ORDER

RICHARD M. GERGEL, District Judge.

In this action, Plaintiff alleges that Defendant, Plaintiffs former employer, terminated him due to his age in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a). Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.02(b)(2)(g) DSC, this matter was automatically referred to the United States Magistrate Judge for pretrial proceedings. On January 24, 2012, Defendant filed a motion for summary judgment. (Dkt. No. 25). After Plaintiff filed a response and Defendant filed a reply, the Magistrate Judge held oral argument on Defendant's motion. On April 24, 2012, the Magistrate Judge issued a Report and Recommendation recommending that Defendant's motion for summary judgment be granted and that this case be dismissed.. (Dkt. No. 37). On May 11, 2012, Plaintiff filed objections to the Report and Recommendation. (Dkt. No. 39). For the reasons explained herein, the Court agrees with the findings and conclusions in the Report and Recommendation, grants Defendant's motion for summary judgment, and dismisses this action with prejudice.

I. Factual Background

Defendant is a specialty benefit management company that manages the quality and use of various medical services and treatments affecting more than 30 million people. See CareCore National website, http://www.carecorenational.com/about/about-us.aspx (last visited May 15, 2012). In July of 2006, Defendant purchased a Beechjet 400 (the "jet"), which is "a small jet, twin engine, corporate in nature, seven seats or thereabouts, different configurations, principally used for charter or for small company operations, typically carrying four or five passengers." (Dkt. No. 25-2 at 6). After Defendant purchased the jet, a pilot named Todd Fox brought the jet from its pre-buy inspection to Defendant's CEO, Don Ryan.1 (Dkt. No. 25-3 at 3). At the time of purchase, the jet was based in Poughkeepsie, New York, where Mr. Ryan was living, and the jet was managed by a third party management service, Richmor Aviation. At the time of purchase, Mr. Fox was employed by Richmor Aviation as the captain of the jet, and another individual was employed as the co-pilot of the jet. (Id. at 3-4; Dkt. No. 25-2 at 5). Mr. Fox continued to be employed as the lone captain of the jet from the time the jet was purchased through the fall of 2007. (Dkt. No. 25-3 at 3-4).

In the fall of 2007, Mr. Ryan decided to move to Hilton Head, South Carolina and to relocate the jet to Hilton Head as well. (Dkt. No. 25-2 at 3). Mr. Fox originally did not want to move to Hilton Head, as would be required for him to continue in his position with Richmor. As a result, Richmor hired Plaintiff as the new captain of the jet in October of 2007. (Id.). Although Plaintiff has been qualified to serve as a captain of certain types of aircrafts since 1969 (Dkt. No. 29-2 at 6), Plaintiff had never flown a Beechjet 400 and was not type rated to serve as a captain of that type of aircraft at the time he was hired by Richmor. (Dkt. No. 25-2 at 6, 10). Upon Plaintiff being hired by Richmor, Mr. Fox trained Plaintiff to be type rated to serve as a captain of the jet. (Id. at 10; Dkt. No. 25-3 at 8-10). Richmor paid Plaintiff a salary of approximately $75,000 per year to be the captain of the jet. (Dkt. No. 25-2 at 12). Around December of 2007, Mr. Fox changed his mind and decided that he would like to move to Hilton Head and continue flying the jet for Richmor. (ld. at 4; Dkt. No. 25-3 at 11-13). As a result, Richmor hired Mr. Fox to serve as a captain of the jet along with Plaintiff.

In January of 2008, Mr. Ryan approached both Plaintiff and Mr. Fox and asked them if it would be feasible to remove the jet from Richmor's management and to establish an independent flight department within Defendant. (Dkt. No. 25-2 at 7-8). Plaintiff and Mr. Fox agreed that Mr. Ryan's proposal was feasible, and Plaintiff, Mr. Fox, and Mr. Ryan met on at least two occasions to discuss the new employment arrangement, including Plaintiffs and Mr. Fox's salary and benefits. (Id. at 13-15). During these meetings, Mr. Ryan, Mr. Fox, and Plaintiff agreed that both Plaintiff and Mr. Fox would have the title of "pilot" and that they would both earn a $100,000 per year base salary. (Id. at 9; 13-15). Based on these discussions, Defendant terminated its contract with Richmor on February 1, 2008, and simultaneously hired Plaintiff and Mr. Fox pursuant to the terms agreed upon. Plaintiff, who was born on June 30, 1949 (Dkt. No. 1 at 2), was 58 years old at the time he was hired by Defendant. Plaintiff testified that, at the time he and Mr. Fox were hired by Defendant, he and Mr. Fox were to be equals:

(Dkt. No. 25-2 at 13).

Plaintiff and Mr. Fox remained employed by Defendant as co-pilots from February 1, 2008, through July of 2009, each making $100,000 per year. During this time period, Plaintiff and Mr. Fox would fly the jet together, with one person in the left cockpit seat and one person in the right cockpit seat. As explained in Mr. Fox's deposition:

(Dkt. No. 25-3 at 20).

On July 9, 2009, Plaintiff received a phone call from Defendant's Senior Vice President of Human Resources, Janet Galloway. (Dkt. No. 25-2 at 17). Plaintiff told Ms. Galloway that he could not talk and to please call him back the next day. On July 10, 2009, Ms. Galloway called Plaintiff back and informed him that Defendant no longer needed two captains on the jet and that his services were no longer needed. (ld.). Plaintiff requested to meet with Mr. Ryan to discuss his termination, and Plaintiff met with Mr. Ryan on July 13, 2009.2 Plaintiff testified that, during this meeting, Mr. Ryan told him that he had looked at the costs and usage of the jet and that he could not justify paying two captains. (ld. at 18, 21). Plaintiff testified that Mr. Ryan said it was a business decision to terminate him, and Plaintiff concedes that Mr. Ryan did not indicate that Plaintiffs performance or age had anything to do with the decision. (ld.). Plaintiff also testified that Mr. Ryan apologized that Plaintiffs termination was so poorly handled. (ld. at 18). Plaintiff testified that Mr. Ryan told Plaintiff during the meeting that he was keeping Mr. Fox as captain instead of Plaintiff based on the fact that Mr. Fox had been with Defendant longer than Plaintiff. (ld. at 29). Plaintiff testified that, during this meeting, he indicated to Mr. Ryan that he would have taken a lower paying position in order to avoid unemployment. (ld. at 18, 27-28). Plaintiff had recently turned 60 years old at the time he was terminated by Defendant.

The day before Ms. Galloway called Plaintiff regarding his termination, Ms. Galloway sent a letter to Mr. Miroslaw Hudak offering him a position as co-pilot of the jet at a salary of $50,000 per year. (Dkt. No. 25-12). The letter indicated that Mr. Hudak's employment would begin on July 13, 2009. (ld.). Mr. Hudak had previously flown for Defendant during time periods when Plaintiff was on vacation. (Dkt. No. 25-2 at 6). Mr. Hudak accepted the position with Defendant and continues to work for Defendant and receive a salary of approximately $50,000 per year. (Dkt. No. 29-1 at 4). Mr. Hudak was 29 years old at the time he was hired. (Dkt. No. 29-1 at 4).

II. Procedural Background

Following his termination, Plaintiff filed a charge with the South Carolina Human Affairs Commission (SCHAC) and the Equal Employment Opportunity Commission (EEOC) alleging age discrimination. Plaintiff was issued a Right to Sue letter and timely filed this action. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.02(b)(2)(g) DSC, this matter was automatically referred to the United States Magistrate Judge for pretrial proceedings. On January 24, 2012, Defendant filed a motion for summary judgment, arguing that 1) Plaintiff has failed to establish a prima facie case of age discrimination, and 2) even if Plaintiff has established a prima facie case of age discrimination, Defendant has offered a non-discriminatory reason for terminating Plaintiff, and Plaintiff has failed to create a genuine issue of material fact as to whether this non-discriminatory reason is merely a pretext for discrimination. (Dkt. Nos. 25 and 25-1). On February 10, 2012, Defendant filed a response, arguing that Plaintiff has established a prima facie case of age discrimination and that a genuine issue of material fact does exist as to whether Defendant's stated reason for terminating Plaintiff was a pretext for discrimination. (Dkt. No. 29). On February 21, 2012, Defendant filed a reply in support of its motion for summary judgment. (Dkt. No. 31). On March 27, 2012, Magistrate Judge Bristow Marchant held oral argument on Defendant's motion. On April 24, 2012, Magistrate Judge Marchant issued a Report and Recommendation recommending that Defendant's motion for summary judgment be granted and that this case be dismissed. (Dkt. No. 37). On May 11, 2012, Plaintiff filed objections to the Report and Recommendation. (Dkt. No. 39).

III. Analysis

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made, and this Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). This Court may also "receive further evidence or recommit the matter to the magistrate with instructions." [d. Where the plaintiff fails to file any specific objections, the Magistrate Judge's conclusions are reviewed only for clear error, see Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and this Court is not required to give any explanation for adopting the recommendation of the Magistrate Judge. Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).

a. Summary Judgment Standard

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). It is well established that summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for summary judgment has the burden of showing the absence of a genuine issue of material fact, and the court must view the evidence before it and the inferences to be drawn therefrom in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

b. Applicable Law

Under a claim for age discrimination pursuant to the ADEA, "a plaintiff must prove, with reasonable probability, that but for the age of the plaintiff, the employment decision adverse to the plaintiff would not have been made. Age must have been a determining factor." Duke v. Uniroyal Inc., 928 F.2d 1413, 1417 (4th Cir. 1991). A plaintiff in an age discrimination action may meet his or her burden through either direct evidence of discrimination3 or through circumstantial evidence pursuant to the McDonnell Douglas framework. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997) ("Absent direct evidence of discrimination, [the plaintiff] must satisfy the three-step proof scheme established in McDonnell Douglas. .. to prevail on his ADA and ADEA claims."), overruled on other grounds by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999). The Fourth Circuit has explained the McDonnell Douglas framework as follows:

Duke, 928 F.2d at 1417. Notwithstanding the shifting burdens in the McDonnell Douglas framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

c. Application of the Law to this Case

i. Plaintiff Has Established a Prima Facie Case.

In the case sub judice, the Court finds that Plaintiff has established a prima facie case of age discrimination. In order to establish a prima facie case of age discrimination, a plaintiff must show (1) he is a member of the protected class; (2) he was qualified for the job and met the employer's legitimate expectations; (3) he was discharged despite his qualifications and performance; and (4) following his discharge, he was replaced by someone substantially younger with comparable qualifications. Causey v. Balog, 162 F.3d 795, 802 & n.3 (4th Cif. 1998). It is undisputed that Plaintiff was a member of a protected class because he was over forty years old, that he was qualified for his job and met Defendant's expectations, and that he was discharged from his job. With regard to the fourth element, Defendant argues that Plaintiff was not replaced by someone substantially younger because Plaintiff's position was eliminated altogether in favor of the "co-pilot" position, which entailed different duties and a 50% reduced salary. However, the Court agrees with the Magistrate Judge's finding that, considering the evidence and any reasonable inferences to be drawn from that evidence in the light most favorable to Plaintiff, a genuine issue of material fact exists as to whether Plaintiffs termination occurred under circumstances giving rise to a reasonable inference of age discrimination. Cf. Montana v. First Fed. Sav. and Loan Ass'n of Rochester, 869 F.2d 100, 104-05 (2d Cir. 1989) (holding that the fourth element required to establish a prima facie case for age discrimination may be met under any circumstances giving rise to an inference of age discrimination, and finding the fourth element met where, after plaintiffs discharge, the majority of her responsibilities were transferred to a younger co-worker in a different department and plaintiff was not offered the opportunity to transfer to the other department). Thus, the Court finds that Plaintiff has established a prima facie case of age discrimination.

ii. Defendant Has Articulated a Legitimate Non-Discriminatory Reason.

Next, the Court finds that Defendant has articulated a legitimate non-discriminatory reason for Plaintiffs termination. To satisfy this requirement, the employer is not required to prove absence of a discriminatory motive, but merely to articulate some legitimate reason for its action. EEOC v. Clay Printing Co., 955 F.2d 936,941 (4th Cir. 1991). "It is simply a burden of production not of persuasion." Id. Further, this burden "can involve no credibility assessment." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 1333, 142 (2000). Defendant asserts that Plaintiff was terminated because Mr. Ryan determined that it was not cost effective to keep two captains on the payroll. In his deposition, Plaintiff confirmed that this was the reason Mr. Ryan gave for terminating Plaintiff when they met shortly after Plaintiffs termination. (Dkt. No. 25-2 at 61). While Mr. Ryan passed away before being deposed in this case, Ms. Galloway has submitted an affidavit stating that Mr. Ryan told her that he decided to terminate Plaintiff "after analyzing the usage of the corporate jet and in order to realize cost savings without jeopardizing the safe and efficient operation of the jet." (Dkt. No. 25-5 at 2).4 This explanation is certainly logical in light of the fact that Plaintiff and Mr. Fox were both being paid a captain's salary but were alternating between captain duties and the duties of a co-pilot (also referred to as a "second-in-command"). (Dkt. No. 25-3 at 20). Defendant has also submitted evidence that Mr. Fox had more experience flying the type of aircraft at issue and had worked for Defendant for a longer period of time, and that Mr. Ryan decided to retain Mr. Fox instead of Plaintiff on this basis. (Dkt. No. 25-2 at 22, 29). Finally, Defendant has submitted evidence that Mr. Ryan did not offer the co-pilot position to Plaintiff, instead of Mr. Hudak, because Mr. Ryan did not believe Plaintiff was willing to be a subordinate of Mr. Fox or accept a 50% salary reduction. (Dkt. No. 25-5 at 2-3). Defendant's asserted non-discriminatory reason for terminating Plaintiff is sufficient to shift the burden back to Plaintiff to show that Defendant's asserted reason is a pretext for age discrimination.

iii. Plaintiff Has Failed to Create a Genuine Issue of Material Fact as to Whether Defendant's Asserted Reason for Terminating Plaintiff was a Mere Pretext for Age Discrimination.

Where, as in this case, the defendant meets the burden of production with regard to a legitimate non-discriminatory reason for terminating the plaintiff, "the McDonnell Douglas framework with its presumptions and burdens — disappears, and the sole remaining issue is discrimination vel non." Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (quoting Reeves, 530 U.S. at 142-43). "In other words, 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. (internal citations omitted). "At this point, the burden to demonstrate pretext merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination." Id. (internal citations omitted). In order to satisfy this burden, it is not sufficient for the plaintiff to show merely that the defendant's asserted reason is false; rather, the plaintiff must show "both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515-16 (1993). Here, the Court finds that Plaintiff has failed to create a genuine issue of material fact as to whether his termination was the result of intentional discrimination.

When asked why he believed that he was terminated due to his age, Plaintiff testified as follows: "Because there was no other reason to terminate me and the conversations that had taken place with Todd Fox, who was in a position to influence decision making." (Dkt. No. 25-2 at 19). First, Plaintiffs subjective belief that there was no reason to terminate him other than his age is irrelevant for purposes of determining whether Plaintiff has met his burden, especially in light of the fact that Defendant has offered a legitimate reason for terminating Plaintiff — namely, Defendant's desire to reduce the cost of its flight department by eliminating one captain position (at a cost of $100,000 per year) and replacing it with a co-pilot position (at a cost of $50,000 per year). Second, Plaintiff references "conversations that had taken place with Todd Fox, who was in a position to influence decision making." As explained in Plaintiffs response to Defendant's motion for summary judgment, Plaintiff is referring to conversations which Plaintiff claims he had (and which the Court accepts as true for purposes of this motion) with Todd Fox regarding a change in the law which occurred in 2007. (Dkt. No. 29 at 20-22). Specifically, on December 13, 2007 (approximately one and a half months before Plaintiff was hired by Defendant), the Federal Aviation Administration's longstanding "Rule of 60," which prohibited pilots from flying certain commercial flights after the age of 60, was repealed and replaced with a law increasing the age to 65. See 49 U.S.C. § 44729; see also Jeff Orkin, Comment: Fair Treatment for Experienced Pilots Act — All Good Things Really Do Come to an End!, 73 J. Air L. & Com. 579 (2008) (discussing history of Rule of 60). Plaintiff testified that this change in the law was a common topic of discussion amongst pilots and that he had "multiple conversations over time with different crews and different pilots" about the law. (Dkt. No. 29-2 at 7-8). Plaintiff also testified that the subject came up several times when he was with Mr. Fox and that Mr. Fox commented that he was opposed to the change in the law:

(Dkt. No. 29-2 at 10-11).

While the Court accepts as true for purposes of this motion that Mr. Fox was opposed to the change in the law regarding the Rule of 60, this opposition does not create a genuine issue of material fact as to whether Defendant's CEO, Mr. Ryan, terminated Plaintiff based on his age. Plaintiff does not argue that Mr. Ryan held any ageist bias; rather, Plaintiff argues that Mr. Fox's opposition to the change in the law creates a genuine issue of material fact because Mr. Ryan followed Mr. Fox's recommendation in terminating Plaintiff and acted merely as the "cat's paw." (Dkt. No. 29 at 18-22). Plaintiff, however, has not produced any evidence to support this theory. In Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 286-91 (4th Cir. 2004), the Fourth Circuit discussed at length the burden on a plaintiff asserting an age discrimination claim under the ADEA pursuant to a "cat's paw" theory. The Court "decline[d] to endorse a construction of the discrimination statutes that would allow a biased subordinate who has no supervisory or disciplinary authority and who does not make the final or formal employment decision to become a decisionmaker simply because he had a substantial influence on the ultimate decision or because he has played a role, even a significant one, in the adverse employment decision." ld. at 291. "Regarding adverse employment actions, an employer will be liable not for the improperly motivated person who merely influences the decision, but for the person who in reality makes the decision." Id.

Here, Plaintiff has not produced any evidence (1) that Mr. Fox ever communicated his feelings about the Rule of 60 (or any other negative feelings that he might have had about Plaintiff) to Mr. Ryan, or (2) that Mr. Ryan would have allowed Mr. Fox to be "the person who in reality makes the decision" about Plaintiff's termination. Plaintiff argues that certain evidence shows that Mr. Fox and Mr. Ryan met a few days before Plaintiff was terminated, and Plaintiff suggests that Mr. Fox may have used this opportunity to persuade Mr. Ryan to terminate Plaintiff because of his age. However, a party opposing summary judgment "cannot create a genuine issue of material fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, the only evidence which Plaintiff offers in support of his theory that Mr. Ryan would have followed the recommendation of Mr. Fox, if in fact Mr. Fox instructed Mr. Ryan to terminate Plaintiff, is the following testimony from Mr. Fox:

(Dkt. No. 29-3 at 28-29). However, the fact that Mr. Ryan was an open-minded person and accepted both Plaintiff's and Mr. Fox's input regarding how to run the aviation department is insufficient to create a genuine issue of material fact as to whether Mr. Fox was the actual decisionmaker with regard to Plaintiff's termination.

Finally, the Court's decision to grant Defendant's motion for summary judgment is bolstered by the Fourth Circuit's holding in Proud v. Stone, 945 F.2d 796, 797-98 (4th Cir. 1991). In Proud, the plaintiff brought an age discrimination claim after he was fired six months into his job. The Court held that "in cases where the hirer and the firer are the same individual and the termination of employment occurs within a relatively short time span following the hiring, a strong inference exists that discrimination was not a determining factor for the adverse action taken by the employer." Id. at 797. Here, Plaintiff was fired by Mr. Ryan seventeen months after he was hired by Mr. Ryan. Seventeen months is a sufficiently short time span to create a strong inference that discrimination was not a determining factor in Mr. Ryan's decision to terminate Plaintiff See, e.g., Brown v. CSC Logic, Inc., 82 F.3d 651,658 (5th Cir. 1996) (approving Proud and finding an inference that age discrimination did not motivate the plaintiff's termination where plaintiff was hired and fired by the same person within a four year time span), reversed on other grounds; Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-75 (8th Cir. 1992) (approving Proud and finding that "[i]t is simply incredible, in light of the weakness of plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later"). In Proud, the Court stated: "While we can imagine egregious facts from which a discharge in this context could still be proven to have been discriminatory, it is likely that the compelling nature of the inference arising from facts such as these will make cases involving this situation amenable to resolution at an early stage." Id. at 798. The Court finds that the case sub judice presents no such egregious facts.

IV. Conclusion

For the foregoing reasons, the Court grants Defendant's motion for summary judgment (Dkt. No. 25) and dismisses this case with prejudice.

AND IT IS SO ORDERED.