                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 12-2091


ALEXANDER HARRIS,

                 Plaintiff - Appellant,

            v.

POWHATAN COUNTY SCHOOL BOARD, Powhatan County, Virginia,

                 Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.     John A. Gibney, Jr.,
District Judge. (3:11-cv-00224-JAG)


Argued:   September 17, 2013                 Decided:   October 22, 2013


Before GREGORY, DAVIS, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Gregory wrote the opinion, in which Judge Davis
and Judge Keenan concurred.     Judge Davis wrote a separate
concurring opinion.


ARGUED:     Barbara Allyn Queen, LAWRENCE       & ASSOCIATES, Richmond,
Virginia,    for Appellant.   Stacy Leann      Haney, REED SMITH, LLP,
Richmond,    Virginia, for Appellee.   ON      BRIEF: D. Patrick Lacy,
Jr., REED   SMITH LLP, Richmond, Virginia,     for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

       Alexander         Harris     appeals           the     district      court’s       order

granting summary judgment in favor of the Powhatan County School

System (“Board”) on his claims for age and race discrimination.

For the following reasons, we affirm in part, vacate in part,

and remand.



                                                I.

       After fifty-two years of employment with the Board, Harris’

position        was    eliminated     on        March       10,    2009.        J.A.    518-20.

Harris,     a     seventy-two       year-old          African       American,        began    his

employment       with     the     school    district         in     1957   as    a     custodial

worker.         J.A. 148.         He gradually worked his way up through

several supervisory positions and, most recently, was promoted

to    be   Director      of     Maintenance          and    Custodial      Services      by   the

Current Division Superintendent, Dr. Margaret Meara.                                 J.A. 146-

58.    According to his job description, Harris’ responsibilities

included the following:               scheduling work orders; reviewing the

quality     of    work    performed        by    subordinates;          assisting        skilled

workers on difficult tasks; maintaining inventory of equipment;

planning and carrying out a preventative maintenance program;

recruiting,           training,    and     evaluating             staff;    assisting         with

budget preparation; and performing other duties assigned by the

Superintendent.          J.A. 558-59.

                                                 2
        As    with    most   school       employees,     Harris’   employment      was

limited by law to annual contracts.                 J.A. 218-19; Va. Code Ann.

§ 22.1-91.       This meant that each fall Harris had to fill out an

intent to return form, indicating whether he wished to return

for the following year.             In November 2008, Harris completed the

form,    representing        that    he    wanted   to   remain    in   his    current

position for the 2009-2010 school year.                  He returned the form to

Paul Imig, his supervisor and the financial director for the

district.       J.A. 482.        Imig, however, did not submit the notice

as normal; instead, he held it over in order to have discussions

with Harris about retiring.                 J.A. 483.     Around the same time,

Imig told Harris that his position might be eliminated even if

he wished to return.             J.A. 222.       Dr. Meara testified that Imig

told her in January or February 2009 that Harris had expressed

to him a desire to retire at the end of the year.                             J.A. 47.

Harris disputes telling Imig that he wanted to retire.                            J.A.

225.     Dr. Meara also testified that she raised the issue with

Harris herself, and that he stated he was ready to retire, but

only on the condition that he receive money he believed was owed

to him.       J.A. 48.

       Harris alleges that he had an agreement with the school

system, dating back to a prior superintendent’s tenure, that he

would    be    paid     an   unused       portion   of   his   annual   leave     upon

retirement.          J.A. 168.      Ordinarily, school system employees are

                                             3
not allowed to carry over annual leave in excess of forty-eight

days.        J.A. 431-32.              Harris claims that his agreement entitled

him    to      additional             compensation         for    annual       leave    he     accrued

during       the        summer    months       when       he   was     not    permitted      to     take

vacations due to his responsibilities in readying the schools to

open at the start of each year.                           J.A. 168-69.          Harris estimates

that he lost $19,500 over the years.                             J.A. 241-42.

        On     January          29,    2009,    Dr.       Meara      received     a    letter       from

Harris stating that he was “considering retirement in the near

future and would like to check into the recovery of the amount

of annual leave that I have lost over my tenure.”                                     J.A. 434.      On

February           2,     2009,        Imig    sent        a     memorandum       to     Dr.      Meara

recommending that Harris’ position be eliminated, noting that it

would save the school system approximately $100,000 per year.

J.A.        435.         Imig    wrote     that    Harris         had   informed       him     of    his

intention          to     retire,       and    that       he   was     waiting    for    Harris      to

complete           the    necessary        paperwork.             At    a     February    10,       2009

meeting, the Board considered a proposal to eliminate fourteen

staff        positions,          including        Harris’. 1            The    2009-2010        budget


        1
       The parties dispute when the Board first took up the
matter of eliminating Harris’ position. Harris contends that it
was discussed during the January 27, 2009 meeting, a date which
is significant because it would mean that his position was
eliminated prior to Harris’ letter to Dr. Meara.     However, as
the Board points out, the proposal is included in the minutes of
(Continued)

                                                      4
ultimately         adopted      by     the    Board       included        the   proposed      staff

reductions.              J.A.   429.         Each       of   the     three      maintenance       or

custodial positions eliminated, including Harris’, was occupied

by an individual over the age of seventy.                            Id.

      On March 4, 2009, Dr. Meara sent an e-mail to the Board

recommending that Harris’ position be formally eliminated as of

July 1, 2009.            J.A. 514.       In a second e-mail sent March 8, 2009,

Dr. Meara informed the Board that, although Harris had expressed

his intent to retire, he would not leave voluntarily unless he

received       a    large       sum     of     money.            J.A.      513.         Dr.    Meara

communicated         her       opinion       that       Harris     was     holding      the   Board

hostage because “everyone is afraid of what he and his friends

will do.”          Id.     In her deposition, Dr. Meara clarified that she

meant that Harris would take his complaints to friends in the

NAACP.      J.A.         78.      On     March      10,      2009,       the    Board    voted    to

eliminate Harris’ position from the 2009-2010 budget.                                    J.A. 518-

20.      The       minutes      from     that       meeting        list    Harris       as    having

retired.       J.A. 525.

      On   March         16,    2009,        Dr.    Meara     and     Rose      Studivant,       the

director of personnel for the school district, met with Harris




the February 10 meeting and appears to have been discussed then.
J.A. 505.




                                                    5
to discuss his retirement.            J.A. 85.          Studivant states that

Harris again expressed that he wished to retire, but that it

remained contingent on being compensated for his unused leave.

J.A. 457.      After Harris continued to make it known that he

intended to return to work the following year unless he was paid

for the leave time, Dr. Meara wrote him a letter informing him

that his position had been eliminated and that if he wished to

return he could apply for a new position.               J.A. 550.

     To account for the elimination of the position, the Board

reassigned     Harris’    supervisory       duties   to    Russell    Wilson,    a

younger Caucasian man who was already employed by the school

system,   as    well     as   two   other     members     of    the   maintenance

department.     J.A. 433, 459.        Wilson was given a $10,000 stipend

for his additional responsibilities.            J.A. 463.

     Harris filed suit against the Board alleging violations of

Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Age

Discrimination     in    Employment    Act     (“ADEA”).       J.A.   17-20.    The

district court granted the Board’s motion for summary judgment,

concluding that while Harris had made out prima facie cases of

race and age discrimination, he failed to show that the Board’s

stated    non-discriminatory        reasons    for   the       termination     were




                                        6
pretext for discrimination.        J.A. 573.   Harris filed a timely

notice of appeal.   J.A. 580. 2



                                   II.

     We review a district court’s grant of summary judgment de

novo, viewing the facts in the light most favorable to the non-

moving party.   PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d

111, 119 (4th Cir. 2011).         We may only affirm if we conclude

that the evidence establishes that no reasonable jury could find

in the plaintiff’s favor.      See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

                                   A.

     To prevail on his ADEA claim, Harris must show that age was

the “but for” cause of his termination.        See Gross v. FBL Fin.

Serv., Inc., 557 U.S. 167, 177 (2009) (rejecting “mixed motive”

theory of liability for claims brought under the ADEA). 3    Lacking




     2
       The district court also rejected Harris’ claim that the
Board failed to compensate him for his unused leave, finding
that no contract existed. J.A. 575-76. Harris does not pursue
this issue on appeal.
     3
       Harris’ argument that the “but for” standard applies only
at trial is meritless.     Harris cites no authority for this
proposition, and it is contradicted by numerous court decisions
applying the “but for” standard at the summary judgment stage.
See, e.g., Sims v. MVM, Inc., 704 F.3d 1327, 1334 (11th Cir.
2013); Billingslea v. Astrue, No. 12-1528, 2012 WL 6720930, *2
(Continued)

                                    7
direct     evidence    of     discrimination,       Harris      proceeds    under   the

familiar      burden       shifting   framework      established       in    McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).                         See Hill

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th

Cir. 2004) (en banc) (applying McDonnell Douglas to ADEA claim).

Under this approach, “the employee, after establishing a prima

facie      case   of   discrimination,          [must]   demonstrate[]       that   the

employer’s proffered permissible reason for taking an adverse

employment        action    is   actually   a     pretext      for   discrimination.”

Id.     As the district court found and the Board concedes, Harris

has established a prima facie case of age discrimination:                       he is

a member of a protected class, the elimination of his position

was   an    adverse    employment     action,      he    was    performing    his   job

responsibilities adequately at the time of the adverse action,

and his job duties were assumed by an individual outside the

protected class.            See Holland v. Washington Homes, Inc., 487

F.3d 208, 213 (4th Cir. 2007).

      Having established a prima facie case, “the burden shifts

to the employer to articulate a legitimate, nondiscriminatory

reason for the adverse employment action.”                       Hill, 354 F.3d at




(4th Cir. Dec. 28, 2012); Rahlf v. Mo-Tech Corp., Inc., 642 F.3d
633, 637 (8th Cir. 2011).




                                            8
285.    If the employer successfully does so, “the burden shifts

back    to     the     plaintiff    to       prove     by     a    preponderance           of    the

evidence that the employer’s stated reasons ‘were not its true

reasons, but were a pretext for discrimination.’”                                  Id. (quoting

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143

(2000)).

       Here, the Board offered two reasons for its elimination of

Harris’ position:           (1) its belief that Harris wanted to retire,

and (2) its need to address a budgetary shortfall.                                  We conclude

that Harris has presented sufficient evidence from which a jury

could     find       that   both    these        reasons          were    pretext         for    age

discrimination.

       As to the first issue, a reasonable jury could find that

Harris did not indicate a clear intent to retire.                                 First, Harris

submitted       his     notice     of    intent       to     return       form     to     Imig   in

November 2008, indicating that he wished to continue working

through      the       2009-2010        school       year.        Second,        Harris     flatly

disputes Imig’s testimony that he asked to be written out of the

coming year’s          budget,     contending         that        he   never     told     Imig    he

wanted to retire.            Third, Harris’ January 29, 2009 letter to

Dr. Meara stated that he was merely considering retirement and

that he first wanted to inquire about the annual leave funds he

felt he was owed.           Harris also contends that in his meeting with

Dr.    Meara     and    Studivant       on    March     16,       2009,     he    continued       to

                                                 9
express that he would only leave voluntarily if he received the

contested back pay amount.       Viewing the record in the light most

favorable to Harris, he has demonstrated a question of fact as

to whether he expressed plans to retire.

      The district court also erred when it determined that only

the belief of the Board itself – as opposed to Dr. Meara and

Imig - was relevant to determining whether the asserted reason

was pretextual.        The district court held that, regardless of

Dr. Meara’s knowledge or intent, the Board genuinely, even if

mistakenly, believed that Harris wanted to retire, and that, as

the   ultimate       decisionmaker,     only   the   Board’s    views     were

material.     Title VII defines employer as “a person engaged in an

industry affecting commerce who has fifteen or more employees

for each working day . . . and any agent of such a person.”                 42

U.S.C. § 2000e (2006) (emphasis added).              In Hill, this Court

explained:

      [A]n aggrieved employee who rests a discrimination
      claim   under  Title   VII  or   the   ADEA  upon   the
      discriminatory motivations of a subordinate employee
      must come forward with sufficient evidence that the
      subordinate employee possessed such authority as to be
      viewed as the one principally responsible for the
      decision or the actual decisionmaker for the employer.

354 F.3d at 291; see also id. at 290 (“Title VII and the ADEA do

not   limit    the     discrimination      inquiry   to   the   actions     or

statements of formal decisionmakers for the employer.                   Such a

construction of those discrimination statutes would thwart the

                                      10
very   purposes   of    the    acts    by    allowing     employers    to      insulate

themselves   from      liability      simply     by    hiding    behind   the     blind

approvals, albeit non-biased, of formal decisionmakers.”).                            In

her position as Superintendent, Dr. Meara, with help from Imig,

oversaw the annual budget process.                    The record shows that she

interacted   with      Board   members       regarding     the   proposed       budget,

including the decision to eliminate Harris’ position.                          Although

final approval of the decision came only with a formal vote of

the Board, Dr. Meara recommended this action.                    As the day-to-day

supervisor   of   the    school       system,    her     recommendations        on   the

needs of the district and the allocation of funds would carry

significant weight.       Under our precedent, it is therefore proper

to attribute Dr. Meara’s (and to a lesser extent Imig’s) motives

and knowledge to the Board.             See id. at 288-89 (“Reeves informs

us that the person allegedly acting pursuant to a discriminatory

animus    need    not    be    the     ‘formal        decisionmaker’      to    impose

liability upon an employer for an adverse employment action, so

long as the plaintiff presents sufficient evidence to establish

that the subordinate was the one ‘principally responsible’ for,

or the ‘actual decisionmaker’ behind, the action.”).

       In any event, the district court was wrong to say that the

Board was completely unaware of Harris’ equivocation about his

plans.    While the Board does not appear to have been privy to

the communications between Harris, Dr. Meara, and Imig, it did

                                            11
receive an e-mail from Dr. Meara in which she discussed Harris’

hesitation to retire without receipt of the leave funds.                               The

March 8, 2009 e-mail, sent two days before the Board’s final

decision    to    eliminate      the    position,        stated   that   Harris       told

Dr. Meara    he    would   not    sign       his   retirement      papers    and   leave

voluntarily unless he received compensation for his lost leave

time.      A reasonable jury could infer that this communication

created    some    doubt   among       the    Board   as    to    Harris’    desire    to

retire.

     All     of    this    is     sufficient        to     undermine     the    Board’s

contention       that   Harris’    position        was     eliminated       because    he

wanted to retire.          Although Harris’ statements about his plans

were less than crystal clear, he has managed to raise a question

of triable fact as to whether the Board legitimately believed he

intended to retire.             Given the possibility that a jury could

find the Board’s proffered reason to be, at best, false or, at

worst, dishonest, the same jury could likewise conclude that the

stated justification is pretext for discrimination.                         See Reeves,

530 U.S. at 148 (“[A] plaintiff’s prima facie case, combined

with sufficient evidence to find that the employer’s asserted

justification is false, may permit the trier of fact to conclude

that the employer unlawfully discriminated.”).

     Harris has also presented sufficient evidence casting doubt

on the Board’s second proffered rationale for the termination:

                                             12
that the school district was facing a budget crisis and could no

longer afford to keep the position.                               First, Harris has shown

that he was pressured not to return for the 2009-2010 year.

Months       before      the    March        2009    vote        to    approve       the    upcoming

budget,      Imig      suggested        to    Harris           that    he    might    not    have    a

position         in    the     coming        year        and    that       he   should      consider

retiring.         Then, when Harris submitted his notice of intent to

return form, Imig failed to sign the document and return it to

Studivant in the normal course of business.                                  Instead, Imig held

the form over, noting in its margin his plan to have further

discussions           with   Harris     about        retiring.              Imig’s    attempts      to

persuade Harris to leave, as well as his failure to even pass

along Harris’ written intent to return, are subject to multiple

interpretations.               A   jury       might        look       at    this     evidence    and

conclude that the Board had predetermined that Harris needed to

go, perhaps because of his increased age, and only conceived of

the budgetary rationale after failing to convince him to retire.

       Moreover, we note the importance of the fact that each of

the custodial positions eliminated were occupied by individuals

over       the   age    of     seventy. 4           While       it    is    true     that    younger


       4
        Although the record indicates that the two other
individuals retired, the validity of this list is in dispute
given that it also lists Harris as having retired, a designation
which he obviously contests. J.A. 525-26.



                                                    13
employees      in        other    departments         were       also     terminated,         the

decision      to     eliminate          several      positions       occupied        by     older

individuals within the same department is somewhat suspicious.

Working alongside Harris in the maintenance department, these

individuals        are     better       comparators        than    the     other      employees

whose positions were also eliminated.                            A jury might conclude

from these facts that the Board used age as the deciding factor

in    determining         which    positions         to    cut    from     this      particular

department.

       Lastly,       Dr.       Meara     acknowledged        that        the    Board       never

considered         the     financial         justification         for    the     termination

independent        of     its     purported       belief     that        Harris      wanted    to

retire.      She testified that she could not be sure whether the

position would have been eliminated anyway.                          J.A. 103.            Indeed,

she stated that the primary reason for the termination was that

she   felt    Harris       wanted       to    retire.       J.A.    428.        We    are     thus

persuaded against accepting, as a matter of law, the legitimacy

of the Board’s second proffered justification.

       We note that none of Harris’ evidence leads inexorably to

the conclusion that the Board or anyone working for it possessed

a discriminatory animus toward Harris.                            A jury could just as

easily    conclude         that    the       Board   was    genuinely       mistaken        about

Harris’      plans,      and     that    Imig     prodded        Harris    to     retire     only

because the position was going to be eliminated regardless of

                                                14
what Harris wanted.           However, it is not our task to weigh the

evidence    and   make     such     determinations.      Harris’    burden    at

summary judgment “is one of production, not persuasion; it can

involve no credibility assessment.”             Reeves, 530 U.S. at 142

(internal quotations omitted).            When drawing all inferences in

Harris’ favor, he has provided sufficient evidence to contradict

the Board’s proffered reasons for the termination.                  From this

evidence of contradiction, a jury might ultimately conclude that

age discrimination was the actual reason for the termination.

                                        B.

       We now turn to Harris’ claim of race discrimination under

Title VII.    It is again uncontested that Harris has established

the elements of a prima facie case:              Harris is a member of a

protected    class,      he    satisfactorily    performed    his    job,    he

suffered an adverse employment action, and he was replaced by an

individual outside the protected class.               See Holland, 487 F.3d

at 213.     However, Harris has failed to raise an inference that

race   contributed    to      the   Board’s   decision   to   eliminate      his

position.     The sole piece of evidence adduced by Harris with

respect to race is Dr. Meara’s comment that Harris was holding

the Board hostage through its knowledge of his friends in the

NAACP.     However, this statement was only made after Dr. Meara

had decided to write Harris out of the budget and refers to a

fear that Harris would use the threat of a lawsuit to collect

                                        15
the contested back pay amount.                It does not in anyway address

Dr.    Meara’s    or   the    Board’s    motives      in    eliminating          Harris’

position.        On the other hand, the questions raised by Harris

regarding   the     Board’s    proffered       reasons      for    the    termination

decision, i.e., the discrepancy over Harris’ plans to retire and

the pressure placed on him to do so, can both reasonably be said

to be related to his long tenure with the district and advanced

age.    Harris has produced nothing showing a similar connection

between   the     Board’s    decision    and    his    status      as     an    African-

American.        Therefore,    because    Harris      has   failed       to     create   a

genuine   question     as     to   whether     race    played      a     role    in   his

termination, the district court’s dismissal of his Title VII

claim must stand.



                                        III.

       For the foregoing reasons, we vacate the district court’s

entry of summary judgment in favor of the Board as to Harris’

age discrimination claim.           However, we affirm the remainder of

the district court’s judgment.            We remand to the district court

for further consideration consistent with this opinion.


                                                                  AFFIRMED IN PART,
                                                                   VACATED IN PART,
                                                                       AND REMANDED




                                         16
DAVIS, Circuit Judge, concurring:

       I join in full Judge Gregory’s opinion for the panel. I

note simply, and more bluntly than does the majority opinion,

that the School Board’s contention that the elimination of Mr.

Harris’s position was based on a belief that Mr. Harris intended

to retire is transparently silly. An employee’s statement that

“I want to retire” hardly equates to completing the paperwork

attendant   to    retirement.           And,    Mr.   Harris      completed       paperwork

(never processed by the responsible agents of the defendant in

the ordinary course) indicating he intended to return. Thus, the

Board’s   decision         to    advance      in    this   case    his      (inchoate     and

contingent) desire to retire as a non-pretextual reason for its

adverse action significantly undermines the probity of any non-

pretextual justification for the Board’s adverse action.

       Furthermore, as the majority opinion persuasively explains,

a reasonable fact finder could reasonably find that neither the

superintendent        nor       the   Board     had    even    begun     the      budgeting

process   aimed       at    reducing       personnel       costs    by      the    time   the

decision to eliminate Mr. Harris’s position had crystallized.

Ante, at 14. Under the circumstances, therefore, as we hold, the

ADEA   claim     in   this       case    is    not    resolvable       at    the    summary

judgment stage.




                                               17
