Mike Duffy v. Belk, Inc.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:10-cv-00021-GCM. Copies to all parties and the district court/agency. [998837218]. [11-1757]

Appeal: 11-1757

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Date Filed: 04/23/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1757

MIKE DUFFY,
Plaintiff - Appellant,
v.
BELK, INC.,
Defendant - Appellee.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Graham C. Mullen,
Senior District Judge. (3:10-cv-00021-GCM)

Argued:

March 23, 2012

Decided:

April 23, 2012

Before GREGORY, KEENAN, and FLOYD, Circuit Judges.

Affirmed by unpublished opinion.
Judge Gregory wrote
opinion, in which Judge Keenan and Judge Floyd joined.

the

ARGUED: Carol Nelkin, NELKIN & NELKIN, PC, Houston, Texas, for
Appellant.
James Bernard Spears, Jr., OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, PC, Charlotte,
North Carolina, for Appellee.
ON BRIEF:
Stuart M. Nelkin, NELKIN & NELKIN, PC, Houston,
Texas, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

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GREGORY, Circuit Judge:
Appellant Mike Duffy appeals the district court’s grant of
summary judgment in favor of Appellee Belk, Inc.
that

the

district

court

erred

in

finding

Duffy claims

that

he

failed

to

establish a prima facie case of age discrimination under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)
(1999).
twice.

Duffy

contends

that

Belk

discriminated

against

him

First, it eliminated Duffy’s position as director of

customer

relationship

management

(“Director

of

CRM”)

and

consolidated his duties with those of Lis Cravens, then vice
president of marketing and customer research.

Having eliminated

both Duffy’s and Cravens’s positions, Belk selected Cravens, who
is

twenty

years

Duffy’s

junior,

to

assume

the

new

position.

Second, Duffy claims that Belk discriminated against him when it
failed to assign him to one of two positions after his job was
eliminated.
Belk contends that Duffy has not established a prima facie
case

for

age

legitimate,
decision:

the

discrimination

and,

non-discriminatory
elimination

of

in

any

business
Duffy’s

event,

reasons

position

was

it
for
due

had
its
to

a

reduction in force, and the selection of Cravens for the new
position

was

based

on

her

prior

experience

and

education.

Further, Belk argues that it had legitimate reasons to select
other individuals to fill the two positions.
2

The district court

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granted summary judgment in favor of Belk and held that Duffy
neither established a prima facie case for age discrimination
nor offered sufficient evidence to show that Belk’s business
reasons for its decision were pretexts for age discrimination.
Duffy timely appealed this decision.
we

affirm,

holding

that

while

For the following reasons,

Duffy

has

established

a

prima

facie case of age discrimination, he has failed to show that
Belk’s

legitimate

business

reasons

for

its

actions

are

pretextual.

I.
We review de novo the district court’s grant of summary
judgment.

Med. Waste Assocs. Ltd. P’ship v. Baltimore, 966 F.2d

148, 150 (4th Cir. 1992).

To survive summary judgment, Duffy

must show that there is a genuine issue of material fact that
Belk discriminated against him due to his age.
Corp. v. Catrett, 477 U.S. 317, 322 (1986).

See Celotex

Under the ADEA, a

plaintiff “must prove, by a preponderance of the evidence, that
age was the ‘but for’ cause of the challenged adverse employment
action.”

Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352

(2009).

A plaintiff can prove the claim either through direct

or

circumstantial

evidence,

see

Hill

v.

Lockheed

Martin

Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004), or by

3

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the

Document: 35

McDonnell

Date Filed: 04/23/2012

Douglas

Page: 4 of 16

burden-shifting

framework,

McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).
Both

parties

agree

applies in this case.
first

satisfy

the

discrimination.

that

the

McDonnell

Douglas

framework

Under this framework, the plaintiff must

elements

of

a

411 U.S. at 802.

prima

facie

case

of

age

If the plaintiff satisfies

this initial burden, then the burden of production shifts to the
employer to show that its decision to terminate the plaintiff is
based on a legitimate, non-discriminatory reason.
F.3d at 285.

Hill, 354

The burden then shifts back to the plaintiff who

must prove by a preponderance of the evidence that the reason
given is a pretext for age discrimination.

Id.

This framework is not altered in the context of summary
judgment.

See Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1317

(4th Cir. 1993).
nonmoving

party

Further, while summary judgment favors the
in

its

interpretation

of

the

facts,

in

the

context of employment discrimination cases “[i]t is not for this
court . . . to direct the business practices of any company,”
EEOC v. Clay Printing Co., 955 F.2d 936, 946 (4th Cir. 1992),
nor “sit as a super-personnel department weighing the prudence
of employment decisions made by the defendants.”

Anderson v.

Westinghouse Savannah River Co., 406 F.3d 248, 272 (4th Cir.
2005) (internal quotation marks and citations omitted).

4

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II.
A.
Duffy contends that he has established a prima facie case
for age discrimination arising out of the elimination of his
position

and

position.

the

selection

F.3d

Cravens

for

the

consolidated

The elements of a prima facie case vary depending on

the nature of the claim.
293

of

716,

721

n.1

Dugan v. Albermarle Cnty. Sch. Bd.,
(4th

Cir.

2002).

Generally

in

the

reduction-in-force context, a prima facie case is met if the
plaintiff establishes that (1) he qualifies as a member of the
protected class; (2) he was demoted or terminated; (3) at the
time

of

his

termination,

he

met

his

employer’s

legitimate

expectations; and (4) he was replaced by a substantially younger
individual.

See id. at 720-21; see also Reeves v. Sanderson

Plumbing Prods., 530 U.S. 133, 142 (2000).
The district court found that Duffy failed to establish a
prima facie case because he did not meet the fourth element. 1
However, the district court did not apply the proper standard
for the fourth element in the reduction-in-force context for age
discrimination.

See J.A. 932 (finding that the fourth element

1

It is undisputed that at the time of his termination,
Duffy was 61 years old and thus qualified as a member of the
protected class. It is also undisputed that at the time of his
termination, he met Belk’s legitimate expectations as Director
of CRM.

5

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requires a showing that the employer did not treat the protected
status neutrally or there were circumstances giving rise to an
inference
whether

of
the

discrimination).
plaintiff

younger” worker.

was

The

proper

“replaced”

standard

by

a

here

is

“substantially

See Strokes v. Westinghouse Savannah River

Co., 206 F.3d 420, 429-30 (4th Cir. 2000).
Twenty years his junior, Cravens is “substantially younger”
than Duffy.

A closer call is whether Cravens’s assumption of

the consolidated position is a “replacement” of Duffy.
claims

that

eliminated

it

was

because

Cravens’s
she

and

received

employees who reported to him.

not
all

his
of

position

his

duties

Duffy

that

was

and

the

Belk contends that Duffy ignores

the fact that the new position was a consolidation of the two
prior positions and that Cravens’s primary responsibilities in
this new position continue to be customer research and analysis
work.

We have determined before that a transfer of some of a

terminated plaintiff’s duties to younger workers is sufficient
to satisfy the fourth element of a prima facie case of age
discrimination.

Reed v. Buckeye Fire Equip., 241 F. App’x 917,

927 (4th Cir. 2007) (finding that the terminated plaintiff was
replaced by a younger employee when the employer transferred
some of his job duties to a 45-year-old employee and then gave
the plaintiff’s other duties to a 40-year-old employee hired
after

plaintiff’s

termination).
6

Here,

Belk’s

decision

to

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terminate Duffy by consolidating his position with Cravens was
in fact a transfer of Duffy’s duties to the new position.

Duffy

has proven the fourth element and thus established a prima facie
case for age discrimination. 2
B.
Because Duffy has established a prima facie case for age
discrimination,
legitimate,
decisions.

we

must

consider

non-discriminatory

whether

reasons

Belk
for

has
its

put

forth

employment

Belk has offered two: the consolidation of the two

positions and the termination of Duffy were part of a reduction
in force, and Cravens was better suited for the consolidated
position.

Kathy Bufano, then president of merchandising and

marketing and charged by Belk’s executive management to advise
of

any

necessary

job

consolidations,

determined

that

the

Director of CRM and vice president of marketing and customer

2

Because Duffy has established the fourth element, this
Court need not address whether the district court erred in
rejecting Duffy’s statistical evidence to support a prima facie
case.
Duffy argued that out of the 72 employees in the
marketing department, the 2 other employees besides himself
whose jobs were eliminated were between the ages of 52 and 62.
The district court concluded that this evidence was unpersuasive
because “Duffy does not satisfactorily compare the ages of the
employees that were fired with other employees in the department
to create any reasonable inference of discrimination.”
J.A.
932.
It further noted that one of the fired employees, Paul
Michelle, was replaced by an older employee, Jon Pollack.
Id.
At oral arguments, Duffy’s attorney conceded that this court
could not infer age discrimination from Michelle’s termination.

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research
Sears

Date Filed: 04/23/2012

possessed

Brand

model

“like
for

Page: 8 of 16

functions.”

management,

positions be consolidated.

Using
she

as

guidance

recommended

that

the
the

As part of the consolidation, Bufano

proposed that the employees who report to the Director of CRM be
placed under the consolidated position.

She also suggested that

Cravens’s responsibility over “special events” –- many of which
were fashion-related –- should be transferred to another vice
president who already managed the company’s fashion shows and
trends.

Both moves, Bufano reasoned, improved the alignment of

“like tasks” under her supervision.
Bufano also recommended that the consolidated position be
assigned

to

Cravens

because

her

experience

with

marketing

strategies would enhance Belk’s direct mailing marketing.

She

also found Cravens’s experience as a “brand manager” valuable to
the

combined

functions

of

the

new

position.

Additionally,

Bufano took into consideration Cravens’s attainment of an MBA
degree

and

“Private
viewed

her

Brands”

as

success.

a

significant
merchandise,

critical

growth

contributions
which
brand

the
for

to

the

executive
the

company’s
management

company’s

future

Bufano thus based her recommendation on “strategic

business decision[s]” that are “legally sufficient” to support
Duffy’s termination.
Cir. 2004).

Mereish v. Walker, 359 F.3d 330, 335 (4th

For these reasons, Belk has offered legitimate,

non-discriminatory reasons for its decisions.
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C.
Because
reasons

for

Belk
its

put

forth

decision,

legitimate,

Duffy

bears

non-discriminatory

the

final

burden

of

showing that the reasons presented by Belk are merely pretexts
for

age

discrimination.

Duffy

can

establish

pretext

by

establishing that the reasons given are “unworthy of credence”
or by presenting other evidence “sufficiently probative of age
discrimination.”

Mereish,

359

F.3d

at

336.

Duffy

presents

several arguments in an attempt to show that age discrimination
was the basis of Belk’s decisions, including (1) Belk knew that
he was substantially older than Cravens; (2) his position had
never

been

consolidated

with

another

position

before

the

reduction in force; (3) Belk recognized him as a good employee;
and

(4)

the

consolidated

position’s

most

important

duty

was

direct mailing, a duty that he was more qualified to manage than
Cravens.
As evidence, Duffy points to several items in the record.
Neither party disputes that Duffy’s position as Director of CRM
had never been consolidated with another prior to 2008, and the
record indicates that Belk’s executive management believed Duffy
to be a good employee.
Belk
years

at

least

Cravens’s

had

And a reasonable jury could infer that

constructive

senior,

was

knowledge

older

than

that

her.

Duffy,

twenty

However,

this

evidence is insufficient under our precedent to show that Belk’s
9

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business

reasons

Date Filed: 04/23/2012

for

the

Page: 10 of 16

consolidation

of

the

positions,

termination of Duffy, and selection of Cravens were pretexts for
age

discrimination.

See,

e.g.,

Birkbeck

v.

Marvel

Lighting

Corp., 30 F.3d 507, 512 (4th Cir. 1994) (“In a reduction of work
force case, the fact that the duties were assumed by a younger
individual is not conclusive of age bias.”); Mereish, 359 F.3d
at 338-39 (rejecting plaintiffs’ argument of pretext that their
positions were important to the employer’s mission: “The very
nature of a [reduction in force] is that some workers must be
let go, and difficult decisions have to be made.”); Anderson,
406 F.3d at 270 (rejecting plaintiff’s argument to show pretext
that

she

was

better

educated

and

more

experienced

than

the

younger employee when the employer based its decision to promote
the younger employee on other legitimate criteria).
Duffy’s final contention does not create an inference of
pretext

either.

It

is

true

that

Duffy

possesses

years

experience in direct mailing while Cravens possesses none.
J.A. 631.

of
See

However, Duffy has not established a record that

could support a finding by a preponderance of the evidence that,
in

his

words,

“the

most

important

position involved direct mail.”

aspect

of

the

combined

When an employer consolidates

two positions it is expected that each position’s duties will
share a significant part of the consolidated position.

Here,

the consolidated position comprises duties from both Cravens’s
10

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and

Document: 35

Duffy’s

retained

former

the

initiatives,
strategic

Date Filed: 04/23/2012

positions,

functions

of

overseeing
direction,

and

Page: 11 of 16

as

developing

customer
developing

Cravens
and

testified,

she

executing

research

data,

providing

research

organizational

direction

regarding customer research strategies, and participating on the
market research committee.

J.A 646, 632-42.

Duffy makes much

of the fact that Belk spends significantly more of its marketing
budget on direct mailing than on customer research.

However,

the amount of money spent on direct mailing is not evidence that
the most important of Cravens’s duties involves direct mailing.
A

plaintiff

alleging

an

ADEA

claim

must

adverse employment action was motivated by age.

show

that

the

See Tex. Dep’t

of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Mereish,
359 F.3d at 336 (holding that plaintiffs failed to show pretext
despite documented evidence of the employer’s desire to protect
the

“young,

bright,

junior”

employees

and

the

employer’s

expressed concern with the aging workforce); Dugan, 293 F.3d at
722 (holding

that

a

plaintiff

failed

to

show

her

employer’s

reason for demoting her was pretextual for discrimination when
the employer did not abide by its own mandatory seniority policy
when allocating full-time status between the older, and more
senior plaintiff and the younger, more junior employee).

In

this case, Duffy cannot point to a single reference by Bufano or
any other Belk employee that would allow this Court to infer
11

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that

Document: 35

age

played

termination.

Date Filed: 04/23/2012

any,

let

Further,

alone

a

because

Page: 12 of 16

dispositive,

Cravens

was

role

in

assigned

his

to

a

consolidated position, this is a decidedly different case than
if she had assumed the Director of CRM position.

And Duffy has

failed to show that the consolidation is a sham because the
consolidated position’s duties are substantially similar to his
terminated position.

For these reasons, Duffy’s evidence is

insufficient to permit an inference that Belk’s business reasons
for

its

decisions

were

unworthy of credence.

pretexts

for

age

discrimination

or

See Holland v. Washington Homes, Inc.,

487 F.3d 208, 215 (4th Cir. 2007).

III.
Finally, we address Duffy’s challenge that Belk failed to
assign him to one of two positions after his own position was
consolidated: director of email content or vice president of
advertising planning and analysis.

The district court found

that Duffy was unable to establish a prima facie case of age
discrimination for either position and even if Duffy did present
such

a

showing,

he

failed

to

rebut

the

legitimate

non-

discriminatory reasons given for hiring other candidates.
The first position, director of email content, was assigned
to Carolyn Hartman in December of 2008.
time

was

the

vice

president
12

of

Hartman, who at that

advertising

planning

and

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analysis, was having a serious romantic relationship with Jon
Pollack.
he

Due to Pollack’s transfer to a consolidated position,

became

a

direct

personnel policy.

supervisor

of

Hartman

in

violation

of

To prevent this conflict of interest, the

company assigned Hartman to the director of email content, a
position not overseen by Pollack.
a

$30,000

pay

cut,

as

well

As a result, Hartman accepted

as

a

title

reduction.

This

assignment was not a part of Belk’s reduction-in-force measures.
The second position was a result of this reassignment.

To

replace Hartman in her vice president position, Belk executive
management promoted Sue Curley.

Curley was selected due to her

merchant experience, gained during her time at Belk and at her
prior job.
before

She was promoted to this position several weeks

Belk’s

human

resources

department

offered

choice of assuming two lower-level positions.

Duffy

the

Duffy declined,

however, because neither position met his salary expectation of
$160,000.
Duffy argues that Belk should have offered him the position
of director of email content instead of Hartman.
addresses

whether

reduction-in-force

this

challenge

framework

or

should
the

be

Neither party

analyzed

traditional

Douglas discrimination-in-hiring framework.

under

a

McDonnell

Regardless, under

either framework Duffy does not make out a prima facie case.
Duffy

has

not

shown

that

Belk’s
13

reassignment

was

an

adverse

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employment action against him as required in the reduction-inforce

context.

Duffy

has

not

presented

any

evidence

that

indicates Hartman’s reassignment was actually connected to the
reduction

in

force

and

not

involvement with Pollack.

solely

due

to

her

romantic

Nor has he shown, as required in the

discrimination-in-hiring context, that he ever applied for the
position and was qualified, other than offering his own opinion
of his experience relative to Hartman.
411 U.S. at 802.
as

someone

qualified

of

her

See McDonnell Douglas,

Hartman, unlike Duffy, was identified by Belk
“High

for

became available.

Potential”

two

upward

whose

experience

promotions

if

such

and
a

talent

position

In light of the evidence, Duffy has not made

a prima facie case for age discrimination with respect to the
director of email content position.
Even if Duffy had established a prima facie case, Belk has
offered a legitimate, non-discriminatory reason for transferring
Hartman

to

the

position:

to

avoid

a

conflict

of

interest.

Duffy’s support for a finding of pretext is the fact that Belk
was willing to create a new position for Hartman who is younger
but was unwilling to create a new position for him.

This point

overlooks

Duffy

the

fact

that

Human

Resources

did

offer

two

positions that he rejected and also ignores that our analysis is
not

about

occurred.

unfairness

but

about

whether

age

discrimination

As the district court properly found, Belk has no
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duty or personnel policy that requires it to assign Duffy to an
alternate

job

after

it

eliminated

his

position.

For

these

reasons, Duffy has not shown that the decision to assign Hartman
to be the director of email content instead of him was due to
his age.
Finally,

Duffy

argues

that

he

was

discriminated

against

based on his age in Belk’s failure to promote him to the vice
president position.

In a failure-to-promote claim, Belk must

establish that he (1) is a member of a protected class; (2)
applied for the position; (3) was qualified for the position;
and (4) was rejected for the position under circumstances that
give rise to an inference of unlawful discrimination.
406 F.3d at 268.

Anderson,

The district court found that Duffy could only

satisfy the first element.
Duffy admits that he did not apply for the position but
states

that

management
Duffy

two

was

sought

cites

element

he

not

out

no

case

of

the

allowed

Curley
law

and

that

standard

to

because

offered

supports

when

applicants in the first place.

the

executive

the

position.

Court

excusing

her

this
job

the

was

not

open

to

However, even if we were to

agree with Duffy on this point, Belk has offered legitimate,
non-discriminatory

reasons

for

seeking

out

Curley

and

hiring

her: she possessed extensive merchant experience, and she had
been identified as a “High Potential” employee by Belk.
15

Duffy

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responds that he is qualified for the position; however, “[i]t
is the perception of the decision maker which is relevant, not
the

self-assessment

of

the

plaintiff.”

Evans

v.

Techs.

Applications & Serv. Co., 80 F.3d 954, 960-61 (4th Cir. 1996).
Other than his assertions, Duffy has not offered evidence to
reject Belk’s non-discriminatory reasons and thus fails to meet
his burden of showing that these reasons were pretexts for age
discrimination.

IV.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of Belk.
AFFIRMED

16