United States District Court, E.D. Pennsylvania
E.K. PRATTER United States District Judge
May 2017 and May 2018, 56-year-old Paul Power was demoted
twice after 27 years of employment with Lockheed Martin
Corporation. Lockheed Martin claims that Mr. Power's
first demotion was due to its decision to reorganize the
business unit, and Mr. Power's second demotion was due to
his poor performance. Mr. Power says these explanations are
pretext for age discrimination. He sued Lockheed Martin under
the Age Discrimination in Employment Act of 1967
("ADEA") and the Pennsylvania Human Relations Act
("PHRA") for age discrimination, retaliation, and
hostile work environment. Lockheed Martin moves for summary
reasons that follow, the Court denies Lockheed Martin's
motion for summary judgment on Mr. Power's age
discrimination claim and grants the motion on Mr. Power's
retaliation and hostile work environment claims.
Lockheed Martin Corporation
Martin is a global security and aerospace company. Within
Lockheed Martin, LM Space is a business unit that works on
advanced technologies such as space flight systems,
satellites, and missile defense systems. Within LM Space,
Property Management is a department that manages, organizes,
and accounts for all tools, equipment, and materials used by
the business unit. Property Management undergoes regulatory
audits by federal auditors and carries out organizational
Mr. Power's Employment with Lockheed Martin
Power began working at Lockheed Martin's predecessor
company in 1990 and became a manager in 1995. From 1995
through 2011, he worked in different business sectors and was
promoted on several occasions.
2011, Mr. Power became a Property Analyst Senior Manager
within Information Systems & Global Solutions, Inc.
("IS&GS"), another Lockheed Martin business
area. Property Analyst Senior Manager was a Level 6
leadership position. Mr. Power's responsibilities
included asset management, operational management, strategic
planning, and management of approximately 25 employees.
Mr. Power Joins LM Space
January 2016, Lockheed Martin announced that the majority of
IS&GS would divest from Lockheed Martin. In June 2016,
former IS&GS property employees, including Mr. Power,
were brought into the Property Management group within LM
Power carried his Level 6 leadership position over to LM
Space. As a Level 6 Property Analyst Senior Manager at LM
Space, Mr. Power managed specific areas within Property
Management, including capital assets. He reported directly to
Byron Ravenscraft, the Manufacturing Engineering Senior
Manager who supervised the entire Property Management group.
LM Space Reorganizes the Property Management Group and Mr.
Power is Demoted
February 2017, after the IS&GS divestiture finalized, LM
Space decided to realign its reporting structure and rescope
positions within Property Management. Lockheed Martin claims
that this realignment was designed to increase efficiency and
ensure that positions within Property Management were
properly scoped given their responsibilities. Mr. Power, who
was 56 years old at the time of the realignment, claims that
the real purpose was to place younger individuals in
that same time, Mr. Power saw a job posting for what he
claims was his position: a Property Analyst Senior Manager at
LM Space. Lockheed Martin disputes this, claiming that the
posting was for the Property Management supervisory position
held by Mr. Ravenscraft, not Mr. Power.
7, 2017, Lockheed Martin hired 38-year-old Nicholas Downing
for the open position. Lockheed Martin claims that Mr.
Downing, who previously worked for the federal agency
responsible for conducting audits of LM Space, was the most
qualified candidate. Mr. Power, however, asserts that Kathy
Walker, a Director in LM Space and Mr. Power's
second-level supervisor, told him that Lockheed Martin
selected Mr. Downing because he was "young and full of
energy" and because Lockheed Martin wanted a "fresh
approach." Power Decl. ¶ 29.
Ms. Walker informed Mr. Power that he (age 56), Mr.
Ravenscraft (age 51), and another Level 6 manager who
previously reported to Mr. Ravenscraft, Juanita Meyers (age
60), would have their positions "de-leveled" and be
required to report to Mr. Downing. On May 22, 2017, Mr. Power
was given the choice between being demoted to a Level 5
Position or having his employment terminated. Mr. Power
accepted the demotion. Mr. Ravenscraft and Ms. Meyers also
accepted demotions in lieu of termination. Two younger,
lower-level managers in LM Space were not demoted and
remained in their respective positions after the realignment:
Greg Sallee (age 46) remained a Level 5 Property Analyst
Manager, and Michael Pukansky (age 48) remained a Level 4
Property Analyst Associate Manager.
Mr. Power's annual salary remained the same and he
continued to manage the same employees, Mr. Power asserts
that moving down to a Level 5 position greatly affected his
potential earnings and future salary.
Mr. Power and Mr. Downing Clash
Power and Mr. Downing immediately began to clash. According
to Mr. Downing, Mr. Power was underperforming in all areas
and was not meeting Lockheed Martin's expectations.
Specifically, Mr. Downing asserted that Mr. Power:
• Failed to take ownership of a corrective action plan
resulting from a government audit at a site for which Mr.
Power was responsible;
• Failed to provide additional information relating to
the previous year's annual inventory;
• Failed to provide additional supporting documentation
to validate requests to retire assets that were no longer
useful or needed;
• Failed to effectively lead the property operations at
• Failed to attend a meeting with outside auditors in
July 2016 without any explanation to Mr. Downing, despite
capital assets being Mr. Power's responsibility; and
• Failed to prepare maps, plans, and other processes to
improve the business processes after the IS&GS
Power disputes Mr. Downing's characterization of his work
and, for some of these performance issues, disputes the
underlying facts. He also claims that Mr. Downing unjustly
criticized his performance and treated him in a more hostile
and dismissive manner than he treated younger employees.
August 2017, Mr. Downing gave Mr. Power the lowest
performance review in Mr. Power's career. On August 2,
2017, Mr. Downing and Laura Novak, a human resources
representative, met with Mr. Power to discuss his performance
review. Mr. Downing believed that Mr. Power failed to embrace
the need for improvement.
Mr. Downing and Other Lockheed Martin Employees Discuss
Placing Mr. Power on a Performance Improvement Plan
of Mr. Power's responsibilities, he was required to
sample assets to test Lockheed Martin's internal property
impairment controls. Mr. Downing claims that Mr. Power was
supposed to sample approximately five percent of all assets.
August 10, 2017, Mr. Downing learned that Mr. Power had been
sampling less than one percent of all assets when conducting
his impairment testing. In Mr. Downing's view, such a
small sample was inappropriate because it was too small and
would not instill confidence in the external auditors or
internal stakeholders. After discovering this fact, Mr. Downing
emailed Ms. Novak and Ms. Walker to request that Mr. Power be
placed on a formal performance improvement plan
("PIP"). Ms. Novak agreed and sent Mr. Downing
sample PIP documents.
Mr. Power's First Age Discrimination Complaint
next day, on August 11, 2017, Mr. Power filed a complaint
with the Federal Equal Employment Opportunity Commission
("EEOC"). Mr. Power informed Ms. Walker, Ms. Novak,
and Mr. Downing of his filing that same day. On August 14,
2017, Mr. Power also emailed a complaint of hostile work
environment to Lockheed Martin's Ethics Analyst Senior
Staff. Among other things, Mr. Power complained that Mr.
Downing had said that he wanted a "younger
perspective" and "younger employee's
inputs." Pl.'s Opp'n to Def's Mot. for Summ.
J. Ex. 17 (Doc. No. 17-4).
Mr. Power is Officially Placed on a Performance Improvement
August 16, 2017, six days after Mr. Downing initiated the PIP
process and five days after Mr. Power informed Lockheed
Martin about his EEOC charge, Lockheed Martin officially
placed Mr. Power on a PIP. The PIP set out objectives and
provided for a six-month review period. The PIP also stated
that further action, up to and including termination, would
be taken if Mr. Power did not meet the PIP's objectives.
Mr. Power's Accusations of Retaliation
August 23, 2017, Mr. Power complained to Lockheed Martin that
his placement on the PIP was made in retaliation for his EEOC
charge. Later in October 2017, Mr. Power requested to be
removed from the PIP at a weekly PIP meeting, but Lockheed
Martin denied his request. At this meeting, after Mr. Downing
stated that Mr. Power was failing his PIP, Ms. Novak
allegedly mentioned Mr. Power's "other
options," referring to his EEOC charge. Power Decl.
¶ 60 (Doc. No. 17-5).
Power also accuses Lockheed Martin of taking several
additional retaliatory actions against him as time went by.
For example, Mr. Power claims that on February 2, 2018, he
was falsely accused by Jennifer Beilak, an Ethics Analyst
Senior Manager, of knowingly allowing one of his supervisees,
Joe Murzyn, to submit false data. Mr. Power claims that the
accusations were deemed unfounded after an internal review.
Lockheed Martin claims that, although there was insufficient
evidence to establish misconduct, the investigator did find
facts indicating a lack of adequate supervision.
Mr. Power's Second Age Discrimination Complaint
Power filed a second charge of discrimination and retaliation
with the EEOC on February 7, 2018 and so informed Ms. Walker,
Mr. Rankin, and Mr. Downing.
Lockheed Martin Demotes Mr. Power for a Second Time
Power's six-month PIP period closed on February 17, 2018.
According to Mr. Downing, Mr. Power failed to achieve the
objectives contained in the PIP. He provided Mr. Power his
2017 year-end performance review on March 8, 2018, giving him
an overall rating of "Inconsistently Achieved."
Pl.'s Opp'nto Def's Mot. for Summ. J. Ex. 22
(Doc. No. 17-4); Power Decl. ¶ 72. In response, Mr.
Power claimed that his negative review was simply continued
age discrimination and retaliation.
April 2018, Mr. Downing and Mitch Rankin, a human resources
representative who replaced Ms. Novak, met with Mr. Power to
discuss the outcome of the PIP and to explain next steps,
which included further review by an internal corporate
committee called the Administrative Review Committee. The
Administrative Review Committee met in May 2018 and concluded
that the allegation of Mr. Power's poor performance was
substantiated. The Administrative Review Committee removed
Mr. Power from leadership and placed him into a Level 4
position with no reduction in pay.
Power appealed the Administrative Review Committee's
findings to the Executive Review Committee, another internal
corporate committee. The Executive Review Committee upheld
the decision and Mr. Power was officially transferred to his
new Level 4 position (Regulatory Document Analyst Staff) on
May 29, 2018.
Power filed a third charge of discrimination with the EEOC in
May 2018. In June 2018, he filed a complaint against Lockheed
Martin in this Court and alleged claims of age
discrimination, retaliation, and hostile work environment
under both the ADEA and the PHRA. Lockheed Martin now moves
for summary judgment.
shall grant a motion for summary judgment "if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). An issue is
"genuine" if there is a sufficient evidentiary
basis on which a reasonable jury could return a verdict for
the non-moving party. Kaucher v. Cnty. of Bucks, 455
F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A factual
dispute is "material" if it might affect the
outcome of the case under governing law. Id. (citing
Anderson, 477 U.S. at 248). Under Rule 56, the Court
must view the evidence presented on the motion in the light
most favorable to the non-moving party. See
Anderson, 477 U.S. at 255. However, "[u]nsupported
assertions, conclusory allegations, or mere suspicions are
insufficient to overcome a motion for summary judgment."
Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249,
252 (3d Cir. 2010).
movant bears the initial responsibility for informing the
Court of the basis for the motion for summary judgment and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the
non-moving party bears the burden of proof on a particular
issue, the moving party's initial burden can be met
simply by "pointing out to the district court that there
is an absence of evidence to support the nonmoving
party's case." Id. at 325. After the moving
party has met the initial burden, the non-moving party must
set forth specific facts showing that there is a genuinely
disputed factual issue for trial by "citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . ., admissions,
interrogatory answers, or other materials" or by
"showing that the materials cited do not establish the
absence or presence of a genuine dispute." FED. R. Civ.
P. 56(c). Summary judgment is appropriate if the non-moving
party fails to rebut by making a factual showing
"sufficient to establish the existence of an element
essential to that party's case, and on which that party
will bear the burden of proof at trial."
Celotex, 477 U.S. at 322.
motion, Lockheed Martin argues that it is entitled to summary
judgment on Mr. Power's age discrimination and
retaliation claims because Mr. Power cannot establish his
prima facie case, all of Lockheed Martin's
decisions were made for nondiscriminatory business
justifications, and there is no evidence in the record to
support a finding of pretext. Regarding Mr. Power's
hostile work environment claim, Lockheed Martin asserts it is
entitled to summary judgment because Mr. Power cannot prove
that he suffered intentional discrimination based on his age
or that the claimed harassment was severe or pervasive. Mr.
Power opposes, arguing that disputes of material fact exist
as to whether Lockheed Martin discriminated ...