduction in Force Cases

It is undisputed that Plaintiffs were terminated as part of a RIF. A RIF is a

presumptively legitimate, nondiscriminatory reason for MCI’s decision to terminate

Plaintiffs. Equal Employment Opportunity Comm’n v. Tex. Instruments Inc., 100 F. 3d 1173,

1181 (5th Cir. 1996). A plaintiff can rebut the presumption of legitimacy by showing

either: (1) the purported RIF is merely a sham and nothing more than pretext for age

discrimination, or (2) the RIF, while legitimate on face, is implemented in such a way

that age is impermissibly used as a factor in determining which employees are

terminated. See Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004); Thornbrough v.

Columbia and Greenville R.R. Co., 760 F.2d 633, 645 (5th Cir. 1985), abrogated on other

grounds by St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Where a plaintiff
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challenges the presumptive validity of an RIF, the defendant must articulate a specific

nondiscriminatory reason why the plaintiff in particular was included in the RIF. See

Patrick, 394 F.3d at 317; Thornbrough, 760 F.2d at 645 (noting that the concern in a RIF

case is “why, given the employer’s need to reduce his workforce, he chose to discharge

the older rather than the younger employee”). Finally, the burden shifts to the plaintiff

to show that the reason proffered by the defendant is merely pretext for age

discrimination. Rachid, 376 F.3d at 312.

Plaintiffs in this case attempt to show pretext in a variety of ways. Most Plaintiffs

argue that they were “clearly better qualified” than other younger similarly situated

employees that were not terminated in the RIF, and that MCI’s reasons for terminating

them have changed over time.

1.) “Clearly Better Qualified” Legal Standard

In an RIF age discrimination case, a plaintiff may establish pretext by showing

that he was “clearly better qualified” for his position than a younger similarly situated

employee that was not included in the RIF. See Eberle v. Gonzalez, No. 06-50954, 2007

WL 1455928 (5th Cir. May 18, 2007) (applying “clearly better qualified” standard in

a failure to promote age discrimination case). Applying the “clearly better qualified”

standard in the context of a RIF makes sense. If the plaintiff was “clearly better

qualified” than a younger similarly situated employee, it would be unusual for the

employer to include the plaintiff in the RIF instead of the younger employee, unless the
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employer improperly used age as a basis for the decision. Evidence that a plaintiff was

simply more qualified than the younger employee is not sufficient. Id. at *7. The

plaintiff must establish that he was “clearly better qualified.” Id. This standard requires

more than mere speculation. Id. The bar is set high for this kind of evidence. Celestine

v. Petroleos de Venezuella SA, 266 F.3d 343, 347 (5th Cir. 2001). The disparities in

qualifications must be of “such weight and significance that no reasonable person, in the

exercise of impartial judgment,” could have terminated the plaintiff in the RIF. See Ash

v. Tyson, 546 U.S. 454, 457 (2006) (approving similar language while rejecting the

requirement that the disparity in qualifications be so apparent as virtually to “jump off

the page and slap you in the face”).

2.) Changing Reasons

Many Plaintiffs argue that MCI’s stated reason for their inclusion in the RIF have

changed over time. An employer’s evolving explanation for an employee’s termination

may raise a genuine issue of material fact. Burrell v. Dr. Pepper/Seven Up Bottling Group,

Inc., 482 F.3d 408, 415 (5th Cir. 2007). This analysis, however, is driven by the

particular facts relating to each individual plaintiff, and the Court focuses on the

substance of the proffered reason rather than the manner in which it is stated.

B. Age Related Comments and the “Stray Remarks” Doctrine

Many Plaintiffs attempt to support their age discrimination claim by pointing to

age related comments made by coworkers and supervisors. In order for comments to be
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probative of age discrimination, Plaintiffs must show that the comments were (1) agerelated, (2) proximate in time to the termination, (3) made by an individual with

authority over the termination, or someone in a position to influence the termination

decision, and (4) related to the employment decision. Palasota v. Haggar Clothing Co.,

342 F.3d 569, 576 - 78 (5th Cir. 2003); Brown v. CSC Logic, Inc. 82 F.3d 651, 655 (5th

Cir. 1996). In Reeves v. Sanderson Plumbing Products Inc, the Supreme Court corrected the

Fifth Circuit by holding that a discriminatory remark did not need to be “in the direct

context” of the adverse action. 530 U.S. 133 (2000). Fundamentally, the question is

whether a remark made by a coworker or supervisor could support an inference that the

plaintiff was terminated based on age. Where a plaintiff relies on remarks made by

coworkers, the plaintiff must show that the coworker himself or the coworker’s comment

somehow influenced the decision to terminate the plaintiff. See Palasota, 342 F.3d at

576 - 78.

The Court will assume, without deciding, that Plaintiffs have established a prima

facie case of age discrimination, the burden then shifts to MCI to articulate a legitimate,

nondiscriminatory reason for their terminations. Hicks, 509 U.S. at 506-07.

C. MCI Divisions

MCI filed six motions for summary judgment. The Court addresses each of those

motions in the following order: Global Network Management, Global Network Planning

and Engineering, Service Delivery and Carrier Management, Corporate Facilities and
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Real Estate, U.S. Field Operations—North Texas Operations, and U.S. Field

Operations—South/West Texas Operations.

IV. Global Network Management

David Tuttle and Walter Gove worked for MCI in its Global Network

Management division until they were terminated as part of MCI RIFs. Tuttle and Gove

argue that they were unlawfully terminated based on their age in violation of the ADEA.

In December 2003 Rick Farren, Director of Global Network Management, learned

from his vice-president, Mike Bickel, that MCI was planning a RIF for January 2004.

As part of the RIF, Farren was scheduled to lose 10 positions in his division. Farren

spoke with the managers in his division, including Glenn Rudolph, to plan for the RIF.

Rudolph was the manager of Managed Network Systems where he was in charge of two

teams—IP Support and Transport Support. Farren and Rudolph decided that Rudolph

would lose three positions in the RIF—two from IP Support and one from Transport

Support. Farren asked Rudolph to provide him with rankings of the members of each

of his groups to be used in determining who would be included in the RIF. Based on

Rudolph’s rankings, David Tuttle was included in the RIF.

In addition to Tuttle, Walter Gove was terminated from the Global Network

Management group. In May 2004, Parker Webb was asked to prepare stack rankings

of his reports by his supervisor, Senior Manager Man Ho Park. Webb identified Gove

as the most likely candidate for an RIF. Park and his supervisor, Director Mark Wittry,
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accepted Webb’s ranking. As a result, Gove was terminated as part of the June 2004

RIF.

A. David Tuttle

Prior to joining MCI, David Tuttle worked for Electronic Data Systems (“EDS”),

a customer of MCI services. There he provided support to EDS’s Sync Research FrameRelay Device (“FRAD”) and Racal Datacom networks as part of the Element

Management Group (“EMG”). After joining MCI, Tuttle became an employee in the

EMG until 2001 when the group was disbanded. Tuttle was primarily responsible for

providing technical support to networks operating on a FRADs platform. After the EMG

was disbanded, Tuttle was moved to the Transport Support group working under

Rudolph. The Transport Support group, in addition to providing support for the FRADs

technology, was responsible for providing support to a variety of other technologies.

MCI claims that is was Tuttle’s failure to learn the other technologies that, in part, led

to his inclusion in the January 2004 RIF. Tuttle was 51 years old at the time of his

termination.

1.) MCI’s Nondiscriminatory Reason for Terminating Tuttle

MCI claims that it terminated Tuttle because it no longer had a need for the

technical support Tuttle provided, and because Tuttle had not adequately learned to

provide technical support in other areas. Throughout his time at MCI, Tuttle had been

primarily responsible for providing technical support for a specific technology—FRAD
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devices. MCI provided FRADs technical support through a contract with Tuttle’s former

employer, EDS. In 2003, MCI learned that the only customer for which it provided

FRADs support, Credit Union Information Group (“CUIG”), would not be requiring

those services beyond September 12, 2004. Rudolph says he believed that FRAD

technology was the only technology Tuttle could fully support. Additionally, MCI

claims that Tuttle, unlike the other employees in this group, was not well versed in the

other technologies supported by Transport Support group. Consequently, MCI

concluded that Tuttle was a good candidate for the January 2004 RIF. 

2.) Tuttle’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Tuttle was

included in the RIF, the burden shifts back to Tuttle to show that MCI’s proferred

reason is merely pretext for unlawful age discrimination.

a.) Tuttle’s Evidence that MCI’s Reasons for His

Termination Have Changed

Tuttle argues that MCI’s stated reasons for his termination have changed over

time and that the change is evidence of pretext. In MCI’s response to the EEOC, it

indicated that Rudolph based his ranking on the team’s workload, individual

performance ratings, and the shifts on which individuals worked. In his deposition,

Rudolph confirmed that his decision was based, in part, on employees’ shifts. He

indicated that he attempted to avoid “backfilling”—a process whereby an employee

would have to switch shifts to replace a terminated employee. Tuttle points to the
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testimony of Farren, Rudolph’s supervisor, as inconsistent with Rudolph’s explanation.

Farren said that he did not recall issuing any directive that would have prevented

backfilling.

Tuttle contends that the alleged conflict in Rudolph and Farren’s testimony is

evidence that the stated reason for his termination is merely pretext for unlawful

discrimination. The Court disagrees. During his deposition, Rudolph indicated that he

didn’t recall whether the directive against backfilling came from Farren or from human

resources. There is no inconsistency in Rudolph and Farren’s testimony if the directive

against backfilling was issued by human resources. More importantly, Tuttle has offered

no evidence that Rudolph’s efforts to avoid backfilling worked to the disadvantage of

older workers. Such evidence would allow the trier of fact to conclude that Rudolph’s

stated reason—a policy against backfilling— was merely pretext for age discrimination.

Even if Rudolph operated under the incorrect assumption that he needed to avoid

backfilling, that alone would be insufficient to raise a genuine issue of material fact in

these circumstances. See Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999).

b.) Tuttle’s Evidence that MCI’s Reasons Are Unworthy

of Credence

Next, Tuttle argues that MCI’s proffered reason for his termination is simply

unworthy of credence. MCI indicated that part of the reason Tuttle was terminated was

because his primary area of expertise, FRAD technology, had diminished in importance

because MCI thought it had lost the primary customer using that technology. Tuttle
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points to the fact that MCI continued to support FRAD technology after his termination

as evidence of the falsity of MCI’s proffered reason. However, Tuttle does not dispute

that MCI received a termination letter from its primary customer receiving support for

FRAD technologies shortly before his termination. The relevant inquiry is whether MCI

really believed its need for FRAD technical support would decrease at the time of

Tuttle’s termination. The fact that MCI later continued to provide technical support

for FRADs does not show that MCI did not genuinely believe its need for FRAD

technical support was on the decline. Even though MCI was mistaken about its future

need for FRAD technical support, that, without more, does not demonstrate the falsity

of its proffered reason for Tuttle’s termination.

3.) Tuttle’s Direct Evidence of Age Discrimination

Tuttle contends that he can raise a genuine issue of material fact on his age

discrimination claim even if he is unable to raise a fact issue by showing the falsity of

MCI’s proffered reason. Tuttle contends that Rudolph favored younger workers on the

Transport Support Team. In his briefing to the Court, Tuttle goes so far as to contend

that “Rudolph admits that he favored younger workers on the Transport Support Team.”

Curiously, Tuttle provides no citation to the record in support of this bold assertion.

The Court’s review of Rudolph’s deposition testimony found no such admission. The

only citation to Rudolph’s deposition provided by Tuttle in that section of his briefing

merely indicates that Rudolph encouraged Brian Springer, a younger employee, to begin
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learning IP technology. The fact that Rudolph encouraged an employee younger than

Tuttle to learn IP technology is not evidence of discrimination. Tuttle has not pointed

the Court to any evidence that Rudolph denied Tuttle similar opportunities, or that

Rudolph discriminated against older employees in any other way.

Tuttle has failed to bring forth evidence raising a genuine issue of material fact on

his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

B. Walter Gove

Walter Gove commenced his employment with MCI in 1994. Gove initially

worked in MCI’s technical training department as an instructor and course designer. In

2002, the technical training department was subject to a RIF which resulted in a 50

percent reduction in employees. Although Gove’s position was eliminated, his

employment with MCI was not terminated because he was transferred to the Network

Security Systems group.

When Gove first joined Network Systems Security, he worked on the data

systems security team. In that capacity, Gove was responsible for implementing and

maintaining security on internal MCI data systems. Later, Gove was moved to the

“SAM team” where he reported to Parker Webb. Webb supervised two teams of

technicians—the “SAM team” and the “Sonet team”. SAM is a platform which is used

to secure remote access to network systems. As a member of the SAM team Gove was
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responsible for performing audits and maintenance on the SAM platform. Gove was also

responsible for writing procedures for how to access the SAM platform and interface

with other platforms. Webb claims that he selected Gove for the June 2004 RIF because

he believed Gove possessed the smallest skill set of all of his direct reports and because

Gove had not yet mastered his job responsibilities. Gove was 68 when he was

terminated.

1.) MCI’s Nondiscriminatory Reason for Gove’s Termination

MCI claims that Gove was terminated because he had the narrowest skill set of

all the employees reporting to Webb. Webb testified that once a SAM or Sonet team

member was fully trained in his or her responsibilities, Webb encouraged the employee

to cross-train with the other team to acquire additional skills. With the exception of

Gove, MCI claims all SAM and Sonet team members had done some cross-training

across teams. Webb says that Gove had not done any cross-training because he was still

in the process of training in his primary area. Webb testified that it was the fact that

Gove had the narrowest skill set that led him to believe that Gove could be terminated

with the least overall impact on his group.

2.) Gove’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Gove was

included in the RIF, the burden shifts back to Gove to show that MCI’s proferred reason

is merely pretext for unlawful age discrimination.
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a.) Gove’s Evidence that MCI’s Reasons Have Changed

In its statement to the EEOC MCI said that its decision to terminate Gove was

based on Webb’s rankings. It indicated that Webb considered “performance, position,

and the impact on the business” if his team lost a particular employee. Gove contends

that MCI’s explanation for his termination has now changed. Gove points to the fact

that MCI claims that Webb considered whether individuals were able “to perform tasks

on more than one team,” their “skills sets,” and the “criticality” of the employee’s

expertise. Gove argues that the evolving explanation is evidence that MCI’s proferred

reasons for his termination are pretext for discrimination. The Court finds no

inconsistency or meaningful change in MCI’s proferred reason. An individual’s ability

to perform tasks on multiple teams, skill set, and expertise all directly effect the impact

that employee’s departure would have on the business. MCI’s explanation is now more

detailed, but is not inconsistent. 

Gove has failed to bring forth evidence raising a genuine issue of material fact on

his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

V. Global Network Planning and Engineering

Veronica Monticolombi, Deborah Schimek, Aaron Smith, Gordon Guerra, and

Debra McIver worked for MCI as part of its Global Network Planning and Engineering

Organization until they were terminated in 2004. Monticolombi, Schimek, Smith,
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Guerra, and McIver argue that they were terminated because of their age in violation of

the ADEA. 

At the time of the January 2004 RIF, there were approximately 50 employees in

the Network Project Management group, a group that appears to be a subdivision of

Global Network Planning and Engineering, working under Director John Casper. From

approximately June 2002 to January 2004 , the Network Project Management group lost

approximately 53 employees as a result of RIFs. In order to plan for the January 2004

RIF, Casper asked the Senior Managers —including Renee Flanagan and Richard Hasz—

to provide him a current ranking of the employees reporting to them. As a result of the

ranking done by Flanagan, Monticolombi was terminated. As a result of the ranking

done by Hasz, Schimek was terminated.

A. Veronica Monticolombi

Veronica Monticolombi became a full-time employee at MCI in approximately

October 2000 working as a Project Manager in the Network Project Management group.

At the time of her termination, Monticolombi was assigned to Region I, the Northeast

and East Coast region, working under Team Lead Nicole Bergeron. She was responsible

for outside plant projects, including the construction of fiber optics and installation.

The projects required working with other financial groups who actually performed the

work, as well as functional groups that were responsible for obtaining permits in

anticipation of construction. During the 18 months leading up to her termination,
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Monticolombi was handling new fiber optics bills and installation of new equipment for

new customers. She was also responsible for budgets, scheduling work to be completed,

compiling project statuses, compiling financial statuses, tracking shipment of equipment,

reporting to upper management on project statuses, and conducting weekly calls on all

of the projects for which she was responsible. Monticolombi was 40 years old when she

was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating 

 Monticolombi

MCI claims that the decision to terminate Monticolombi was based on the

rankings Flanagan provided to Casper. MCI contends that in ranking her employees,

Flanagan considered ability to work on a variety of projects, capabilities, interpersonal

skills, written and verbal communication skills, ability to work independently with

limited supervision, research ability, and knowledge of relevant financial rules.

Monticolombi received an overall rating of "Exceeds" in her 2001 performance review,

and an overall rating of "Meets" in her 2002 performance review. According to Flanagan,

Monticolombi’s performance declined between those two reviews. Flanagan testified

that she believed that Monticolombi was not sufficiently focused on her job, and that

the lack of focus was reflected in the quality of her work. Specifically, Flanagan believed

that Monticolombi was not being as thorough in researching projects with respect to

status issues or in resolving the issues quickly. Additionally, Flanagan believed that

Monticolombi was not relaying project status information as accurately as she did in the
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past. 

As an additional reason for Monticolombi’s termination, MCI points to an

incident of alleged insubordination. MCI claims that Nicole Bergeron, Monticolombi's

Team Lead, informed Flanagan of the incident prior to the decision to terminate

Monticolombi. Specifically, Bergeron claims that she relayed a request from Flanagan

for Monticolombi to schedule a meeting to review the scope of a project and get it

outlined. According to Bergeron, Monticolombi responded that she was not going to do

it. 

Ultimately, Flanagan claims she viewed Monticolombi as the lowest performer in

her organization, and ranked her accordingly. MCI also points to the fact that one

project manager who was older than Monticolombi was not terminated and one that was

younger was terminated. 

2.) Monticolombi’s Proof of Pretext

Because MCI has articulated a specific nondiscriminatory reason why

Monticolombi was included in the RIF, the burden shifts back to Monticolombi to show

that MCI’s proffered reason is merely pretext for unlawful age discrimination.

a.) Rehire of Younger workers

Monticolombi argues that the rehire of younger workers is proof that MCI's

proffered reason for her termination is merely pretext for age discrimination.

Specifically, Monticolombi points to the fact Matt Trostel, a younger employee
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included in the January 2004 RIF, was rehired less than seven months after the RIF.

Monticolombi also points out that eight independent contractors were hired in the two

years after the January 2004 RIF as Project Managers. Monticolombi contends that this

evidence demonstrates that MCI's proffered reason for her termination is pretext. The

Court disagrees. Monticolombi has presented no evidence that younger employees were

favored over older employees in the rehire process. Monticolombi appears to argue that

MCI terminated both older and younger employees with the intention of rehiring the

younger ones. The evidence does not support such a bold assertion. The mere fact that

Trostel was rehired does not support an inference that MCI terminated Monticolombi

because of her age.

b.) Monticolombi’s Evidence that MCI’s Reasons for

Her Termination Have Changed

Next Monticolombi argues that MCI's stated reason for her termination has

changed over time, and that the evolving explanation is proof that MCI's proffered

reason is pretext for age discrimination. Monticolombi says that MCI’s statement given

to the EEOC is different than the explanation now given to the Court.

Monticolombi claims that MCI's reasons proffered to the EEOC focused on her

alleged inability to handle the volume of work. She claims that the reason now proffered

by MCI focuses on her alleged lack of focus on her work and general poor performance.

Monticolombi also points to the fact that the reason given to the EEOC focused on

Casper's impression, while the primary reason stated in its briefing to the Court focuses
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on Flanagan's impression. If, as Flanagan claims she believed, Monticolombi was having

difficulty focusing on her work, then it would naturally follow that Monticolombi would

not perform well on the total volume of her work. Furthermore, there is no material

difference in the view of either Casper or Flanagan. Therefore, there is no material

change in MCI’s stated reason.

Monticolombi has failed to bring forth evidence raising a genuine issue of material

fact on her age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

B. Deborah Schimek

Deborah Schimek worked for Telecom USA in 1990 when it was purchased by

MCI. After the purchase, Schimek was offered a position with MCI in Richardson,

Texas in the Network Project Management group. From approximately April 2003 until

her termination in January 2004, Schimek worked under the supervision of Team Lead

Richard Hasz. Schimek was 49 years old when she was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating

Schimek

MCI claims that it terminated Schimek based on Hasz’s ranking of the employees

working under him. In late 2003, Casper asked Hasz to provide numerical rankings for

the employees on his team. Prior to Casper’s request, Hasz had prepared spreadsheets

for each team member that documented each team member’s performance and
- 23 -

accomplishment of responsibilities and objectives in specific areas. Hasz had assigned

each team member a score for each category in the spreadsheet. Hasz had then used the

spreadsheets to arrive at a score that represented each team member’s overall ranking.

Schimek was ranked last out of the five employees on Hasz’s team. When Casper

requested a ranking, Hasz used the scores from the spreadsheets that he had calculated

earlier that year in ranking the employees for Casper. Based on the ranking provided by

Hasz, Casper decided to include Schimek in the January 2004 RIF.

2.) Schimek’s Proof of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Schimek

was included in the RIF, the burden shifts back to Schimek to show that MCI’s

proffered reason is merely pretext for unlawful age discrimination. Schimek, who is

proceeding pro se in this case, did not file a response to the motion for summary

judgment and thus has not met her burden to bring forth evidence sufficient to raise a

genuine issue of material fact on her claims. Consequently, the Court concludes that

summary judgment is appropriate.

C. Aaron Smith

Aaron Smith joined MCI in 1999 as a Network Capacity Manager in the DXC

Network Services group. His title later changed to Circuit Design Engineer, although

his responsibilities remained the same. Robert Mullins supervised Smith from October
- 24 -

2001 through August 2002 and again from January 2003 until his termination in

January 2004. Steve Edwards supervised Smith from August 2002 until January 2003

while Mullins participated in a special project. In late 2003, both Smith and his

supervisor Mullins were reassigned to the newly created Telco Cost Savings Group—a

group created to help implement cost-savings measures for MCI. The Telco Cost

Savings Group was later combined with the Access Management and Optimization

(“AM&O”) group.

In late 2003, Steve Misencik, Director, Data Planning and Capacity Management,

was advised of a potential RIF to occur in January 2004. Misencik’s superior,

Ghavamrezai, provided Misencik with target percentages for the reduction. Misencik

communicated the target percentages to his direct reports, including Roger LaChance,

Senior Manager, Transmission Mangement. LaChance asked his managers, including

Mullins, to prepare rankings for their respective organizations. Mullins ranked Smith

last in his organization, which ultimately led to Smith’s inclusion in the January 2004

RIF. Smith was 49 years old when he was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating Smith

MCI contends that Smith was terminated based on his performance. Specifically,

MCI says that Mullins did not base his ranking on performance on the Telco Cost

Savings Group as he only had two or three months of performance in that group to
- 25 -

evaluate. Instead, Mullins says he used several different sources to measure

performance. For Smith and the other employees who had previously reported to him

in the DXC Network Services group, Mullins says he relied on production numbers from

their work in that group. 

Mullins ranked Smith and Seymore Franklin lowest among the individuals who

had previously reported to him in the DXC Network Services group. Both Smith and

Franklin had production numbers among the lowest in the group, and both had a project

that was overdue in 2003. Mullins claims that he ultimately ranked Smith lower than

Franklin because Franklin was familiar with the architecture of MCI’s hyperlink system

while Smith was not.

The remainder of the employees under Mullins, those that had not previously

reported to him in the DXC Network Services group, had only been supervised by

Mullins for two to three months. Consequently, Mullins attempted to get the input of

the individuals’ former managers to assist him in his ranking. Based on the information

he gathered and his personal knowledge, Mullins worked the individuals into his ranking

around the other employees who had reported to him in DXC Network Services to

produce one final ranked list. 

Mullins did not receive input from the former managers of four of the individuals

he ranked: Laura Chang, Nguyet Nguyen, Mari Garcia, and Noah Sharp Romero. With
- 26 -

respect to Chang, Nguyen, Garcia, and Romero, Mullins claims he based their ranking

on the number of “tickets” they worked in their former job. Mullins says that Garcia

worked a slightly different job, and thus he based her ranking on her ability to perform

the specific objectives of her job.

MCI claims that after LaChance received Mullins rankings, he asked Mullins to

lower the ranking of four individuals. Frederico Mederios and Jeff Lytle had their

rankings lowered based on LaChance’s personal knowledge of their performance.

LaChance claims that based on his experience dealing with Mederios and Lytle, he

believed they should be ranked lower because he had a relatively low opinion of their

performance. Barry Fox and Gary Urie had their rankings lowered to accommodate their

request to be included in the RIF. LaChance consolidated Mullins rankings with the

rankings provided by Bender, the other manager working under him.

Eleven employees working under Mullins were terminated as part of the January

2004 RIF. Four employees volunteered to be included in the RIF and seven

employees—Smith, Lytle, Franklin, Mederios, Nguyet Nguyen, Thieu Nguyen, and

Laura Chang—were involuntarily terminated. Although Smith’s position was eliminated

as part of the January 2004 RIF, he was given an extended termination date. Smith was

given the opportunity to work on a special, short-term project called the “Zero Biller”

project, a cost-saving effort aimed at taking customers off certain platforms that were

outdated. Smith worked on the “Zero Biller” project through July 2, 2004, when his
- 27 -

employment with MCI was terminated.

2.) Smith’s Proof of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Smith was

included in the RIF, the burden shifts back to Smith to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Subjectivity of Rankings

Smith claims that Mullins ranking was entirely subjective and that this is evidence

that MCI’s proffered reason for his ranking is merely pretext for unlawful age

discrimination. Smith points out that Mullins used “different and incongruent

measures” for the employees that he ranked. Smith complains that LaChance

“compounded the flaws in Mullins’ subjective stack ranking by randomly consolidating

Mullins’ stack ranking with the rankings from the rest of the organization.” Smith’s

position is unavailing. Smith’s position is nothing more than a critique of MCI’s

method of determining which employees would be included in the RIF. The ADEA does

not prohibit employers from making subjective decisions about their employees. Nor

does the ADEA mandate that employers always make wise decisions in determining

which employees to terminate. The ADEA merely prohibits an employer from

discriminating against employees over the age of 40 on the basis of their age. Even if

LaChance’s compilations of the rankings was completely “random,” as Smith contends,
- 28 -

that would not violate the ADEA because a random ranking is exactly that—random—

and by definition is not based on age or any other factor. Regardless, the evidence does

not support an inference that the method used by MCI, as imperfect as it may have

been, was actually a veil for age discrimination.

b.) Production Numbers

Smith attempts to show pretext by arguing that his productions numbers—part

of MCI’s stated reason for his low ranking—were higher than the production numbers

for Paul Hwang and Quan Le, two younger employees that were ranked higher than

Smith. Smith contends that there were five “categories of measurable production” and

that overall his numbers were better than Hwang and Le’s numbers. MCI responds by

pointing to Mullins’ deposition testimony where he indicated that he based his ranking

on “the production numbers, as far as how many—what their average is on the M13

recovery, how many DS3s they had recovered.” MCI contends that both Hwang and

Le surpassed Smith in the production numbers utilized by Mullins. Smith is not

entitled to cherry pick some production numbers and claim that his overall production

numbers were better. The mere fact that Smith’s production numbers exceeded some

other employees in some areas is not sufficient to create a fact issue as to pretext. 
- 29 -

c.) Retention of Lower Ranking Younger Workers

Smith argues that MCI retained workers younger than Smith even though they

were lower on Mullins ranking. Specifically, Smith points to Gonzalo Lorenzo, Federico

Medeiros, Thieu Nguyen, and Marc Roberts as younger employees that were retained

even though they were ranked lower than Smith. MCI responds by pointing to the fact

that Medeiros, Nguyen, and Roberts were included in the January 2004 RIF, but

continued their employment with MCI, like Smith, on the “Zero Biller” project. With

respect to Lorenzo, MCI argues that he was transferred to another group and retained

because of his experience in high bandwidth provisions specifically his experience in

designing “DS3 circuits”. With respect to Medeiros, Nguyen, and Roberts it can hardly

be said that they received preferential treatment when they were given the exact same

opportunity to continue their employment at MCI as Smith. With respect to Lorenzo,

it is undisputed that his area of expertise was different than Smith’s area of expertise,

and thus, the fact that he was ultimately retained to perform a different job is not

evidence of pretext.

d.) Overdue Project

Smith claims that MCI’s allegation that he had an overdue project is merely

pretext for age discrimination. Smith contends the real reason the project was overdue

was because it had been neglected before Smith was reassigned to it and because the
- 30 -

field technician group did not follow Smith’s instructions. MCI responds by arguing

that responsibility for the project being late ultimately belonged to Smith. Specifically,

MCI’s points to Mullins’ testimony where he indicated that he believed Smith failed to

put the necessary time and effort in to the project until he realized it was going to be

late. Smith has not brought forth sufficient evidence to allow the trier of fact to

determine that the overdue project was not part of MCI’s decision to terminate him.

Even if MCI erred in blaming Smith for the overdue project, that alone does not show

that MCI relied on improper motives in terminating Smith. Consequently, Smith has

failed to carry his burden of raising a genuine issue of material fact.

3.) Direct Evidence of Age Discrimination

Smith argues that age related comments made in the work place are direct

evidence that he was unlawfully terminated based on his age. Smith’s primary complaint

is of being called “old man” by co-workers. Smith has not provided any evidence linking

the comments of his co-workers to MCI’s decision to terminate him. There is no

evidence that the coworkers had any influence over the decision to terminate Smith or

that the comment influenced the individuals that made the decision to terminate Smith.

Consequently the Court concludes that the comments were stray remarks not probative

of age discrimination by MCI.

Smith also argues that references to his military pension are evidence that he was
- 31 -

unlawfully discriminated against based on his age. Smith claims that at a meeting with

Mullins after his termination, Mullins commented that he “was okay with letting

[Smith] go” in the RIF because Smith had his military retirement pension to fall back

on. Smith argues that a reasonable juror could infer from Mullins’ comment that he

considered Smith’s retirement and Smith’s age in making the decision to terminate

Smith. The Court disagrees. Mullins alleged comment may indicate that Mullins

considered Smith’s alternate sources of income—the military pension—in deciding

whether to include him in the RIF. Regardless of whether it is a wise policy, the ADEA

does not prohibit an employer from considering whether an employee has alternate

sources of income when deciding whether to terminate that employee. Smith has not

brought forth any evidence that Mullins treated similarly situated younger employees

differently. For example, evidence that Mullins ignored alternate sources of income for

younger employees but penalized older workers who had pensions would provide

substantial evidence of age discrimination. No such evidence has been offered in this

case.

Smith has failed to bring forth evidence raising a genuine issue of material fact on

his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.
- 32 -

D. Gordon Guerra

Gordon Guerra began his employment with MCI in July of 1989. At the time of

the January 2004 RIF, Guerra was a Team Lead in the Internal Network Services

(“INS”) group reporting to Charles Merriam. INS was responsible for MCI’s

communication systems, including voice, data, local, and long distance, and its physical

and logical aspects such as circuit provisioning, 800 numbers, and routing. As a Team

Lead in INS Guerra was responsible for working on circuits that provided local telephone

service to MCI customers and managing the completion of orders by engineers reporting

to him. In December 2003, Merriam was informed that MCI was planning for a

potential RIF. At the time, Merriam was advised that he should anticipate submitting

10 to 15 names for termination. Merriam submitted Guerra’s name, and consequently,

Guerra was included in the January 2004 RIF. Guerra was 42 years old when he was

terminated as part of the January 2004 RIF. 

1.) MCI’s Nondiscriminatory Reason for Terminating Guerra

MCI claims that it terminated Guerra because it decided to eliminate one of the

two Team Lead positions under Merriam, and that Cynthia Jefferson, the other Team

Lead, was more essential to the continued operation of the company than Guerra. Prior

to 2001, Merriam had only one Team Lead position in his group. That position was

filled by Guerra. In 2001,Merriam created a second Team Lead position because of the
- 33 -

growing responsibilities of his group. Jefferson, who had previously worked under

Guerra, filled the new position. After 2001, MCI experienced a series of RIFs that

reduced the number of employees working in Merriam’s group. Consequently, the

number of employees working under each Team Lead decreased and Merriam decided

to eliminate one of the two Team Lead positions.

MCI claims that Merriam’s decision to include Guerra in the RIF instead of

Jefferson was not based on age. MCI argues that Jefferson was more essential to the

continued operation of the company because not only was she familiar with her current

job responsibilities, but also Guerra’s job responsibilities, because she had previously

worked directly under him. MCI also contends that Guerra was the more expendable

employee because he “required more direction and follow-up” than Jefferson.

2.) Guerra’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Guerra was

included in the RIF, the burden shifts back to Guerra to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Performance Evaluation

Guerra points to his performance evaluation as evidence of pretext. His

evaluation signed six days before his termination stated:
- 34 -

[Guerra] did not need to be prompted to complete or stay on top of

his day to day tasks or project goals. Escalations for lack of action

from his area of business were unheard of this year, because he

knows what needs to be done and when.

Guerra argues that this positive evaluation shows that MCI’s proffered reason for his

termination is merely pretext for age discrimination. The Court disagrees. It is

undisputed that MCI decided to terminate either Guerra or Jefferson. Given this

context, the fact that Guerra received a positive evaluation is not probative of pretext.

MCI made a business decision to keep Jefferson and eliminate Guerra. Absent evidence

that Guerra was “clearly better qualified” than Jefferson, the Court will not second-guess

that decision.

b.) Guerra’s Evidence that MCI’s Reasons for His

Termination Have Changed

Next, Guerra argues that MCI’s proffered reasons for terminating him have

changed over time. Guerra argues that MCI originally indicated that he was ranked

against all employees working under Merriam, not just Jefferson, the other Team Lead.

In its brief to this Court, MCI indicates that Guerra was ultimately compared to

Jefferson and terminated because Jefferson was the more essential employee.

MCI responds by arguing that the alleged change in its explanation was no change

at all. MCI says that while Merriam did rank Guerra against all of the other employees

working under him, the ultimate decision to terminate Guerra was based on a

comparison between Guerra and Jefferson. A review of Merriam’s deposition testimony
- 35 -

supports MCI’s position. Merriam was asked if he ranked all of the employees reporting

to him and he answered in the affirmative. Merriam said nothing that contradicts the

explanation now proffered by MCI.

c.) Guerra’s Evidence He Was “Clearly Better Qualified”

Next, Guerra argues that he was “clearly better qualified” than Jefferson. Guerra

points to his educational background, knowledge of circuitry, and years of experience as

evidence in support of this proposition. Merriam’s explanation for retaining Jefferson

instead of Guerra, however, focused on Merriam’s belief that Jefferson was better versed

in Guerra’s duties than vice versa. Guerra has not provided legally sufficient evidence

to the contrary. Viewing the summary judgment evidence in the light most favorable to

Guerra, it could support an inference that Guerra was more qualified than Jefferson in

some areas. The evidence fails, however, to support an inference that Guerra was

“clearly better qualified” than Jefferson for the specific position that MCI chose to

retain. Guerra has pointed the Court to no authority for the proposition that the mere

fact that he previously supervised Jefferson is sufficient to demonstrate that he is “clearly

better qualified” than Jefferson.

Guerra has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.
- 36 -

E. Debra McIver

Debra McIver worked for MCI as an Executive Administrative Assistant III in the

Product Program Management group. Prior to 2003, McIver was primarily responsible

for providing administrative support to Shelly Karber, Program Manager. When the

Product Program Management group moved to a new building in 2003, McIver assumed

responsibility for supporting a variety of different individuals. At the time of her

termination, McIver was primarily providing administrative support to Thomas Brand,

Director, and secondarily providing support to Karber and the rest of the group. In that

capacity, McIver performed a variety of responsibilities, including taking care of Brand’s

calendars, scheduling his meetings and travel, taking care of his expense reports, helping

organize invoicing, filing budget reports, and preparing minutes when she was in

meetings. McIver also ordered supplies, kept track of supplies, and answered telephones.

Brand learned of the looming RIF in December 2003 while attending a staff meeting.

After consulting with Karber, Brand decided to include McIver in the January 2004 RIF.

McIver was 52 years old when she was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating McIver

MCI claims that it terminated McIver because Brand and Karber believed she was

the least essential employee in the group. Brand indicated that although he valued her

administrative support, he believed the tasks she performed were the kind that could be
- 37 -

absorbed by other employees. Karber indicated that McIver was a logical choice for

inclusion in the RIF because her other reports were each responsible for large dollar

revenue-producing products or large cost-saving projects that were critical to the group’s

strategic plan.

2.) McIver’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why McIver was

included in the RIF, the burden shifts back to McIver to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

McIver argues that MCI’s proffered reason for her termination is false. In her

brief to the Court, McIver claims that her work “was vital to the organization and

necessary to its substantive goals,” and that her loss “had a critically negative effect on

the organization.” 

McIver has not raised a genuine issue of material fact. As an initial matter,

McIver fails to point the Court to any summary judgment evidence whatsoever. McIver

makes claims that are unsupported by affidavit, deposition transcript or any other

summary judgement evidence. For example, McIver claims that Brand acknowledged

that her loss had a “critically negative effect” on the organization, but cites no evidence

to support this claim. Even if McIver had supported her claims with summary judgment

evidence, her claims would likely fail nonetheless. Regardless of what effect McIver’s
- 38 -

termination had on the organization, there is no evidence that Brand’s proffered reason

for terminating McIver is false.

VI. Corporate Facilities and Real Estate

Alfred Preissler worked for MCI as part of the Corporate Facilities and Real Estate

division. Preissler argues that he was terminated because of his age in violation of the

ADEA.

MCI began planning for the June 2004 RIF in Corporate Facilities and Real Estate

in May 2004. At the time of the June 2004 RIF, Michael Swengros was the Director of

Technical Facilities Planning at MCI. Swengros was responsible for the planning and

management of all technical space, capital expense, budgeting, environmental health and

safety, and management of customer collocation product. Swengros was in charge of

MCI’s Central Office Engineering (“COE”) organization. COE was divided into three

divisions—COE West, COE East, and COE Central. Each region had both a planning

side and an implementation side. When Swengros learned of the potential RIF he

started planning for a reduction in his division. Swengros contacted the Senior

Managers that worked under him, including Al Maggart, the Senior Manager for COE

West. Swengros asked Maggart to evaluate and rank his employees to help determine

who would be included in the June 2004 RIF. According to Maggart’s ranking list, it

was his opinion that Sparlin should be included in the RIF first, then Preissler, then
- 39 -

Parker. Ultimately, Swengros decided to include all of the COE West engineers, except

Maggart, in the RIF. MCI claims that Swengros made this decision before he was ever

made aware of Maggart’s rankings. 

A. Alfred Preissler

Preissler started working for MCI in 1994 as a technical instructor. In

approximately 1999 he was promoted to a position as a central office engineer in MCI’s

COE group. In 2000, Preissler was promoted to Senior Engineer in COE. Preissler

remained in that position until his termination from MCI on June 4, 2004. As an

employee in the COE group, Preissler was responsible for providing space, power, and

planning services for MCI’s central offices, including working with real estate on

determining the feasibility of maintaining or eliminating facilities. Each engineer in the

group was responsible for a different geographic area. At the time of his termination,

Preissler was responsible for California, Nevada, Oregon, Guam, and Hawaii. MCI

acknowledges that Preissler was a very good employee. Maggart was even of the opinion

that Preissler had the ability to learn and adapt quickly. Alfred Preissler was 61 when

he was terminated as part of the June 2004 RIF.

1.) MCI’s Nondiscriminatory Reason for Terminating Preissler

MCI claims that Preissler was terminated because of a decision to eliminate the

COE West group. Swengros says he decided he would focus on the COE group for
- 40 -

employee reduction because it was a planning roup, and, at the time, business was not

in a growth phase. Consequently, Swengros says he determined that there would not

be a great need for future planning. MCI claims that Swengros decided to eliminate the

entire COE West group and reclassify Maggart from a manager to an individual

contributor, whereby Maggart would be responsible for the planning aspects for the

entire one-third of the western United States. Swengros testified that he decided to

eliminate the entire COE West group because that group had a light work load

compared to other planning groups. He testified that he believed that Maggart could

handle the entire region given the knowledge of the area he acquired as a manager.

Swengros says he believed that such a consolidation was not possible in any other

planning group because the other groups had heavier work loads. Consequently, MCI

terminated Preissler, Parker, and Sparlin as part of the RIF.

2.) Preissler’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Preissler

was included in the RIF, the burden shifts back to Preissler to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Preissler’s Evidence He Was “Clearly Better Qualified”

Preissler attempts to demonstrate pretext by arguing that he was “clearly better

qualified” than other employees that were not terminated as part of the RIF. In support
- 41 -

of his assertion, Preissler points to the fact that his tenure was longer than that of several

younger employees that were not terminated in the RIF. Specifically, Preissler argues

that he was “clearly better qualified” than four younger retained employees. While

Preissler admits that none of these employees were in COE West, he argues that they

should have been terminated, and he should have been transferred. Swengros testified

that he believed it would take at least nine to twelve months for an engineer “to get up

to speed” after transferring to a new geographic area. Consequently, Swengros decided

not to reshuffle employees in the RIF. Even assuming that Preissler was more qualified

than the younger employees in different regions, he has failed to raise a genuine issue of

material fact. He has not brought forth any evidence than MCI treated younger

employees favorably by allowing them to be transferred to avoid termination. Neither

has he brought forth any evidence that Preissler targeted CEO West for the RIF because

of the age of the employees. Consequently, Preissler’s argument that he was “clearly

better qualified” fails.

b.) COE West Reconstitutes

Preissler argues that COE West reconstituted without him shortly after the RIF,

and that this shows that MCI’s proffered reason for his termination is pretext for

unlawful age discrimination. Specifically, Preissler points to the fact that several

planning engineers, including the previously terminated Sparlin, were hired in late 2004

and early 2005. MCI responds by arguing that unexpected business growth necessitated
- 42 -

the hiring of additional planning engineers in COE West several months after the RIF.

Preissler admits that he did not apply for a position when MCI began hiring again in late

2004. Instead, he argues that MCI’s decision to hire new planning engineers is evidence

that he was terminated based on his age. It would be rather strange for MCI to

terminate its entire COE West division just to eliminate Preissler because of his age, wait

several months, and then hire other engineers to do the same job — knowing all along

that this was the plan. The Court does not rule out the possibility of such an

extravagant conspiracy to discriminate against an employee. But, in this case, Preissler

has not made a legally sufficient showing to allow a reasonable juror to reach that

conclusion.

c.) Swengros’ Knowledge of Preissler

Preissler argues that Swengros did not know enough about his qualifications and

abilities to decide whether or not he should be included in the RIF. The Court need not

consider whether Preissler is correct in this regard. Even assuming that Preissler is

correct, his position shows nothing more than that Swengros may have made an

uneducated decision. See Deines v. Texas Dept. of Protective and Reg. Servs., 164 F.3d 277,

281 (5th Cir. 1999) (“whether the employer’s decision was the correct one, or the fair

one, or the best one” is not a question for the jury). It is not evidence of pretext as it

does nothing to prove the falsity of MCI’s proffered reason. 
- 43 -

3.) Preissler’s Other Evidence of Age Discrimination

In addition to his attempt to raise a genuine issue of material fact by

demonstrating the pretextual nature of MCI’s proffered reason, Preissler also points to

what he characterizes as “age bias” as evidence of age discrimination. Preissler complains

of being called “old man” by coworkers, of the use of the phrase “over the hill,” and the

occasional use of black balloons at birthday parties. Preissler analogizes these activities

to the use of racist comments around the office, and argues that they demonstrate age

discrimination. 

As an initial matter, the Court is not persuaded by Preissler’s analogy to racist

language. It is certainly true that just as discriminating against an employee on the basis

of race is prohibited by Title VII, discriminating against an employee on the basis of age

is prohibited by the ADEA. There is a material difference, though, between an employer

tolerating racist comments and an employer tolerating age related comments. A

supervisor’s failure to respond to an employee calling a coworker a racist epithet may

very well raise a fact issue as to whether the employer racially discriminated against the

person to whom the racist comment was directed when that person is subsequently

terminated. An employer’s failure to respond when one employee tells a coworker that

he is “over the hill” does not, by itself, support an inference that the employer

discriminated against the employee based on age when the older employee is later

terminated. In the case at bar, there is no evidence that Preissler ever complained that
- 44 -

he was offended by the remarks, or that MCI was otherwise influenced by the remarks

in its decision to terminate Preissler. Consequently, the Court concludes that the

comments are stray remarks not probative of age discrimination.

VII. U.S. Field Operations–-North Texas Operations

Norman Utley, Larry Boyd, Danny Hunter, and Jeffrey Vonschmittou worked

for MCI as part of its U.S. Field Operations—North Texas Operations until they were

terminated in 2004. Utley, Boyd, Hunter, and Vonschmittou argue that they were

terminated because of their age in violation of the ADEA. 

MCI began planning for the April 2004 RIF for the North Texas Operations in

March, 2004. Thomas McCambridge, Vice President, U.S. Field Operations, contacted

U.S. Field Operations Directors Harrison Mayfield and Robert LeCour and informed

them that they would need to submit a list of names for the April 2004 RIF.

Mayfield contacted his Senior Managers, including Joseph Campos to request that

they each provide a list of names of individuals to be included in the April 2004 RIF.

Campos, in turn, contacted his subordinates, including Martin Schmidt to request that

they provide a list of names of individuals to be included in the April 2004 RIF.

Schmidt submitted Larry Boyd’s name to Campos, leading to Boyd’s inclusion in the

April 2004 RIF.

MCI began planning for the June 2004 RIF for the North Texas Operations in late
- 45 -

April and early May, 2004. McCambridge contacted U.S. Field Operations Director

James Dean and informed him that he would need to submit a list of names for the June

2004 RIF. McCambridge informed Dean that he would need to reduce the overall

headcount in his organization by 17 percent, or roughly 67 employees.

Dean contacted his Senior Managers, including James Egert, to request that they

each provide a list of names of individuals to be included in the June 2004 RIF. Egert

in turn, contacted his subordinates, including Eric Phillips, Jeff Duke, and Dwayne Page

to request that they provide a list of names of individuals to be included in the June

2004 RIF. Phillips submitted Utley’s name; Duke submitted Hunter’s name; and Page

submitted Vonschmittou’s name. As a result, Utley, Hunter, and Vonschmittou were

terminated as part of the June 2004 RIF.

A. Norman Utley

Utley began working for ClayDesta Communications, an MCI predecessor, as an

Operations Maintenance Supervisor in April of 1985. By 1995, Utley was working for

MCI in Fort Worth, Texas as a transmission technician under the job title Telecom

Technician IV. Utley was transferred from MCI’s Fort Worth location to its Waco

location in 2002 or 2003 under the job title Telecom Technician III. At the Waco

location, Utley was responsible for maintaining several fiber optics regenerator sites and

performing fiber locates for a specified area. Also working at the Waco MCI location
- 46 -

with Utley was his co-worker Frank Walker. Immediately prior to Utley’s termination,

both he and Walker were managed by Eric Phillips. Phillips, who worked from MCI’s

Grauwyler facility in Irving, Texas, was responsible for managing a team that maintained

a 4000 square mile segment of fiber network which encompassed most of Northeast

Texas. Utley was terminated as part of the June 2004 RIF. He was 61 years old at the

time of his termination.

1.) MCI’s Nondiscriminatory Reason for Terminating Utley

MCI contends that Utley was terminated because he was the only dispensable

employee in Phillips’ group. In March 2004, Phillips provided his supervisor, James

Egert, with a ranking of the employees on his team, per Egert’s directions. Utley was

ranked seventh out of ten employees on Phillips’ team. Egert used these rankings, in

part, to decide who would be terminated as part of the June 2004 RIF. Egert had been

directed by his supervisor, James Dean, to make reductions in “secondary markets,” as

opposed to larger markets, as part of the RIF. Egert had only two secondary markets

within his territory—Longview and Waco—both of which were covered by Phillips’

team. After reviewing overtime reports, manager reports, and consulting Phillips, Egert

says he concluded that it was not possible to eliminate an employee from the Longview

location. As a result, Egert says he decided that one of Phillips’ team members at the

Waco location—Utley or Walker—would be terminated.
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Egert and Phillips say they decided that Utley would be terminated as part of the

June 2004 RIF because they believed Walker was the more important employee in

Waco. Egert and Phillips claim they believedWalker was more essential to MCI because

of his expertise, certifications, and experience with the local customer base. Walker was

ranked fifth out of ten employees on Phillips’ team, two spots above Utley. Moreover,

Egert and Phillips thought Walker was better qualified to perform all of the necessary

job functions of the Waco site, some of which required special security clearances to

work at military sites that Utley did not have. Utley was 61 years old when he was

terminated. Walker was 52 at the time.

2.) Utley’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Utley was

included in the RIF, the burden shifts back to Utley to show that MCI’s proferred reason

is merely pretext for unlawful age discrimination

a.) Utley’s Evidence He Was “Clearly Better Qualified”

Utley argues that he was “clearly better qualified” for the position in Waco than

Walker, and therefore, MCI’s decision to terminate him instead of Walker is evidence

of age discrimination. Utley’s only “evidence” to support his assertion, however, is his

personal opinion that he was better qualified than Walker and younger employees at

other sites. Utley’s mere subjective belief that he was “clearly better qualified” than his
- 48 -

fellow employees is not sufficient to raise a fact issue as to whether he was discriminated

against based on his age. See Eberle v. Gonzalez, No. 06-50954, 2007 WL 1455928 at *7

(5th Cir. May 18, 2007); Nichols v. Loral Vought Sys. Corp., 81 F.3d 38, 41 (5th Cir.

1996). Utley has not provided any comparative evidence that would allow the trier of

fact to conclude that he was “clearly better qualified” than Walker or other employees.

He has not provided evidence of superior work performance reviews, the opinions of

other MCI employees that he was “clearly better qualified,” or objective evidence of

superior qualifications and skills.

b.) Utley’s Evidence that MCI’s Reasons for His

Termination Are Unworthy of Credence

Next, Utley argues that the fact that two younger employees ranked below him,

Steven Hanna and Jeremy Shackelford, were not terminated is evidence of age

discrimination. Utley’s argument is without merit. MCI’s proferred reason for Utley’s

termination is that MCI decided to terminate an employee in the Waco office. Neither

Hanna nor Shackelford worked in the Waco office. Utley’s observation that MCI

terminated him, an employee in the Waco office, rather than either of the two

employees not in the Waco office is entirely consistent with MCI’s position.

Utley attempts to deal with this problem by arguing that MCI’s decision to

terminate an employee from Waco instead of Longview is merely pretext for age

discrimination. In order to raise a genuine issue of material fact, Utley would need to
- 49 -

bring forth evidence demonstrating the falsity of MCI’s claim that it decided to

eliminate an employee from Waco for business reasons. Utley, however, has failed to

bring forth sufficient evidence. He merely points out that the Waco location was

responsible for a “big geographical area” and had two fewer employees than the

Longview location. Without more specific evidence, Utley is unable to create a fact issue

on this point.

Utley goes on to argue that MCI could have transferred him to a Dallas/Fort

Worth location and terminated either Hanna or Shackelford instead. Utley, however,

has provided no evidence that such maneuvering of employees was MCI’s usual practice.

Utley has failed to point to any evidence that MCI went to such extreme measures to

avoid terminating younger employees. The ADEA prohibits discrimination against

certain individuals because of their age, it does not, however, mandate special treatment

for those individuals. MCI’s decision to terminate Utley instead of transferring him and

terminating another employee is a business decision that this Court will not secondguess, and in no way evidences age discrimination. 

c.) Utley’s Evidence that MCI’s Reasons for His

Termination Have Changed

Next, Utley argues that MCI’s proffered reasons for terminating him have

changed over time. Utley states that at the time he was terminated, Phillips told him

that the decision was made “much higher up” and that Phillips could not tell Utley why
- 50 -

he was being terminated. Phillips alleged comments are not inconsistent with MCI’s

proffered reason for Utley’s termination. The decision to terminate Utley was, at least

partially, made by Egert, someone “higher up.” Moreover, the authority for that

termination came from McCambridge, an MCI Vice President, who could fairly be

considered “much higher up” than Phillips. 

B. Larry Boyd

Larry Boyd was hired by MCI in 1998 as an Operations Technician. Initially,

Boyd’s duties included working with installations, configurations, maintenance and a

variety of other operations. Later Boyd became the manager of the Regional Engineering

and Implementations Department. In 2003, Boyd was demoted from his manager

position to a technician position as a Senior Implementation Engineer. The reason for

Boyd’s demotion is unclear from the summary judgment record and is not at issue in this

case. Scott Granger and John Holcomb, MCI managers, supervised Boyd in his

technician position in 2003. Granger and Holcomb left MCI in January 2004, and Boyd

began reporting to Martin Schmidt. Under Schmidt, Boyd’s duties consisted primarily

of performing remote site surveys and remote engineering at Dallas facilities. Boyd was

terminated as part of the April 2004 RIF.
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1.) MCI’s Nondiscriminatory Reason for Terminating Boyd

MCI claims that it terminated Boyd because he was the lowest ranked employee

under Schmidt. Schmidt compiled his rankings based, in part, on information from

Holcomb and Granger. In January 2004, Holcomb spoke with Schmidt to provide him

with information about the employees Schmidt would be supervising. With respect to

Boyd, Holcomb told Schmidt that he was technically competent, but that he would

sometimes get off track, had to be pushed a little bit, and that he lacked initiative.

Holcomb also mentioned that Boyd often exhibited a negative attitude about MCI,

which he believed was the result of Boyd’s demotion from a manager position. In his

written notes to Schmidt, Holcomb indicated that if he had to eliminate a job position

in the Dallas area, Boyd would be his first choice. Boyd was also ranked last by Granger

in his ranking of plant engineers who became direct reports of Schmidt. Based on the

information from Holcomb and Granger, Schmidt concluded that Boyd offered the least

to MCI in terms of workload, skills, and overall value to the organization.

Consequently, Schmidt suggested that Boyd be included in the April 2004 RIF. Boyd

was 49 when he was terminated as part of the April 2004 RIF.

MCI points out that a younger employee that reported to Schmidt, Shawn Farmer

was also terminated as part of the April 2004 RIF. Farmer was 33 at the time of his

termination. Furthermore, MCI points out that of the individuals reporting to Campos

who were retained in the April 2004 RIF, at least four were Boyd’s age or older.
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2.) Boyd’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Boyd was

included in the RIF, the burden shifts to Boyd to show that MCI’s proferred reason is

merely pretext for unlawful age discrimination.

a.) Boyd’s Evidence He Was “Clearly Better Qualified”

Boyd argues that he was “clearly better qualified” for the position in Schmidt’s

group than the other younger technicians that were not terminated, and therefore, MCI’s

decision to terminate him instead of a younger employee is evidence of age

discrimination. Boyd points to Holcomb’s notes to Schmidt where Holcomb evaluated

the abilities of the other employees that worked with Boyd. He points to comments

made by Holcomb that some employees were still learning the process. He also points

to comments made by Holcomb that another employee was “sometimes lazy.” Boyd

counters that, unlike his fellow employees, he “was not still learning” and “had thorough

knowledge of inside plant work and outside plant work.” What Boyd fails to mention,

however, is that Holcomb’s comments about Boyd were just as critical as his comments

about the other employees in Schmidt’s group, if not more so. In fact, one of the

specific criticisms Holcomb levied upon Boyd was that he was “a little lazy.” Nothing

in Holcomb’s notes, which ironically served in part as the basis for the decision to

terminate Boyd, establish that Boyd was “clearly better qualified” for his position than
- 53 -

the other employees working under Schmidt. Furthermore, Boyd’s mere subjective belief

that he was “clearly better qualified” than his fellow employees is not sufficient to raise

a fact issue as to whether he was discriminated against based on his age. Eberle, 2007

WL 1455928 at *7; Nichols, 81 F.3d at 4. Boyd has not provided any comparative

evidence that would allow the trier of fact to conclude that he was “clearly better

qualified” than the other employees in Schmidt’s group. He has not provided evidence

of substantially superior work performance reviews, the opinions of other MCI

employees that he was “clearly better qualified”, or objective evidence of superior

qualifications and skills.

b.) Boyd’s Evidence that MCI’s Reasons for His

Termination Are Unworthy of Credence

Boyd contends that Schmidt did not have adequate knowledge of his employees

skills and capabilities when he ranked them. Boyd points out that Schmidt had

managed the employees for less than two months when he did the ranking that was used

as the basis for Boyd’s termination. Boyd argues that Schmidt’s lack of knowledge

demonstrates age discrimination. The Court disagrees. It is undisputed that Schmidt

relied on information he received from Holcomb and Granger, individuals that did have

substantial knowledge about this particular group of employees. Moreover, even if

Schmidt made his decision with inadequate information, that fact alone does not

demonstrate that MCI’s proffered reason is false.
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Boyd also argues that inconsistencies exist in Schmidt’s deposition testimony that

demonstrate that his purported reason for his ranking is pretext for age discrimination.

Boyd claims that Schmidt initially indicated that he relied solely on Holcomb and

Granger’s assessment of the employees in his group and did not do his own ranking.

Boyd contends that Schmidt later changed his testimony to indicate that he did his own

ranking after a new employee, John Kougl, came on board. A review of Schmidt’s

deposition transcript shows that Boyd’s position lacks merit. During his deposition

Schmidt indicated that he primarily relied on the information provided by Holcomb and

Granger when ranking his employees. Later, when asked how he evaluated Kougl, a new

employee, Schmidt said he had to do his own evaluation of Kougl because Kougl had not

worked under Holcomb and Granger. Schmidt’s testimony is not inconsistent and does

not support Boyd’s claim of age discrimination.

c.) Boyd’s Evidence that MCI’s Reasons for His

Termination Have Changed

Boyd argues that MCI’s reasons for his termination have changed, and that the

change is evidence of pretext. MCI’s position statement to the EEOC did not state a

reason for Boyd’s termination. Boyd argues that the fact that MCI now articulates a

reason for Boyd’s termination, when it did not do so at the time of the EEOC’s review,

shows that MCI discriminated against him on the basis of age. The Court disagrees.

When there is a material change in the stated reason for an employee’s termination, an

inference of discrimination may follow. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc.,
- 55 -

482 F.3d 408, 415 (5th Cir. 2007). Here, however, MCI did not provide a reason for

Boyd’s termination at the time of its position statement to the EEOC. The explanation

that is now provided by MCI cannot possibly be inconsistent with an earlier explanation,

because no such earlier explanation exists. To be sure, there are some circumstances in

which an employer’s inability to state a nondiscriminatory reason for an employee’s

termination will give rise to an inference of discrimination. This case, however, is not

one. Thousands of employees were terminated as part of the RIFs. It is understandable

that MCI would not be able to provide a detailed account, and in some cases would not

be able to provide a reason at all, for the termination of every single employee at the

time of the review by the EEOC, but would be able to find that reason after sufficient

time to conduct its own investigation.

C. Danny Hunter

Danny Hunter began his employment with an MCI predecessor, AEROTEK/MFS,

in approximately 1995. Initially, Hunter worked as a field technician under the

direction of supervisor Gary Grilo. In September of 2003, Hunter was transferred to the

Data Net Center located in Richardson, Texas under the direction of supervisor Jeff

Duke. MCI had originally planned to include Hunter in a September 2003 RIF, but at

Grilo’s suggestion, Hunter was transferred to Duke’s group in lieu of termination. Under

Grilo, Hunter had worked “in the field” on MCI owned equipment. In the Data Net

Center, under Duke, Hunter worked primarily “inside” on customer-owned equipment.
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At the time of his termination in the Data Net Center Hunter was classified as a

Telecom Technician III. Hunter was 52 at the time of his termination.

1.) MCI’s Nondiscriminatory Reason for Terminating Hunter

Prior to the June 2004 RIF, Duke prepared a ranking of the employees working

below him. According to MCI, Duke considered information in Resource Manager, a

computer program that provides information about each employee’s dispatches and

orders, as well as each employee’s on-time performance record. Duke also considered

each employee’s time in service with MCI, time in Duke’s department, skill set, training,

and motivation. Hunter was ranked ninth out of eleven. Duke provided the ranking to

his supervisor, Jim Egert in March of 2004. According to MCI, Egert considered Duke’s

ranking, Hunter’s employee review, and Hunter’s work activities in his new position as

part of his decision to include Hunter in the RIF. Although Hunter was not ranked last

in Duke’s group, MCI claims Egert made the decision to terminate him based on the

technical talents of the employees under Duke and the business needs of MCI.

Specifically, Egert claims that he decided to terminate Hunter instead of Rey Reyna,

who was ranked lower than Hunter, because Reyna was a switch trained technician and

Hunter was not. Egert claims that he decided to terminate Hunter instead of Victor

Peluso, who was also ranked lower than Hunter, because Peluso was on active military

duty at the time of the June 2004 RIF.
- 57 -

MCI also points out that of the three individuals that were terminated from

Duke’s group in connection with the June 2004 RIF, Hunter was the only one that was

over the age of 40. Paul Hart and Steve Aleman, the other two employees in Duke’s

group that were terminated were age 33 and 37 respectively. Additionally, MCI points

to the fact that at least ten individuals under Egert that were not terminated in

connection with the June 2004 RIF were Hunter’s age or older. Specifically, Glynn

Dickinson, the oldest employee under Duke was not terminated. Dickinson was in his

mid-fifties at the time of the RIF.

2.) Hunter’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Hunter was

included in the June 2004 RIF, the burden shifts back to Hunter to show that MCI’s

proferred reason is merely pretext for unlawful age discrimination.

a.) Hunter’s Evidence He Was “Clearly Better Qualified”

Hunter argues that he was “clearly better qualified” for his position in Duke’s

group than the other technicians that were not terminated, and therefore, MCI’s

decision to terminate him instead of a younger employee is evidence of age

discrimination. Specifically, Hunter argues that he was “clearly better qualified” than

Reyna or Glen Sellers, switch technicians in Duke’s group. Hunter contends that while

Reyna and Sellers were only qualified to perform “switch duties,” Hunter had a
- 58 -

substantially broader base of skills. Additionally, Hunter contends that he had more

telecommunications knowledge and experience than Shawn Graham, Greg Jost, Scott

Cook, and Steven Powers, other technicians in Duke’s group. Like Utley and Boyd,

Hunter’s evidence that he was “clearly better qualified” is not sufficient to raise a

genuine issue of material fact. Hunter points to his own affidavit, Duke’s deposition,

and Grilo’s deposition as evidence that he was “clearly better qualified.” In his affidavit,

Duke states his subjective belief that he was more qualified than other employees.

Hunter’s mere subjective belief that he was “clearly better qualified” than his fellow

employees is not sufficient to raise a fact issue as to whether he was discriminated

against based on his age. Eberle, 2007 WL 1455928 at *7; Nichols, 81 F.3d at 41.

Hunter also points to Duke’s deposition where Duke indicated that Hunter was referred

to as a “go to guy” on some technical questions and Grilo’s deposition where Grilo

indicated that Hunter was considered a local network expert. Importantly, however,

Hunter has offered no comparative evidence sufficient to establish that the other

employees under Duke did not have similarly important areas of expertise in their own

right. Merely citing an employee’s strengths without providing comparative evidence is

not sufficient to raise a fact issue.

b.) Hunter’s Evidence that MCI’s Reasons Are Unworthy

of Credence

Hunter argues that the fact that he was terminated instead of two younger

employees ranked below him is evidence of age discrimination. MCI argues that the two
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employees ranked below Hunter were retained for specific reasons. Specifically, MCI

says that Ray Reyna was retained because of his skills as a switch technician and that

Victor Peluso was retained because he was on active duty military leave at the time of

the June 2004 RIF. Hunter argues that MCI’s stated reasons are merely pretext for

unlawful discrimination. Hunter contends that because he was also trained as a switch

technician, the lower ranked Reyna should have been terminated in his stead.

Furthermore, Hunter contends that Peluso was not in fact on active military leave at the

time of the June 2004 RIF, but had returned shortly before the RIF. Hunter contends

that this fact establishes that MCI’s stated reason is merely pretext. 

The Court disagrees with Hunter’s argument. Reyna was one year younger than

Hunter at the time of the June 2004 RIF. The notion that MCI discriminated against

the 52 year old Hunter in favor of the 51 year old Reyna on the basis of age is more than

a stretch. It is irrelevant whether Peluso was on active military duty at the time of the

June 2004 RIF. MCI indicated that Peluso was not terminated, in spite of the fact that

he was the lowest ranked employee, out of a concern that it would be unfair given his

absence from MCI to serve in the military. Whether Peluso returned to MCI shortly

before or shortly after the June 2004 RIF makes no difference. Hunter has not brought

forth any evidence that would create a genuine issue of material fact based on the MCI’s

decision to terminate him instead of the two younger employees ranked below him.

Next, Hunter argues that his inclusion in the June 2004 RIF was pretext for
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unlawful age discrimination because there was in fact no RIF in his area. Hunter points

to the fact that after his termination three new employees joined Duke’s group. Hunter,

however, offers no evidence regarding the job responsibilities of the new employees or

any evidence that would indicate that any of the new employees replaced him.

Consequently, Hunter has not brought forth sufficient evidence to show that there was

no RIF in his area. 

c.) Hunter’s Evidence that MCI’s Reasons for His

Termination Have Changed

Hunter argues that MCI’s reasons for his termination have changed, and that the

change is evidence of pretext. In an October 4, 2004 letter to the EEOC, MCI stated

that Hunter’s termination was “largely influenced by rankings prepared by

management.” In a December 3, 2007 letter to the EEOC MCI indicated that Hunter

was terminated in part because “he had recently transferred into the Richardson center,

and thus, possessed a limited skill set for that environment as reflected in his ranking.”

Hunter argues that MCI’s failure to mention the transfer to the Richardson location in

the first letter makes the two letters inconsistent. The Court disagrees. The second

letter simply added additional detail to the reason articulated in the first letter. The first

letter indicated that Hunter was terminated based on rankings. The second letter simply

adds the additional detail that the transfer to the Richardson location was the likely

reason for his low ranking. The Court finds no inconsistency in the letters, and Hunter

is thus unable to raise a genuine issue of material fact.
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D. Jeffrey VonSchmittou

Jeffrey Vonschmittou began working for MCI in April of 1984 as a technician.

Vonschmittou worked on voice and data circuits, long distance switches, line

conditioning equipment, fiber transmissions equipment, and a variety of other devices.

At the time of the June 2004 RIF, Vonschmittou was listed as a Telecom Technician III

and was reporting to Dwayne Page. At that time, Page’s team was responsible for

maintaining and installing circuits and equipment at approximately twenty-five sites in

downtown Dallas, Texas. Specifically, Vonschmittou’s duties included maintaining and

installing circuits and equipment within the downtown Dallas area. Vonschmittou was

terminated as part of the June 2004 RIF. He was 48 at the time of his termination. 

1.) MCI’s Nondiscriminatory Reason for Terminating 

Vonschmittou

In March 2004, Page submitted a quarterly ranking of his employees to Egert.

Page ranked Vonschmittou last. Based on the ranking, Egert decided to terminate

Vonschmittou as part of the June 2004 RIF. MCI claims that Page ranked the

employees based on performance and ability. Specifically, MCI claims that Page

considered the employees willingness to participate in a cross-training program that Page

implemented when he was relocated to the Dallas location in 1999. As part of this

program, each technician would train the other technicians on their primary area of

expertise. MCI argues that it was primarily Vonschmittou’s reluctance to participate in
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the cross-training program that led to his low ranking and ultimately his termination.

Additionally, MCI contends that Vonschmittou repeatedly struggled with the

administrative tasks associated with his job and that this factored in to his low ranking.

2.) Vonschmittou’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why

Vonschmittou was included in the June 2004 RIF, the burden shifts back to

VonSchmittou to show that MCI’s proferred reason is merely pretext for unlawful age

discrimination.

a.) Vonschmittou’s Evidence He Was “Clearly Better

Qualified”

Vonschmittou argues that he was “clearly better qualified” for his position in

Page’s group than the other technicians that were not terminated, and therefore, MCI’s

decision to terminate him instead of a younger employee is evidence of age

discrimination. Vonschmittou points to the fact that he trained many of his fellow

employees when they were new hires as evidence that he was “clearly better qualified.”

Furthermore, he points to his deposition where he claims that he had more experience

and more education that the younger employees that were not terminated. The mere

fact that Vonschmittou trained some of the employees that were not terminated,

standing alone, is not enough to show that he was “clearly better qualified” than the

younger employees that were not terminated. One of MCI’s stated reasons for
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terminating Vonschmittou was his reluctance to participate in the cross-training program

and his alleged difficulties with administrative tasks. The fact that Vonschmittou

trained some of the employees that were not terminated is not inconsistent in any way

with MCI’s proffered nondiscriminatory reason for his termination. Consequently,

Vonschmittou has not brought forth sufficient evidence establishing that he was “clearly

better qualified.”

b.) Vonschmittou’s Evidence that MCI’s Reasons for his

Termination Are Unworthy of Credence

Next Vonschmittou claims that MCI’s reasons for his termination are simply

unworthy of credence. Specifically, Vonschmittou points to what he claims to be similar

problems that other, younger, employees had that did not result in their termination.

In his brief, Vonschmittou claims “[t]he stated reason for selecting Vonschmittou is false

because none of the technicians reporting to Page were as knowledgeable on the new

technologies as he wanted them to be.” Vonschmittou cites a three page excerpt of

Page’s deposition where Page simply states that “the introduction of new

responsibilities” necessitated that the cross-training program continue over time. Page’s

testimony does not support Vonschmittou’s claim that MCI’s stated reason is pretextual.

The fact that Page continued to use a cross-training program to enhance and diversify

employees’ skills does not demonstrate that MCI’s stated reason for Vonschmittou’s

termination, namely his unwillingness to participate in the cross-training program, is

pretext for unlawful age discrimination. 
- 64 -

c.) MCI’s Reasons for Vonschmittou’s Termination Have

Changed

Next Vonschmittou argues that MCI’s reasons for his termination have changed,

and that this change is proof that its stated reasons are merely pretext for age

discrimination. MCI originally indicated that Page’s ranking of Vonschmittou, which

led to his termination, was based on Vonschmittou wanting to focus solely on certain

assignments in his building, his reluctance to do other work, and the fact that his skills

were not as diverse as the skills of other employees. Vonschmittou points to the reasons

stated by MCI in its brief to this Court as inconsistent. In its brief, MCI states that

“Vonschmittou’s placement in the rankings was primarily due to the fact that

Vonschmittou was not as knowledgeable about all of the downtown sites as the other

technicians, and the fact that Vonschmittou repeatedly struggled with the administrative

tasks.” The Court sees no inconsistency in these two statements, both relate to MCI’s

perception that Vonschmittou was reluctant to engage in cross-training. Consequently,

Vonschmittou has failed to provide any evidence that MCI’s stated reasons for his

termination have changed.

E. Plaintiffs’ Collective Arguments

Plaintiffs make several arguments collectively that they claim show that MCI

conducted its RIF in a discriminatory manner. First, Plaintiffs argue that MCI

transferred younger employees to new divisions so they would not have to be included
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in the RIF. Additionally, Plaintiffs argue that age related jokes and statements show that

MCI conducted its RIF in a discriminatory manner.

1.) Transfer of Younger Employees

Plaintiffs argue that MCI favored younger employees by allowing them to transfer

to new departments rather than be terminated as part of an RIF. Plaintiffs point to

instances where younger employees transferred out of groups that were subsequently

impacted by MCI’s RIF. However, Plaintiffs have adduced no evidence that the

transfers were in any way designed to prevent the younger employees from being

included in the RIF. Moreover, Plaintiffs have provided no evidence that any of the

transferred employees were similarly situated with any of the Plaintiffs.

2.) Age related Jokes and Statements

Plaintiffs points to a comment made by one of MCI’s Senior Managers, James

Egert, during his deposition as proof that the RIF was conducted in a discriminatory

manner. In his deposition, Egert was asked what he would do if he heard age-related

jokes at the office place. After stating that he would meet with the person in his office

if it was the first incident, or a “formal written reprimand” if it was a repeat occurrence,

Egert was asked if he took “jokes or comments about age” seriously. Egert responded:

It really depends on the audience and whether it’s, you know, somebody

telling a joke about age or with a bunch of young people in the room. If

it’s not offending anybody, you know, I wouldn’t – certainly wouldn’t take
- 66 -

any action. If it was offensive to me or to anybody or if I felt it was

offensive to me or anybody else in the room I would probably react.

Plaintiffs contend that Egert’s comment are evidence of discrimination. The Court

disagrees. Egert’s comments do not establish that he, or any other MCI decision maker,

improperly considered age in making the decision to include Plaintiffs in the RIF. 

Plaintiffs go on to argue that many of their co-workers made age-related jokes in

the work place, and that these jokes are evidence of discrimination in the RIF.

Specifically, Hunter complains that a co-worker greeted him by saying “hey, old man”

and Utley complains about a coworker that joked about his bald spot. Plaintiffs equate

these alleged “ageist jokes” with the use of racist language in the work place. Plaintiffs

position fails to show that the RIF was conducted in a discriminatory manner. Plaintiffs

have adduced no evidence that the comments were made by an individual with authority

over the termination or by someone in a position to influence the termination decision.

Moreover, Plaintiffs have offered no evidence that any of the jokes were in any way

related to their inclusion in the RIF. Consequently, the Court finds that none of the

alleged “ageist jokes and statements” are sufficient to raise a genuine issue of material

fact.

VIII. U.S. Field Operations—South/West Texas Operations

John Alvarez, Richard Garcia, Tommy Merrill, Michael Schwarz, and David

Valdez worked for MCI in the U.S. Field Operations — South/West Texas Operations.
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Alvarez, Garcia, Merrill, Schwarz, and Valdez contend that MCI discriminated against

them on the basis of their age in violation of the ADEA. 

In late 2003, planning commenced at MCI for the January 2004 RIF. Jeffrey

Matthis, Director of Field Operations, South Central Territory, was informed by his

supervisor, Thomas McCambridge, that a RIF was coming. Matthis was then given a

target by which to reduce headcount within the organization for the January 2004 RIF.

Matthis relayed the number to his Senior Managers, including Thomas Jones, so that

they could provide him with names of employees to be included in the January 2004

RIF. Jones contacted the Managers working under him, including Mike Kostakis and

Herbert Muniz, to ask that they rank employees in their group to be used in deciding

who would be included in the RIF. Kostakis and Muniz provided Jones with a ranking

of the employees working under them. Based in part on Kostakis’ ranking, Tommy

Merrill was selected for the January 2004 RIF. Based in part on Muniz’s ranking, David

Valdez was also selected for the January 2004 RIF.

In late April and early May of 2004, James Dean, Director, U.S. Field

Operations—Gulf States Territory, was instructed by his direct supervisor, Thomas

McCambridge, Vice-President, to commence planning for an impending RIF.

Specifically, McCambridge had been informed of the June 2004 RIF by his supervisor,

Paul Bates, Senior Vice President, Network Operations, who gave McCambridge a target

percentage by which to reduce headcount in his organization. McCambridge gave his
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direct reports, including Dean, a target by which they could reduce overall headcount

within their organizations. McCambridge told Dean he was to reduce the overall

headcount in his organization by 17 percent, which translated into a targeted reduction

of approximately 67 employees within Dean’s organization. Dean relayed the

information to Jones. Jones consulted with the managers reporting to him, including

Kostakis and Muniz, and prepared a list of individuals to be terminated in the June

2004 RIF. John Alvarez, Richard Garcia, and Michael Schwarz were among those Jones

included in the June 2004 RIF.

 A. Tommy Merrill

Tommy Merrill originally worked for Claydesta, a company that later merged with

MCI, as a Microwave Technician. When Merrill was terminated, he was classified as a

Telecom Technician III — a position he had held for approximately two years. Merrill's

primary job duties included supporting the “FAA network” and transmission network

for a region west of Midland, Texas. Merrill's job duties were focused on performing

preventative maintenance on the FAA and transmission equipment. At the time of his

termination, Merrill was supervised by Kostakis. Kostakis was responsible for managing

employees in the Austin and West Texas area, including Midland, San Angelo, and

Lubbock, Texas. Kostakis had supervised Merrill for approximately three years prior to

Merrill's termination. As of January 2004, one other employee under Kostakis, John

Alvarez, was also based out of Midland, Texas. Tommy Merrill was 62 when he was
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terminated.

1.) MCI’s Nondiscriminatory Reason

MCI claims that Merrill was included in the January 2004 RIF based on his

performance and the business needs of the company. Specifically, MCI says Merrill was

terminated partially based on Kostakis' ranking. Kostakis says he based his rankings on

"his analysis of his employees job responsibilities, and the impact that losing a particular

employee would have on how well his group would be able to accomplish the needs of

the business." Kostakis initially ranked Merrill 12th out of 14 employees. Brian Mesey

and Michael Schwarz were both ranked lower than Merrill on Kostakis' original ranking.

Kostakis claims that after he provided his ranking to Jones, he and Jones had a

discussion about the future needs of the business. In that discussion, Kostakis says the

two discussed the need to have employees located in a centralized area as opposed to

having employees scattered throughout a large geographic area. As a result of that

discussion, Kostakis says he reevaluated his ranking and determined that Merrill was the

least valuable employee in his group, based in part, on the fact that he was located in

Midland. Specifically, Kostakis says he made a decision to terminate one of the two

employees based in Midland because he felt that the work load for the Midland location

could adequately be handled by a single employee. Kostakis claims that he believed

Alvarez was more valuable to the continued operations of the business. MCI claims that

as of the January 2004 RIF, Merrill was considered to be primarily an "outside plant"
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employee, and because Jones had been instructed to focus on eliminating outside plant

employees where possible, Merrill was selected for RIF. Finally, Kostakis says he

considered the fact that MCI had made a business decision "to put less value on

preventative maintenance," and that a very high percentage of the work performed by

Merrill was preventative maintenance.

2.) Merrill’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Merrill was

included in the RIF, the burden shifts back to Merrill to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Merrill’s Evidence He Was “Clearly Better Qualified”

Merrill argues that he was “clearly better qualified” than younger technicians.

Specifically, Merrill points to a positive performance review from 2002 where Kostakis

indicated that Merrill “demonstrates a very technical knowledge of his assigned area”

and “pays attention to changing technology, including new software programs.”

Specifically, Merrill contends that he was “clearly better qualified” than Don Maxey.

Maxey, who was 51 years old at the time of the RIF, worked for MCI from a Lubbock,

Texas location. Merrill testified that he and Maxey worked on projects together about

once every 60 days between 1996 and 2004. Merrill asserts that Maxey had limited

knowledge of the fiber equipment system. The only evidence Merrill provides in support
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of this assertion is his own deposition testimony that Maxey would call and ask

“generalized questions on the system, [showing] that he did not understand it.”

Merrill’s evidence falls far short of supporting an inference that he was “clearly better

qualified” than Maxey. Merrill has not offered the type of comparative evidence that

would allow the trier of fact to conclude that Merrill’s qualifications and abilities were

so superior to Maxey’s that MCI discriminated against Merrill based on his age by

including him in the RIF.

Next, Merrill claims he was “clearly better qualified” than Jim Deaver. Merrill

points to the fact that he trained Deaver with fiber repair. In support of this claim,

Merrill again cites to his deposition where he asserts that Deaver lacked experience and

knowledge. Such self-serving statements, without more, are not sufficient to raise an

inference that he was “clearly better qualified” than Deaver.

b.) Retaining Lower Ranked Employee

Merrill contends that the fact that MCI retained an employee that was ranked

lower than he was constitutes evidence of pretext. It is undisputed that Kostakis ranked

Brian Mesey, a younger employee, below Merrill, but terminated Merrill nonetheless.

Merrill contends that this fact, standing alone, is evidence of pretext. MCI responds by

arguing that “other factors,” in addition to his ranking, contributed to his termination.

Specifically, MCI claims the decision to terminate one of the two engineers in the
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Midland office, the fact that Merrill was primarily an “outside plant” employee, and the

fact that MCI made a business decision to cut back on “preventative maintenance” all

played in to the decision to include Merrill in the RIF. Merrill has provided no evidence

that any of these particular reasons for his inclusion in the RIF are pretext.

Consequently, the mere fact that a lower ranked employee was not included in the RIF

is insufficient to raise a genuine issue of material fact on Merrill’s age claim.

c.) MCI’s Reasons Have Changed

Merrill argues that MCI’s stated reasons for his termination have changed over

time. Merrill claims that when he was terminated on January 26, 2004 Kostakis said he

could not tell Merrill why he was being terminated. In its statement to the EEOC, MCI

claimed that Jones was instructed to focus on eliminating outside plant positions, and

that Jones selected Merrill for the RIF partially because Merrill worked in an outside

plant position. Jones direct superior, Matthis, testified that he didn’t recall giving Jones

such an instruction. Merrill argues that Matthis’ deposition testimony is evidence that

Jones’ stated reason is pretext for unlawful discrimination. The Court disagrees. MCI

has consistently asserted that part of the reason Merrill was terminated was because it

was eliminating some outside plant employees. Neither Matthis nor anyone else at MCI

has taken a different position. The fact that Matthis does not have a specific

recollection of telling Jones to focus on eliminating outside plant employees does not

controvert Jones statement that he was operating under the assumption that MCI had
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such a policy. Even if Jones was mistaken in his belief, that does not support an

inference that MCI unlawfully discriminated against Merrill based on his age. See Bryant

v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005).

3.) Merrill’s Other Evidence of Age Discrimination

Merrill also contends that “age-related jokes and statements” establish a fact

question as to whether he was terminated based on his age. Merrill says that he slipped

off a ladder on one occasion while Kostakis was on a conference call with his direct

reports. John Alvarez, another plaintiff in this case, testified that he heard a coworker

comment to the effect that Merrill’s mind was slipping too. Merrill argues that this

evidence supports an inference that he was discriminated based on age. The Court

disagrees. There is no evidence that Kostakis heard the comment, let alone that he was

influenced by it when he made his decision to terminate Merrill. Moreover, it isn’t

entirely clear that the comment is even age-related. 

Merrill has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

B. David Valdez

David Valdez began his employment with MCI on October 31, 1994 as a

Telecom Technician I. Valdez worked at a location in San Antonio, Texas known as
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“San Antonio Junction” under the supervision of Herbert Muniz, Manager. In 2004,

Muniz’s group was responsible for managing the maintenance of MCI’s electronic

systems, such as switches and Digital Cross-Connects (“DXCs”), and the installation

operations of circuits relating to those systems. As of January 2004, Valdez worked

primarily as a Maintenance Technician in Muniz’s group. In preparation for the January

2004 RIF, Muniz prepared a ranking of his employees, which he forwarded to his Senior

Manager at the time, Mel Kimbrell. In approximately August 2003, Kimbrell left MCI,

and Muniz began to report to Jones. At some point prior to the January 2004 RIF,

Muniz forwarded to Jones the rankings he had previously prepared for Kimbrell. Valdez

was ranked last of Muniz’s active employees as of December 2003. Valdez was included

in the January 2004 RIF. He was 44 when he was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating Valdez

MCI claims that it terminated Valdez based on Muniz’s nondiscriminatory

ranking of the employees working under him. MCI claims that Muniz ranked Valdez

low “because, although [he] was experienced on maintenance of the switches, he was not

experienced working with the circuits on the switches.” Furthermore, Muniz says that

he believed that Valdez did maintenance work well, but believed that his knowledge was

lacking on other systems. Jones testified that he determined that he could reduce

headcount in San Antonio based on the city’s current work load and the type of work

the facilities were performing. In particular, Jones says he felt he could eliminate an
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employee from Muniz’s group because that group focused on the maintenance of

switches and installation of circuits interfaced with the switches — a task that was “more

and more . . . being performed remotely at centralized locations.” Consequently, Valdez

was terminated as part of the January 2004 RIF.

2.) Valdez’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Valdez was

included in the RIF, the burden shifts back to Valdez to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Valdez’s Evidence that He Was “Clearly Better

Qualified”

Valdez argues that he was “clearly better qualified” than younger technicians that

were not included in the January 2004 RIF. In support of his assertion Valdez cites a

positive 2003 performance review by Muniz and notes that he trained a younger

employee that was not included in the RIF. Valdez’s only comparative evidence is his

own deposition testimony where he says that the younger employee’s experience was

limited. The fact that Valdez had a positive performance review does nothing to

demonstrate Valdez’s qualifications relative to the younger employee. Additionally,

Valdez’s self-serving deposition testimony is not the type of comparative evidence

needed to allow the trier of fact to conclude that Valdez was “clearly better qualified”

than a younger similarly situated employee that was retained.
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b.) Valdez’s Evidence that MCI’s Reasons for His

Termination Have Changed

Valdez claims that MCI’s stated reasons for his termination have changed over

time, and that the change is evidence of pretext. Specifically, Valdez claims that Muniz

told him that he had nothing to do with his termination. Muniz denies making the

statement. Assuming the statement was made, as the Court must at the summary

judgment stage of the case, it does not create a fact issue as to pretext. While it is

certainly true that an employer’s evolving explanation for an employee’s termination will

sometimes be sufficient to allow a fact finder to conclude that the employer’s proffered

reasons are merely pretext for age discrimination, it doesn’t necessarily follow that a

decision-maker’s denial of responsibility for a decision will always support the same

inference. A supervisor tasked with the unenviable duty of informing an employee of his

discharge has every incentive to minimize, or deny altogether, his role in the decision to

terminate the employee to avoid a potentially volatile situation. There may very well

be some cases in which a supervisor’s denial of his role in the decision to terminate the

Plaintiff creates a genuine issue of material fact, but this is not such a case. There is

simply no evidence to support the conclusion that Muniz made the alleged statement

for the purpose of concealing age discrimination.

Valdez has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.
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C. John Alvarez

John Alvarez began his employment with MCI in 1984 when he was hired as a

Switch Manager. At the time of his termination from MCI in 2004, Alvarez reported

to Kostakis in Midland, Texas. His job title was Telecom Technician III. Alvarez’s

responsibilities included, among other things, network maintenance in a region around

Midland, taking care of the fiber optics system installations, maintaining emergency

equipment and alarms, installing and testing customer premise equipment, among other

things.

Prior to the January 2004 RIF, Alvarez worked with Merrill from the Midland

location. After Merrill was terminated as part of the January 2004 RIF, Alvarez assumed

the majority of Merrill’s previous job duties and responsibilities. Alvarez was selected

for inclusion in the June 2004 RIF. He was 57 when he was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating Alvarez

MCI claims that Alvarez was terminated based on the business needs of the

company. Specifically, MCI says Alvarez was terminated based in part on Kostakis’

ranking and in part because of geographical reasons. Alvarez was ranked 8th out of 13

employees working under Kostakis. MCI says that Alvarez was terminated, in spite of

the fact that he ranked higher than several employees that weren’t terminated, because

the company decided to eliminate positions in West Texas. Kostakis says that he met
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with Jones prior to the June 2004 RIF. At that meeting, they agreed that growth was

likely to occur in the Austin, Texas metropolitan area and unlikely to occur in West

Texas. Consequently, Kostakis says he decided to eliminate only one person from the

Austin location, Michael Schwarz, and to eliminate both Alvarez and Brian Mesey from

West Texas locations.

MCI says that it terminated Alvarez in particular from West Texas based on his

ranking and his location in Midland. The only employee in West Texas ranked lower

than Alvarez was Jim Deaver, age 46. Deaver was located in San Angelo, Texas and his

responsibilities there were similar to Alvarez’s responsibilities in Midland. Deaver was

the only technician in San Angelo. MCI claims that it was faced with the choice of

leaving either Midland or San Angelo without a technician on site. MCI claims that it

decided to eliminate the Midland position for three reasons: 1.) San Angelo was more

centrally located within Kostakis’s region, therefore, response times for Deaver coming

from San Angelo would be faster than if San Angelo was left unattended and Alvarez had

to travel from Midland to respond to calls, 2.) the facilities that Alvarez maintained on

his Midland route were not company owned, and 3.) MCI had a large “FAA presence”

in San Angelo, and in terms of the number of FAA circuits, Deaver had considerably

more FAA network to maintain than Alvarez.
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2.) Alvarez’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Alvarez was

included in the RIF, the burden shifts back to Alvarez to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Alvarez’s Evidence that He Was “Clearly Better

Qualified” and that MCI’s Reasons Are Unworthy of

Credence

Alvarez contends that he was “clearly better qualified” than Deaver, a younger

technician that was not terminated as part of the June 2004 RIF. Additionally, Alvarez

contends that MCI’s stated reasons are unworthy of credence because Deaver was

ranked lower than Alvarez, yet Deaver was not terminated in the June 2004 RIF.

Specifically, Alvarez points to his 2003 performance review where Kostakis said “John

[Alvarez] has done a great job of providing technical support to all in the area, especially

Jim [Deaver] who has very little knowledge of the transmission network.” Additionally,

Alvarez says that he trained Deaver in Midland from 2002 to 2003 at Kostakis’ behest.

MCI responds by arguing, among other things, that it is inappropriate to compare

Alvarez to Deaver because they worked at different locations at the time of the June

2004 RIF. MCI says that it decided to retain Deaver instead of Alvarez, in large part,

because it decided it was important to have a technician operating out of San Angelo.

The Court agrees with MCI’s position. Alvarez has brought forth no evidence
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challenging the fact that MCI decided to keep an employee in the San Angelo location.

Alvarez does say that MCI could have terminated Deaver and then transferred Alvarez

to San Angelo. As previously mentioned, it was not MCI’s obligation to shuffle

employees in order to benefit older workers.

b.) Alvarez’s Evidence that MCI’s Reasons for His

Termination Have Changed

Next, Alvarez argues that MCI’s stated reasons for his termination have changed,

and that the change is evidence of pretext. Specifically, Alvarez claims that Kostakis told

him that he had nothing to do with the decision to terminate Alvarez and that it “came

from above.” Subsequently, MCI claimed that Alvarez’s termination was influenced by

Kostakis’ rankings. Construing the evidence in the light most favorable to Alvarez and

assuming Kostakis told Alvarez that he had nothing to do with the decision to include

Alvarez in the RIF and that it “came from above,” the Court concludes that this is

insufficient to raise a genuine issue of material fact as to pretext. First, as MCI argues,

the decision to terminate Alvarez certainly did come from above in the sense that the

decision to conduct an RIF was made by upper management, and that it was Jones that

made the ultimate decision to terminate Alvarez. Second, with respect to the comment

that Kostakis had nothing to do with the decision, this alleged discrepancy is not

sufficient to raise a fact issue. As previously discussed, the mere fact that a supervisor

does not tell a terminated employee the extent of his role in the termination is

insufficient by itself to establish pretext.
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Alvarez has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

D. Richard Garcia

Richard Garcia began his employment with MCI in February 1982 as a Switch

Technician in Dallas, Texas. In 1983, Garcia transferred from Dallas to Forth Worth

to run a new switch that had been installed there. In June 1984, Garcia transferred to

San Antonio, Texas where he began working as Telecom Technician III. Garcia

remained in this position until the time of his termination in June 2004. Garcia, under

the supervision of Muniz, was primarily responsible for working on switches, specifically

long distance switch. Garcia’s responsibilities also included working on “DXCs” and

maintenance tickets. In preparation for the June 2004 RIF Muniz prepared a ranking

of the employees working under him. Garcia was ranked 9th out of 11 employees.

Based on Muniz’s ranking, Jones decided to include Garcia in the June 2004 RIF.

Garcia was 46 when he was terminated.

1.) MCI’s Nondiscriminatory Reason for Terminating Garcia

MCI claims that Jones decided he could reduce headcount by two in Muniz’s

group, and that Garcia was selected as one of the two based on Muniz’s ranking. Muniz

says he analyzed his employees strengths and weaknesses to determine who was most
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valuable to the organization and ranked them accordingly. Muniz says that Garcia was

knowledgeable about the domestic long distance switch, but his knowledge and skills

were otherwise limited. Additionally, Muniz says that Garcia could not resolve problems

as quickly as the other employees ranked above him and that he was slower working

maintenance and circuitry on the switch equipment. Furthermore, MCI says that Jones

also considered the fact that Garcia was primarily a switch technician—a position that

MCI claims had a diminishing workload.

2.) Garcia’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Garcia was

included in the RIF, the burden shifts back to Garcia to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.

a.) Garcia’s Evidence He Was “Clearly Better Qualified”

Garcia argues that he was “clearly better qualified” than Joe Garcia and Jorge Lira,

younger technicians that were not terminated in the June 2004 RIF. Specifically, Garcia

points to the fact that he trained Joe Garcia in 2003 as evidence in support of his

position. Garcia also says that co-workers Anel Rios and Ruben Guerrerro agree that he

is more qualified than Joe Garcia. In support of this assertion, Garcia points only to his

own deposition testimony. MCI argues that his deposition testimony relating to Rios

and Guerrerro’s statements are hearsay. The Court agrees. Garcia failed to point the
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Court to any admissible summary judgment evidence, i.e. an affidavit from Rios or

Guerrerro, to corroborate his testimony. Consequently, the only evidence that Garcia

has to support his assertion that he is “clearly better qualified” than Joe Garcia is the

mere fact that he trained him. Standing alone, this is not enough to allow the trier of

fact to conclude that MCI’s proffered reason is merely pretext for age discrimination.

With respect to Lira, the only summary judgment evidence offered by Garcia is his own

belief that he was better qualified. As previously discussed in this opinion, such evidence

is insufficient to raise a genuine issue of material fact.

b.) Garcia’s Evidence that MCI’s Reasons Are Unworthy

of Credence

Garcia argues that MCI’s proffered reason for his termination is simply unworthy

of credence. In support of his assertion Garcia points to a positive performance review

from 2003 and claims that his “skills and abilities were not just limited to switch work.”

The Court finds this position unpersuasive. MCI has never taken the position that

Garcia was a bad employee or a poor performer overall. In the context of an RIF, good

employees are sometimes terminated as a business necessity. Making general references

to his skills and abilities without establishing that he was “clearly better qualified” than

a younger employee that was not terminated is insufficient to raise a genuine issue of

material fact.
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c.) Garcia’s Evidence that MCI’s Reasons for His

Termination Have Changed

Garcia claims that MCI’s reasons for his termination have changed and that the

change is evidence of pretext. Specifically, Garcia claims that at the time of his

termination Muniz told him that the decision came from above him in the company,

and that he had no control over the decision. Later, MCI claimed that Garcia was

terminated in large part because of Muniz’s ranking of Garcia. As previously discussed

in this opinion, this type of alleged discrepancy is not sufficient to allow the trier of fact

to conclude that MCI’s proffered reason is merely pretext for age discrimination.

Garcia also claims that the position taken by MCI in its letter to the EEOC is

inconsistent with the position that it now takes before the Court. In its letter to the

EEOC, MCI said “all switch responsibilities were centralized” and Garcia’s work was

“done remotely.” Garcia claims, and MCI concedes, that the switch responsibilities were

never actually centralized. Garcia argues that this supports an inference that MCI’s

proffered reason is pretext for age discrimination. MCI responds by pointing to Jones’

affidavit where he says he believed the overall job responsibilities for switch technicians

were decreasing. MCI contends that even if the centralization never actually took place,

Jones’ belief is nonetheless a nondiscriminatory reason for terminating Garcia. The

Court agrees. While it is certainly true that a material change in the reason for an

employee’s termination may support an inference of pretext, a slight inconsistency will

not always support the same inference. If there is any inconsistency at all, it is
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insufficient to allow a trier of fact to conclude that MCI’s proffered reason is false.

Garcia has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

E. Michael Schwarz

Michael Schwarz began his employment with an MCI predecessor in October

1986. In 1991, Schwarz became an MCI manager in Austin, Texas. Schwarz managed

the MCI “DEX-400 tandem switch site” in Austin for approximately one year. Schwarz

continued to work at this switch site as a Telecom Technician IV from 1992 until MCI

decommissioned the site in approximately 1998. Subsequently, Schwarz started doing

local switch work for MCI. He was in charge of maintaining the switch, the transport

gear, completing inventory of all “spares,” maintaining the air conditioning system, and

a variety of other activities in the switch room. In 1998, MCI reclassified job titles and

Schwarz became a Telecom Technician III. From 1998 through 2004 Schwarz

continued with similar job titles and duties until his termination in the June 2004 RIF.

Schwarz was 46 when he was terminated.

1.) MCI’s Nondiscriminatory Reason

MCI claims that it terminated Schwarz based on his performance and the business

needs of the company. In December 2003, Kostakis provided a ranking list to his Senior
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Manager, Jones, in anticipation of the January 2004 RIF. In Kostakis’ December 2003

rankings, Kostakis ranked Schwarz as the least valuable employee of the 14 working

under him. MCI says that Kostakis was spared from the January 2004 RIF because of

the decision to eliminate Tommy Merrill from the Midland location. In preparation for

the June 2004 RIF, Kostakis again ranked the employees working under him. This time

Schwarz was ranked 12th out of 13 employees. Brian Mesey, the only employee ranked

lower than Schwarz, was also terminated in the June 2004 RIF. Kostakis says he based

his ranking on the business needs of the organization and the geographical location of

employees. Specifically, he says he believed he could eliminate one position from the

Austin location in the June 2004 RIF. Kostakis says Schwarz was the best candidate for

the RIF out of the employees in the Austin location. Kostakis says be believed Schwarz

lacked initiative to learn all aspects of his group’s operation, thus making him less

valuable than other employees that had branched out to learn different skills.

2.) Schwarz’s Evidence of Pretext

Because MCI has articulated a specific nondiscriminatory reason why Schwarz

was included in the RIF, the burden shifts back to Schwarz to show that MCI’s proffered

reason is merely pretext for unlawful age discrimination.
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a.) Schwarz’s Evidence He Was “Clearly Better Qualified”

Schwarz claims that he was “clearly better qualified” than younger employees that

were not terminated as part of the June 2004 RIF. Specifically, Schwarz says he was

“clearly better qualified” than Randy Rodriguez, age 28, and David Nunez, age 41.

Schwarz points to his deposition testimony as the only evidence in support of his

assertion. Schwarz testified that he believed Rodriguez’s experience was limited, that

he had to help Rodriguez on a some tasks, and that he frequently got calls from Nunez

asking for help with his job. As already discussed in this opinion, Schwarz’s personal

belief that he was “clearly better qualified” than younger employees is not sufficient to

raise a genuine issue of material fact.

b.) MCI’s Reasons Have Changed

Schwarz argues that MCI’s reasons for his termination have changed over time.

Schwarz says that he asked Kostakis who made the decision to terminate him and

Kostakis told him that he did not know. Subsequently, Schwarz says he learned that

not only did Kostakis know who made the decision to terminate him, but that Kostakis

himself played a major role in the decision. This alleged inconsistency, however, is

insufficient to raise a genuine issue of material fact. First, Schwarz has brought forth no

evidence that Kostakis in fact knew who the ultimate decision-maker was. Additionally,

even assuming Kostakis did know the extent of the decision-making process, such a
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minor inconsistency in this context could not allow the trier of fact to determine that

MCI discriminated against Schwarz on the basis of his age.

3.) Direct Evidence of Age Discrimination

Schwarz claims that Rodriguez and Nunez, his coworkers, made “a lot of

statements” about him balding. Schwarz claims that “When they stood outside and [he]

would take his hat off, they would put their hands up and pretend to block the so-called

glare from [his] head.” He also claims they made a comment about “grandpa having to

go to bed early at night.” Schwarz fails, however, to provide any evidence connecting

these comments to the ultimate decision to terminate him. There is no evidence that

either Rodriguez or Nunez had any influence over Kostakis’ ranking or Jones decision

to include Schwarz in the RIF.

Schwarz also claims that on one particular occasion when Schwarz and his

coworkers were offloading equipment from a truck into a warehouse, Kostakis made an

ageist remark. After moving the equipment, Schwarz was sweating and looked flush.

Kostakis allegedly told him, “you better sit down . . . you are not looking so good . . .

you know, the older you get, the less physical you can get.” Schwarz claims that these

statements are evidence that Kostakis unlawfully discriminated against him based on

age. The Court disagrees. Kostakis’ alleged comment, which is isolated at best, does not

show that he had animosity toward Schwarz based on his age, nor does it show that
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Schwarz’s age was factored into the ranking.

Schwarz has failed to bring forth evidence raising a genuine issue of material fact

on his age discrimination claim. Consequently, the Court concludes that summary

judgment is appropriate.

IX. Common Arguments Advanced by All Plaintiffs in All Groups

In their briefing to the Court, Plaintiffs argue that MCI selectively enforced its

“stack rankings,” and that this is evidence of age discrimination. Additionally, Plaintiffs,

argue that MCI has not sufficiently articulated its nondiscriminatory reasons as to each

Plaintiff. Both of these arguments are applicable to all Plaintiffs in all groups. After

consideration, the Court concludes that Plaintiffs are still incapable of raising a fact issue

on their age discrimination claims.

A. Selective Enforcement of Stack Rankings

Plaintiffs argue that MCI selectively enforced its stack rankings, and that this is

evidence of age discrimination. It is true that MCI did not always terminate the lowest

ranked employee. However, that fact alone does not support an inference of age

discrimination. MCI has articulated specific reasons why it deviated from its rankings

when it chose to do so. Plaintiffs have failed to make a showing that MCI’s deviation

from its rankings was pretext for age discrimination.
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B. Specificity of Nondiscriminatory Reason

Plaintiffs argue that a recent Fifth Circuit case, Alvarado v. Texas Rangers et al.

2007 WL 2028917 (5th Cir. July 16, 2007), supports their argument that MCI has

failed to adequately specify the nondiscriminatory reason for their termination. In that

case, the plaintiff’s employer ranked plaintiff based on a subjectively scored interview.

The employer in Alvarado did not specify why the plaintiff received a low score for the

interview. The Fifth Circuit held that the employer had failed to carry its burden of

providing a sufficiently detailed nondiscriminatory reason for the plaintiff’s termination

and reversed the trial court’s summary judgment. The facts of the case at bar, however,

are distinguishable. While it is true that MCI could not have simply cited the RIF or

its rankings as its nondiscriminatory reason for terminating Plaintiffs, MCI has gone

much farther in this case. With respect to each plaintiff, MCI has provided a sufficiently

detailed explanation as to why each individual plaintiff received the ranking that he or

she did, and ultimately how that factored into the termination. 

X. Summary Judgment on Retaliation Claims

The ADEA makes it unlawful for an employer to “discriminate against . . .

applicants for employment . . . because [any] such individual . . . has made a charge

under this chapter.” 29 U.S.C. § 623(d). In order to establish a prima facie case of

retaliation a plaintiff must show that: (1) he engaged in protected activity, (2) a
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materially adverse action occurred, and (3) a causal link existed between the protected

activity and the adverse action. Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002); Peace

v. Harvey, 207 Fed. Appx. 366, 368 (5th Cir. 2006); Burlington Northern & Sante Fe Ry.

Co. v. White, 126 S.Ct. 2405 (2006)(holding that the materially adverse action need not

be related to the plaintiffs employment). After a plaintiff establishes a prima facie case

of retaliation, the burden then shifts to the defendant to demonstrate a legitimate,

nonretaliatory purpose for the action. Gee, 289 F.3d at 345. If the defendant articulates

a nonretaliatory reason, the plaintiff must then bring forth evidence that the employer’s

stated reasons is merely pretext for unlawful retaliation. Id. 

A. Factual Background

Plaintiffs Alvarez, Boyd, Garcia, Gove, Guerra, Lyons, McIver, Montocolmbi,

Preissler, Schimek, Schwarz, Smith, Utley, Valdez, and Vonschmittou (hereinafter

“Plaintiffs”) each claim that MCI retaliated against them for filing complaints with the

EEOC. By its order of January 22, 2008 this Court denied MCI’s Motion for Summary

Judgment on Valdez’s retaliation claim. After considering the summary judgment

evidence, the Court concludes that summary judgment is appropriate on the remainder

of the retaliation claims in this case.

Following their terminations from MCI, Plaintiffs sent letters to Norma Jaminet

in the MCI Human Resources office asking to be considered for any open positions.
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Jaminet replied to the letters and told Plaintiffs that their correspondence was not the

proper way to apply for positions with MCI. Jaminet identified some appropriate

vehicles to seek employment with the company: MCI’s online Career Center, other

internet job sites, and classified advertisements in newspapers. Plaintiffs claim that

MCI’s refusal to consider them for rehire is evidence that MCI retaliated against them

based on the fact that they filed a complaint against MCI with the EEOC.

In their briefing to the Court, Plaintiffs’ primarily address their retaliation claims

as a group, with two exceptions — Gove’s retaliation claim and Preissler’s retaliation

claim. Consequently, the Court will follow the same format. First, the Court will

address the general arguments advanced by all Plaintiffs relating to their retaliation

claims. Second, the Court will address the specific arguments that relate to Gove’s

retaliation claim and Preissler’s retaliation claim.

The Court assumes, without deciding, that Plaintiffs are each able to establish a

prima facie case of retaliation. Consequently, the Court will initially look to MCI’s

nonretaliatory reason for not rehiring Plaintiffs.

B. MCI’s Nonretaliatory Reason for not Rehiring 

MCI claims that it was its policy and practice at the time of Plaintiffs requests to

disregard any unsolicited resumes sent to its human resources department. Specifically,

MCI claims the policy was in place because at that time MCI was receiving a large
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number of resumes not tied to specific job openings, and without a recruiting function

in the human resources department, they could not process all of the requests.

Furthermore, due to the financial condition of the company in 2004, MCI was reducing

staff, and job openings with the company were limited. Having articulated a

nonretaliatory reason for not rehiring Plaintiffs, the burden shifts to Plaintiffs to bring

forth evidence that MCI’s stated reason is merely pretext for unlawful retaliation.

C. Plaintiffs’ Evidence of Pretext

Plaintiffs make a variety of arguments in an attempt to raise a genuine issue of

material fact on their retaliation claims. Plaintiffs arguments largely fall into one of

three categories. First, Plaintiffs argue that the fact that MCI’s policy of discarding

unsolicited resumes was not in writing is evidence that it is merely pretext for unlawful

retaliation. Second, Plaintiffs contend that the fact that many MCI supervisors were

unaware of the policy is evidence of pretext. Finally, Plaintiffs argue that MCI acted

inconsistently with the purported policy and that its actions are evidence of pretext.

1.) MCI’s Policy Was not in Writing

Plaintiffs point to the fact that MCI’s policy against considering unsolicited

resumes was not in writing as evidence of retaliation. Specifically, Plaintiffs point out

that the policy is not included in MCI’s policy handbook. The Court does not find this

argument persuasive. The mere fact that a corporation has not reduced a policy or
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practice to writing, without more, is not evidence that the policy or practice is pretext

for unlawful retaliation. To hold otherwise would require employers to endlessly detail

in writing every custom, practice, and procedure at the company. The ADEA does not

mandate such a burdensome practice.

2.) Supervisors Were Unaware of the Policy

Next, Plaintiffs point to deposition testimony where certain MCI supervisors

indicate that they were unaware of the human resources policy on unsolicited resumes.

Again, the Court does not find that this demonstrates unlawful retaliation. The fact that

some supervisors were unaware of the internal policies of the MCI Human Resources

Department does nothing to establish that those policies were in fact pretext for

unlawful retaliation. In a company with as many supervisors throughout the

organization as MCI, it is not surprising that some supervisors were unaware of the

policy.

3.) Inconsistent Actions

Plaintiffs argue that MCI took a variety of actions inconsistent with its policy

against considering unsolicited resumes, and that these actions are evidence of pretext.

First, Plaintiffs claim that “MCI actually sought out resume materials that were not only

not linked to a particular job opening, but that were provided by individuals who had

not even contacted MCI about employment.” To support their assertion, Plaintiffs point
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to deposition testimony of an MCI corporate representative, Tracey Fitzgerald, where

she discusses certain online resources, such as Monster.com, that were available for MCI

recruiters looking to fill specific positions. The testimony is consistent with MCI’s

proffered nonretaliatory reason for not considering Plaintiffs’ resumes. In fact, Plaintiffs

citation to the Fitzgerald’s deposition testimony only bolsters MCI’s position. By

utilizing the online resources that matched job-seekers with specific open positions, MCI

could avoid the burden of processing unsolicited resumes that were not linked to any

specific job opening. 

The Court finds that Plaintiffs are unable to carry their burden to raise a genuine

issue of material fact on the question of pretext. Plaintiffs have not brought forth any

evidence that would allow a reasonable juror to conclude that MCI’s proffered reason

is merely pretext for unlawful retaliation. Specifically, as MCI notes, Plaintiffs have

failed to point to any other person that submitted a similar request for employment to

MCI that was treated differently than Plaintiffs. Accordingly, the Court finds that

summary judgment is appropriate on Plaintiffs’ retaliation claims.

As previously mentioned, Plaintiffs Gove and Preissler submitted specific

summary judgment evidence in support of their retaliation claims beyond the general

evidence submitted by all of the retaliation plaintiffs. Consequently, the Court considers

whether that evidence is sufficient to raise a genuine issue of material fact on either of

their retaliation claims.
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D. Walter Gove’s Retaliation Claim

Gove claims he was retaliated against by MCI when it refused to rehire him for

a specific position for which he applied. On July 27, 2005 MCI posted an open position

for a Senior Technician I in Richardson, Texas. In response to the post, Gove emailed

his former manager, Abbie Edwards, on August 4, 2005. Subsequently, Edwards

responded by telling Gove that there was no longer an open position. Gove claims that

MCI’s failure to hire him for the position was retaliation for filing an EEOC complaint.

1.) MCI’s Nonretaliatory Reason for not Rehiring Gove

MCI claims that “the position [Gove applied for] was no longer available when

Gove sent his email.” Consequently, MCI says it could not possibly have retaliated

against Gove. MCI says that Margaret Andersen had already been selected to fill the

position identified by Gove in his email.

2.) Gove’s Evidence of Pretext

Because MCI has specified a nonretaliatory reason for not rehiring Gove, the

burden shifts back to Gove to raise a genuine issue of material fact on his retaliation

claim.
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a.) Gove’s Evidence that MCI’s Reason Is False

Gove attempts to establish that MCI’s stated reason for its failure to rehire him

is simply false. Gove claims the position for which he applied was open when Edwards

told him it had been filled. Gove argues that the position could not possibly have been

filled by August 4, 2005, the date on which he contacted Edwards. In support of his

assertion, Gove points to a document referenced only as an “EPSR.” While it is unclear

what “EPSR” stands for, the document appears to be a form used by MCI to record the

promotion of Margaret Anderson to the Senior Trainer position. Under the heading

“Approval Routing List” the document says “Abbie Edwards Initiated on August 04,

2005.” Gove claims that the EPSR is “the first step in the hiring process.” It follows,

Gove contends, that the position could not have been filled at the time he contacted

Edwards. MCI responds by arguing that the EPSR is not the first step in the hiring

process, but rather that the August 4, 2005 date on the form reflects the fact that “the

proposal to hire [Anderson] was approved on August 4.” Notably, neither Gove nor

MCI point to any summary judgment evidence to clarify the purpose and meaning of the

EPSR. Regardless, Gove is unable to provide sufficient evidence showing the falsity of

Edward’s alleged response. 

Gove is unable to demonstrate the falsity of Edwards response because he has

provided no evidence that Edwards sent her response before the position was actually

filled. In his affidavit, Gove states “I contacted Abbie Edwards by e-mail on August 4,
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2005 and attached my resume to the e-mail. Ms. Edwards responded by e-mail and

stated that the position there was no position open [sic].” Edwards testified that she

does not recall responding to Gove’s email. Gove has brought forth no evidence

regarding the timing of Edward’s allegedly false response. It is undisputed that the

position was eventually filled by Andersen. If the position was filled prior to Andersen

responding to Gove’s email, then Gove’s claim that Andersen indicated that the position

was not open would be entirely consistent with MCI’s proffered reason. Because Gove

will carry the burden of proof on his claim at trial, it is his burden to bring forth

summary judgment evidence sufficient to allow the trier of fact to find in his favor. By

failing to bring forth any evidence with respect to the timing of the alleged response,

Gove has failed to raise a fact issue.

b.) MCI’s Reasons Have Changed

Gove also argues that MCI’s stated reason for its failure to rehire him has changed

over time. Gove contends that Edwards original proffered reason — that there was no

open position — differs from the reasons MCI states to the Court — a failure to timely

apply and a failure to formally apply. MCI responds by arguing that the explanations

are not inconsistent. The Court agrees. When MCI says that Gove did not “timely

apply,” that is simply another way of saying the position was already filled by the time

Gove applied. Additionally, MCI’s position that Gove should have formally submitted

an application instead of simply sending an email is an alternative, but not inconsistent,
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reason for not hiring Gove. Consequently, Gove is unable to raise a fact issue on his

retaliation claim and summary judgment is appropriate.

D. Alfred Preissler Retaliation Claim

Alfred Preissler claims he was retaliated against when Al Maggart, his supervisor,

failed to consider him for an open position and hired Sparlin, a former coworker,

instead. After Pressler sent a letter to MCI asking to be considered for any open

position, MCI decided to add an engineer position in Preissler’s former group — COE

West. Maggart testified that he did not consider Preissler for the position because he

thought Preissler was ineligible because Maggart believed that Preissler had refused to

sign a severance agreement when he was terminated. Preissler claims the refusal to rehire

him was unlawful retaliation.

1.) MCI’s Nonretaliatory Reason for not Rehiring Preissler

MCI claims that Preissler was not considered for the open position because of

Maggart’s mistaken belief that he was ineligible. It is undisputed that Maggart’s belief

was incorrect in at least two ways. First, Preissler had in fact signed the severance

agreement contrary to Maggart’s belief. Second, MCI says that Preissler would have

been eligible for rehire, even if he had not signed the severance agreement. Notably, the

severance agreement provided “this Agreement does not include a release of claims under

the Age Discrimination in Employment Act.”
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2.) Preissler’s Evidence of Pretext

Preissler argues that the fact that MCI admits that Maggart’s belief was incorrect

is sufficient to raise a fact issue. MCI responds by arguing that even though Maggart’s

belief was incorrect, that alone does not raise a fact issue. The Court agrees. It is well

settled that an employer’s belief in terminating an employee need not be correct, so long

as it is reasonable, not arbitrary, and not likely a pretext for unlawful discrimination.

Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999). Preissler has brought forth

no evidence that would suggest that Maggart’s mistaken belief is actually pretext for

unlawful retaliation.

XI. Conclusion

It is undisputed that MCI made a business decision to conduct a series of RIFs

throughout 2004. Given the fact that a company is often forced to terminate good

employees in the context of an RIF, it is more difficult for a plaintiff to show the

existence of a genuine issue of material fact by pointing to their qualifications, experience

and abilities. See EEOC v. Texas Instruments, Inc., 100 F.3d 1173, 1181 (5th Cir. 1996).

Many Plaintiffs in this case would not have been terminated but for the fact that MCI

decided that an RIF was a business necessity. 

Based on the summary judgment evidence presented in this case, the Court

concludes that Plaintiffs have failed to raise a genuine issue of material fact on any of
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their age discrimination claims, except where MCI’s motion for summary judgment has

already been denied. Similarly, Plaintiffs asserting retaliation claims are unable to raise

a genuine issue of material fact, except where MCI’s motion for summary judgment has

already been denied. Consequently, the Court concludes that summary judgment is

appropriate on the remainder of claims in this case. The Court will issue a final

judgment disposing of all claims and all parties after a trial on the merits of Plaintiffs

claims that survived MCI’s motion for summary judgment. (See Doc. No. 312).

SO ORDERED. 

Signed March 24 , 2008.

th

_________________________________

ED KINKEADE 

 UNITED STATES DISTRICT JUDGE