Broussard v. Local Book Publishing, Inc. et al
Filing
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ORDER granting 31 Motion for Summary Judgment. Signed by Chief US District Judge Terrence W. Boyle on 11/8/2018. (Stouch, L.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 4:17-CV-64-BO
RUTHE. BROUSSARD,
Plaintiff,
v.
LOCAL BOOK PUBLISHING, INC.,
and LOCAL 360 MEDIA, INC.,
Defendants.
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ORDER
This cause comes before the Court on defendants' motion for summary judgment. [DE 31].
The matter has been fully briefed and is ripe for disposition. For the reasons discussed below,
defendants' motion for summary judgment [DE 31] is GRANTED.
BACKGROUND
In March 2016, defendants hired plaintiff as an at-will sales manager for the North Carolina
region. [DE 1,
~
13]. Defendants "provide[] advertising services, publish[] telephone directories,
and offer[] a variety of print and digital marketing services in North Carolina, Utah, Maryland,
and Delaware." Id.~ 14. Defendants effectively operate as one company. [DE 32, ~ 2].
Plaintiff began work in late April 2016. [DE 1,
~
19]. To do so, she sold her home and
moved from Lafayette, Louisiana to New Bern, North Carolina. Id.~ 48. When she reported to her
new-hire training event in April, plaintiff alleges that she given a "cold reception" by defendants'
executives. [DE 39, p. 4]. A few days later, defendants terminated another employee, who was a
few years older than plaintiff. Id. Then, in early May, plaintiff met with three of defendants'
executives and "honestly expressed to them her concerns.'~ [DE 39, p. 5].
Ultimately, plaintiff was terminated the day after that meeting on May 11, 2016. [DE 1, ~
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107-08]. Another recent hire, Mr. Tommy Ball, took over plaintiffs responsibilities and was given
a higher base pay than what plaintiff had received. [DE 39, p. 6]. Plaintiff then filed suit, alleging
violations of Title VII of the Civil Rights Act (Title VII), the Equal Pay Act, the Age
Discrimination in Employment Act (ADEA), and North Carolina's Equal Employment Practices
Act. [DE 1]. Plaintiff also brought a breach of contract claim. Id.
In October 2017, following a hearing, the Court partially granted and partially denied
defendants' motion to dismiss. [DE 15]. Following a period of discovery, defendants' moved for
summary judgment in August 2018. [DE 31]. Plaintiff responded in opposition. [DE 39].
DISCUSSION
A motion for s-qpnnary judgment may not be granted unless there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the nonmoving party must then come forward and establish the specific material facts in dispute to survive
summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 58788 (1986). In determining whether a genuine issue of material fact exists, a court must view the
evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of
the nonmoving party's position is not sufficient to defeat a motion for summary judgment; "there
must be evidence on which the [fact finder] could reasonably find for the [nonmoving party]."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). And "the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
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for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at
24 7-48 (emphasis in original). Speculative or conclusory allegations will not suffice. Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). The Court finds that there are no
genuine issues of material fact and that defendants are entitled to judgment as a matter of law.
I. Title VII
Plaintiff has not produced sufficient evidence to support her claim of sex discrimination
under Title VII. Plaintiff can establish such a claim (1) "by demonstrating through direct or
circumstantial evidence that sex ... discrimination motivated the employer's adverse employment
decision" or (2) by proceeding under the framework for pretext established in McDonnell Douglas
Corp. v. Green,411U.S.792(1973).Melendezv. Bd. ofEd.forMontgomeryCty., 711 Fed.App'x
685, 687 (4th Cir. 2017) (citing Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 284 (4th
Cir. 2004)). Plaintiff attempts to establish her Title VII sex discrimination claim in both ways. But,
as plaintiff has failed to establish sufficient evidence on both counts to survive summary judgment,
the claims must be resolved in defendants' favor.
A. Mixed-Motive Claim
To survive summary judgment on her mixed-motive discrimination claim, plaintiff "must
produce direct evidence of a stated purpose to discriminate and/or indirect evidence of sufficient
probative force to reflect a genuine issue of material fact." Melendez, 711 Fed. App'x at 687
(citations omitted); Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999).
Ultimately, plaintiff needs to show that her sex was one of the factors that motivated her
termination. Diamondv. Colonial Life &Acc. Ins. Co., 416 F.3d 310, 317 (4th Cir. 2015). The
proof must be sufficient such that a reasonable jury could conclude that sex was a motivating factor
in plaintiffs termination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003).
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Put simply, no such evidence-direct or circumstantial-exists in this case. Plaintiffs
personal, subjective belief that her termination was discriminatory is not sufficient circumstantial
evidence of sex discrimination. See Bryant v. Bell Atlantic Md, Inc., 288 F.3d 124, 135 (4th Cir.
2002) (subjective evidence is insufficient to show discriminatory conduct). Further, the fact that
plaintiff was hired and fired by the same individuals weighs heavily against any finding of sex
discrimination. Proudv. Stone, 945 F.2d 796, 797 (4th Cir. 1991). Similarly, the factthatplaintiffs
replacement, Mr. Ball, was paid more than her is not indicative uf any sex discrimination, because
her replacement had a broader array of job responsibilities. In fact, Mr. Ball was hired prior to
plaintiffs termination to replace a different employee; he was not hired to replace plaintiff. Thus,
plaintiff has not presented sufficient evidence in support of her mixed-motive claim.
B. Single-Motive Claim
"The second method of averting summary judgment is to proceed under a 'pretext' ·
framework, under which the employee, after establishing a prima facie case of discrimination,
demonstrates that the employer's proffered permissible reason for taking an adverse employment
action is actually a pretext for discrimination." Hill, 354 F.3d at 285 (citing McDonnell Douglas,
411 U.S. at 807). To establish a prima facie claim of discrimination, plaintiff must show that (1)
she is a member of a protected class; (2) at the time of the adverse action she was performing at a
level that met her employer's legitimate expectations; (3) she suffered an adverse action; and (4)
similarly situated employees outside of plaintiffs protected class received more favorable
treatment. Gerner v. Cnty. ofChesterfield, 674 F.3d 264, 266 (4th Cir. 2012). If plaintiff establishes
a prima facie case, the burden shifts to the defendant to state a legitimate non-discriminatory reason
for her termination; however, this burden "is one of production, not persuasion." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). If the employer meets this burden,
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the presumption of unlawful discrimination created by the prima facie case dissolves and the
burden shifts back to the employee to show that the given reason was a pretext for discrimination.
St. Mary's Honor. Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993).
Plaintiff fails to establish a prima facie discrimination claim because she cannot point to
any similarly situated male employees who received more favorable treatment. In order to show
that male employees received different treatment, plaintiff must be able to show that these
employees are "directly comparable to [her] in all material respects." Holtz v. Jefferson Smurfit
Corp., 408 F. Supp. 2d 193, 206 (M.D.N.C. 2006). Such a showing includes evidence that the
employees "dealt with the same supervisor, [were] subject to the same standards and engaged in
the same conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer's treatment of them for it." Haywood v. Locke, 387 Fed. App'x 355,
359 (4th Cir. 2010).
Plaintiff argues that Mr. Tommy Ball is an appropriate comparator. The Court disagrees.
As mentioned above, Mr. Ball was hired to replace a different employee and he had a broader array
of responsibilities. Mr. Ball was hired to manage the Delaware and Maryland regions, where
defendants did more business, while plaintiff was hired to manage the smaller North Carolina
region. Plaintiff and Mr. Ball were not "directly comparable ... in all material respects." See Holtz,
408 F. Supp. 2d at 206.
Defendan~s
further point out that plaintiff was paid more than the previous
manager for the North Carolina region. Plaintiff has presented no evidence that she was treated
differently from similarly situated male employees and, as such, has failed to make a prima facie
showing under McDonnell Douglas. As plaintiff has failed to introduce sufficient evidence of sex
discrimination under Title VII, defendants are entitled to judgment as a matter of law.
II. Equal Pay Act
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To establish an actionable claim for discrimination under the Equal Pay Act, plaintiff must
prove she received less compensation than a male counterpart for performing "equal work on jobs
the performance of which requires equal skill, effort, and responsibility." Corning Glass Works v.
Brennan, 417 U.S. 188, 195 (1974). Once a prima facie case is established, the burden shifts to the
defendant "to show, by a preponderance of the evidence, that the wage differential resulted from
one of the allowable causes enumerated by the statute." Fowler v. Land Mgmt. Groupe, Inc., 978
F.2d 158, 161 (4th Cir. 1992). Surviving summary judgment requires that the plaintiff produce
direct or circumstantial evidence that controverts the defendant's legitimate ground for the pay
difference. Brinkley, 180 F.3d at 615 n.13. Courts must look beyond job titles and job descriptions
to evaluate "actual job requirements and performance." Gustin v. W. Va. Univ., 63 Fed. App'x 695,
698 (4th Cir. 2003).
Plaintiff failed to offer any evidence, direct or circumstantial, that supports her claim that
she was paid less than her male counterparts. Again, plaintiff and Mr. Ball did not have comparable
responsibilities. They also did not have comparable prior backgrounds or experience. See Ritter v.
Mount St. Mary's College, 814 F.2d 986, 993 (4th Cir. 1987). Plaintiff cannot demonstrate that
she was receiving less compensation than a male counterpart and thus fails to carry the burden of
proving a prima facie case for discrimination under the Equal Pay Act. Even if she could state an
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actionable claim, plaintiff has presented no evidence that the pay difference between herself and
Mr. Ball (or any other male employee, for that matter) was based on sex. Defendants are entitled
to judgment as a matter of law on plaintiff's Equal Pay Act claim.
III. ADEA
The ADEA makes it unlawful for an employer to "discharge any individual ... because of
[that] individual's age." 29 U.S.C. § 623 (a)(l). To succeed on an ADEA claim, a plaintiff must
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show that age was the but-for cause of her employer's decision. Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 177 (2009). To do so, a plaintiff may either come forward with direct evidence or
come forward with circumstantial evidence and satisfy the McDonnell Douglas burden-shifting
analysis. See E.E.O.C. v. Warfield-Rohr Casket Co., Inc., 364 F.3d 160, 163 (4th Cir. 2004).
Plaintiff has presented no direct evidence of age discrimination. Plaintiffs single reference
to a comment made by one of defendants' sales trainers is not indicative of any discriminatory
attitude and, even if it were, it was made by an employee who played no role in plaintiffs
termination. See Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) ("Even ifthere is
a statement that reflects a discriminatory attitude, it must have a nexus with the adverse
employment action."). Further, in her response in opposition to defendants' motion for summary
judgment, plaintiff"elect[ed] not to proceed with her ADEA claim." [DE 39, p. 25]. Defendants
are, therefore, entitled to judgment as a matter of law on plaintiffs ADEA claim.
IV. Wrongful Discharge
Plaintiff also brings a claim for wrongful discharge pursuant to North Carolina public
policy as stated in the North Ca.rolina Equal Employment Pi:_actices Act (NCEEPA), N.C. Gen.
Stat. § 143-422.1, et seq. The public policy exception to the North Carolina's "employment-atwill doctrine is a 'narrow exception."' Roberts v. First-Citizens Bank & Trust Co., 478 S.E. 2d
809, 814 (N.C. Ct. App. 1997) (citation omitted). It is only applicable where (1) "the public policy
of North Carolina is clearly expressed within [the] general statutes or state constitution, or (2)
potential harm to the public is created by defendant's unlawful actions." McDonnell v. Guilford
County Tradewind Airlines, Inc., 670 S.E.2d 302, 306 (N.C. Ct. App.), disc. rev. denied, 675
S.E.2d 657 (N.C. 2009).
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The same evidentiary standards applicable to Title VII also apply to claims based on the
public policy set forth in the NCEEPA. See, e.g., NC Dep't ofCorr. v. Gibson, 301 S.E.2d 78
(N.C. 1983); Rishel v. Nationwide Mut. Ins. Co., 297 F. Supp. 2d 854 (M.D.N.C. 2003). Plaintiff
bases her NCEEP A claim and her Title VII claims on the same alleged conduct by defendants.
Because plaintiff cannot establish that she suffered, any discrimination in violation of Title VII,
she also cannot prevail on a claim for wrongful discharge under the public policy set forth in the
NCEEP A. See Jones v. Southcorr, LLC, 324 F. sup. 2d 765, 783 (M.D.N.C. 2004); Lenhart v. Gen.
Elec. Co., 140 F. Supp. 2d 582, 594 (W.D.N.C. 2001). Accordingly, defendants are also entitled
to summary judgment on plaintiffs NCEEPA wrongful discharge claim.
V. Breach of Contract
Finally, plaintiff brings a claim for breach of contract. North Carolina has long recognized
the doctrine of employment at will, where either party can terminate the employment relationship
at any time. Edwards v. Seaboard & R.R. Co., 28 S.E. 137 (N.C. 1897). However, parties can opt
to remove that presumption by contracting for different terms. One way to do so is to contract for
a specific length of employment. But "neither the [North Carolina] Supreme Court nor [the] Court
[of Appeals] have ever held that the only contractual relationship sufficient to take a particular
employment relationship out of the 'employment at will' category is a contract for a definite term
of employment." Franco v. Liposcience, 676 S.E.2d 500, 511 (N.C. App. 2009). In fact, in
Kurtzman, the Court specifically denied that. Kurtzman v. Applied Analytical Industries, Inc., 493
S.E. 420, 423 (N.C. 1997) ("We do not, as the dissenting opinion suggests, hold that the
establishment of' a definite term of service' is the sole means of contractually removing the at-will
presumption."). Moving to take a job, as plaintiff did, is also not sufficient to remove the at-will
presumption. Id. Merely agreeing to a rate of pay over a specified amount of time does not
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guarantee a term of service for that time period. Freeman v. Hardee 's Food Systems, 165 S.E.2d
39, 41-42 (N.C. App. 1969). Likewise, merely agreeing to a bonus structure for a specified amount
of performance does not guarantee the right to fully perform that amount. Wilkerson v. Carriage
Park Dev. Corp., 503 S.E. 138, 140 (N.C. App. 1998). Only concrete assurances by an employer
or additional consideration for taking a job can remove the at-will presumption. Franco, 676
S.E.2d at 551; Kristufekv. Saxonburg Ceramics, Inc., 901 F. Supp. 1018, 1023 (W.D.N.C. 1994).
Plaintiff has not demonstrated that she fits any exception to North Carolina's strong
presumption of at-will employment. There is no factual dispute on this claim. The only question
is whether plaintiffs offer letter operated as an employment contract. It did not. The offer letter
containing her annual salary, benefits, and sales bonuses was not enough to overcome the
presumption. Plaintiff was not promised employment for a particular length of time and she was
not promised that she would hold the position until terminated for cause. Under North Carolina
law, no enforceable employment contract existed; plaintiff was an at-will employee. Thus,
defendants are entitled to summary judgment on ,plaintiffs breach of contract claim.
CONCLUSION
For the above reasons, defendants' motion for summary judgment [DE 31] is
GRANTED. The Clerk is DIRECTED to enter judgment in defendants' favor and close the case.
SO ORDERED, this
___8_ day of November, 2018.
T RRENCE W. BOYLE
CHIEF UNITED STATES DISTRIC
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