CORL

Filing 31

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 04/11/2013; that Defendant's Motion for Summary Judgment (Docket Entry 17 ) is GRANTED and that Plaintiff's Complaint is DISMISSED, pursuant to a contemporaneously filed Judgment. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CAROL CORL,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
BURLINGTON COAT FACTORY OF
NORTH CAROLINA, LLC,
Defendant.

1:10CV406

MEMORANDUM OPINION AND ORDER
The instant matter comes before the Court on Defendant’s
Motion for Summary Judgment (Docket Entry 17).
dated Aug. 24, 2011.)1

(See Docket Entry

For the reasons that follow, the Court will

grant Defendant’s instant Motion.
Background
Plaintiff brought this suit against Defendant for “violation
of Plaintiff’s rights protected by the Age Discrimination in
Employment Act, 29 U.S.C. § 621 [(“ADEA”)] and wrongful discharge
based on State Law.”
employment
supervisor.

with

(Docket Entry 1, ¶ 1.)

Defendant

on

April

2,

(Docket Entry 17-1 at 13.)

2001,

Plaintiff began
as

a

receiving

Her duties included:

processing incoming merchandise and placing it accurately
and promptly out on the sales floor; processing all
merchandise returns to vendors, merchandise transfers and
removal of damaged merchandise; maintaining a clean, safe
and organized receiving area; ensuring departmental
adherence to [Defendant’s] loss prevention policies and
1

The Parties have consented to disposition of this case by
a United States Magistrate Judge. (Docket Entry 9.)

procedures; scheduling receiving employees for work;
training new hires; and supervising department employees,
including giving them written discipline and performance
reviews.
(Docket Entry 18 at 3 (citing Docket Entry 17-1 at 15-19); see also
Docket Entry 17-1 at 94.)
As

of

August

2,

2007,

Defendant’s

standard

operating

procedures prohibited employees from holding merchandise for their
personal purchase.

(See Docket Entry 17-1 at 147.)

Defendant

changed this policy, effective April 8, 2009, to allow employees to
hold merchandise for up to two days.

(See id. at 148.)

On or about April 5, 2009, Plaintiff pulled two pairs of jeans
and several shirts from the receiving area and put them in her
office for her own later purchase.

(Docket Entry 17-1 at 39.) One

of the pairs of jeans was regularly priced at $19.99, but bore a
second price sticker reflecting a price of $9.99.

(Id. at 40.)

During a routine audit, Karen Mower, a Regional Loss Prevention
Manager, found the merchandise Plaintiff had pulled.
Entry 17-3 at 12.)
to

write

out

a

(See Docket

According to Plaintiff, Mower asked Plaintiff

detailed

Plaintiff attempted to do.

statement

about the

incident,

(Docket Entry 17-1 at 44.)

which

Plaintiff

asserts that Mower wanted Plaintiff to accept responsibility for
putting
refused.

the

lower

price

(Id. at 44-45.)

sticker

on

the

jeans,

but Plaintiff

Mower crumpled up each statement in

which Plaintiff indicated she did not know who had changed the
price.

(Id. at 45.)
2

Mark Ackerman, the Operations Assistant Store Manager (see
Docket Entry 17-4, ¶ 2), understood that Plaintiff claimed she
pulled the marked-down merchandise from the sale floor (which could
explain the mark-down) (id. ¶ 6; see also Docket Entry 17-3 at 17).
However, Ackerman reviewed surveillance footage in which he saw
Plaintiff remove merchandise from a new merchandise rack in the
receiving area.

(Docket Entry 17-4, ¶ 6; Docket Entry 17-3 at 10-

12, 17.)
Glenn Hodge, the Regional Human Resources Manager (Docket
Entry 17-6, ¶ 2), reviewed the findings of the investigation into
Plaintiff’s held merchandise (id. ¶¶ 3-4).

Based on

the fact the jeans were on hold for [Plaintiff] in the
receiving office, that the merchandise’s price had been
improperly reduced on a markdown sticker, that no
adequate explanation had been given by [Plaintiff] as to
how the price had been changed, and Loss Prevention’s
conclusion, based on the surveillance footage, that
Plaintiff had lied about where she originally obtained
the jeans, [Hodge] concluded that termination was
warranted.
(Id.

¶

4.)2

Accordingly,

Defendant

terminated

Plaintiff’s

employment on April 23, 2009, citing the fact that she held

2

At the time of this investigation and review, Hodge was
63 years of age. (Docket Entry 18 at 7 (citing Docket Entry 19,
¶ 7).)
Defendant submitted the sealed Declaration of Marge
Williams in connection with its instant Motion. (See Docket Entry
19; see also Docket Entry 22 (granting Defendant’s Motion to Seal
said Declaration in order to protect personal privacy of mentioned
individuals).) That Declaration provides the birth dates of each
individual involved in the investigation into and termination of
Plaintiff, including that of Hodge, and corroborates Defendant’s
calculation of his age at the time of the incident.
3

merchandise for her own personal purchase for 3 to 4 days, in
violation of company policy, and that the price on the merchandise
was lowered such that Defendant would incur a loss upon its sale to
Plaintiff.

(Docket Entry 17-1 at 138.)

Based on the foregoing events, Plaintiff pursues a claim under
the ADEA for age discrimination (Docket Entry 1, ¶¶ 18-25) and a
state law claim for wrongful discharge pursuant to the North
Carolina Equal Employment Practices Act (“EEPA”), N.C. Gen. Stat.
§ 143-422.1 et seq. (id. ¶¶ 26-31).

Defendant filed the instant

Motion for Summary Judgment (Docket Entry 17), to which Plaintiff
responded (Docket Entries 27, 28) and Defendant replied (Docket
Entry 29).
Summary Judgment Standard
“The [C]ourt shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

Such a genuine dispute exists if the evidence presented

could lead a reasonable factfinder to return a verdict in favor of
the non-moving party.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). In making this determination, the Court must view
the evidence and any reasonable inferences therefrom in a light
most favorable to the non-moving party.

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

4

The party moving for summary judgment may discharge its burden
by identifying an absence of evidence to support the non-moving
party’s case.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 325

The non-moving party then must “set forth specific facts

showing that there is a genuine issue for trial.” Matsushita Elec.
Indus.,

475

original).

U.S.

at

586-87

(citation

omitted)

(emphasis

in

In this regard, the non-moving party must convince the

Court that evidence exists upon which a finder of fact could
properly

return

a

verdict

in

favor

of

the

non-moving

party.

Anderson, 477 U.S. at 252 (citation omitted); see also Francis v.
Booz, Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006)
(“Mere unsupported speculation is not sufficient to defeat a
summary judgment motion if the undisputed evidence indicates that
the other party should win as a matter of law.”).
Proving Age Discrimination3
“The ADEA provides, in relevant part, that ‘[i]t shall be
unlawful for an employer . . . to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s age.’”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (quoting

3

“Wrongful discharge claims asserted under the EEPA are
analyzed under the same burden-shifting scheme as federal
discrimination statutes.” Hardin v. Belmont Textile Mach. Co., 355
F. App’x 717, 721 (4th Cir. 2009) (citing N.C. Dep’t of Corr. v.
Gibson, 308 N.C. 131, 136-38, 301 S.E.2d 78, 82-84 (1983)).
5

29

U.S.C.

§

623(a)(1))

(brackets,

ellipses,

and

emphasis

in

original).

“The words ‘because of’ mean ‘by reason of: on account

of.’ . . .

[U]nder the plain language of the ADEA, therefore, a

plaintiff must prove that age was the ‘but-for’ cause of the
employer’s adverse decision.”

Id.

“Generally speaking, a plaintiff may avert summary judgment
and establish a claim for intentional . . . age discrimination
through two avenues of proof.”

Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc).
a

plaintiff

may

establish

a

claim

of

“First,

discrimination

by

demonstrating through direct or circumstantial evidence that . . .
age discrimination motivated the employer’s adverse employment
decision.”

Id.4

“The second method of averting summary judgment

4

Even prior to the United States Supreme Court’s decision
in Gross, the United States Court of Appeals for the Fourth Circuit
had recognized that, in the context of the ADEA, “motivated” meant
“but-for” causation, i.e., that age “‘must have actually played a
role in the employer’s decisionmaking process and had a
determinative influence on the outcome.’” Hill, 354 F.3d at 286
(internal citation omitted) (emphasis added) (quoting Reeves, 530
U.S. at 141, which in turn had quoted Hazen Paper Co. v. Biggins,
507 U.S. 604, 610 (1993)). Indeed, the Fourth Circuit had adopted
this understanding of the ADEA’s causation standard much earlier.
See Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir.
1982) (“[T]he narrow motivational [issue] central to any ADEA claim
. . . [is] whether [the plaintiff] was discharged because of his
age or more precisely, whether age was a determining factor in the
sense that but for his employer’s motive to discriminate against
him because of his age, he would not have suffered the unfavorable
action.” (emphasis added) (internal citations, parentheses, and
quotation marks omitted)). In this respect, the Fourth Circuit
differed from some other circuits that, in pre-Gross ADEA cases,
had permitted age to qualify as a “motivating” factor even if it
did not play a determinative role in the adverse action.
See,
6

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.”

Id. at 285 (citing Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 252, 252-53 (1981), and McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 807 (1973)).5

e.g., Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 106 (2d
Cir. 2010) (holding that Gross changed meaning of “motivating” from
that previously understood in Second Circuit). Accordingly, the
use of the word “motivating” to describe the ADEA’s causation
standard in Fourth Circuit cases preceding Gross does not mean that
such decisions lack continuing validity.
5

The United States Supreme Court “has not definitively
decided whether the evidentiary framework of McDonnell Douglas
utilized in Title VII cases is appropriate in the ADEA context.”
Gross, 557 U.S. at 175 n.2 (internal citation omitted). The United
States Court of Appeals for the Fourth Circuit, however, has
endorsed the continued utilization of the McDonnell Douglas
indirect proof scheme in ADEA cases in at least two unpublished
decisions after Gross. See Duffy v. Belk, Inc., 477 F. App’x 91,
93 (4th Cir. 2012); Bodkin v. Town of Strasburg, Va., 386 F. App’x
411 (4th Cir. 2010). Judges of this Court and of other district
courts in the Fourth Circuit also have taken that approach, see,
e.g., Hill v. Southeastern Freight Lines, Inc., 877 F. Supp. 2d
375, 385 (M.D.N.C. 2012) (Beaty, C.J.); Pressley v. Caromont
Health, Inc., No. 3:09–cv–460–FDW–DSC, 2010 WL 4625965, at *2
(W.D.N.C. Nov. 3, 2010) (Whitney, J.) (unpublished), aff’d, 414 F.
App’x 566 (4th Cir.), cert. denied,
U.S.
, 132 S. Ct. 419
(2011); Wall v. Alderman Co., No. 1:08CV785, 2009 WL 5171819, at
*5–6 (M.D.N.C. Dec. 21, 2009) (Dixon, M.J.) (unpublished), aff’d
and adopted, No. 1:08CV785 (M.D.N.C. Mar. 26, 2010) (Tilley, S.J.)
(unpublished), as have all federal appellate courts that have
reached the issue, see Jones v. Oklahoma City Pub. Sch., 617 F.3d
1273, 1278–79 (10th Cir. 2010) (“[W]e conclude that [Gross] does
not preclude our continued application of McDonnell Douglas to ADEA
claims . . . [and, in so holding,] join all of our sibling circuits
that have addressed this issue.” (citing published decisions from
First, Second, Third, Fifth, and Sixth Circuits affirmatively
7

Discussion
In the instant case, Plaintiff opts to proceed under the
pretext approach, arguing that Defendant’s proffered reason for
firing her constituted a pretext for discriminating against her
because of her age.

(See Docket Entry 1, ¶ 20; see also Docket

Entry 28 at 4-7.) Furthermore, “[Defendant] concedes, for purposes
of this Motion only, that Plaintiff can make the minimal showing
necessary for a prima facie case of age discrimination.”
Entry 18 at 11.)

(Docket

For present purposes, the Court thus need only

consider whether Plaintiff has raised a material question of fact
as to pretext.

Viewing all of the evidence before the Court in the

light most favorable to Plaintiff, she has failed to do so.
Plaintiff

contends

that

“[Defendant’s]

allegation

that

[Plaintiff] was terminated due to ‘holding’ merchandise for later
purchase is simply not supported by the evidence.”
28 at 6.)

(Docket Entry

She argues that holding merchandise did not constitute

“an offense for which an employee should be terminated” (id.), and
Defendant does not contest this assertion (see Docket Entry 18 at
16 (citing Docket Entry 17-3 at 15-16, Docket Entry 17-5 at 6-7)).
Plaintiff further asserts that Defendant first stated it terminated
her for holding merchandise, then later changed its reasoning to

embracing McDonnell Douglas analysis in ADEA cases after Gross));
accord Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013);
Fleishman v. Continental Cas. Co., 698 F.3d 598, 604 (7th Cir.
2012); Shelley v. Green, 666 F.3d 599, 607-08 (9th Cir. 2012).
8

include improperly marking down the price of the merchandise,
evidencing pretext.

(Docket Entry 28 at 6.)

The record does not

support Plaintiff’s argument.
Most

importantly,

the

Separation

Notice

that

Plaintiff

received upon the termination of her employment states:
On or about April 5, 2009 [Plaintiff] pulled incoming
merchandice [sic] and held it for her low later purchase
for 3 to 4 days. [T]he price on the merchandice [sic] was
changed to a lower price than originally intended for
sale. [Plaintiff] violated company policy by holding
merchandice [sic] intended for the sales floor and the
lower price on the merchandice [sic] would have caused
[Defendant] to incur a loss.
(Docket Entry 17-1 at 138 (emphasis added).)

The Notice thus

clearly cites the price mark-down as part of the rationale for
Plaintiff’s firing. In addition, Plaintiff indicated in her Charge
of Discrimination with the Equal Employment Opportunity Commission
that her employer “said that a price tag had been changed on an
article

of

clothing”

although

she

denied

making

the

change.

(Docket Entry 17-1 at 142.)
Furthermore, Ackerman, the store manager, testified that the
merchandise Plaintiff held had a mark-down sticker and that at
least part of the investigation he conducted concerned whether
Plaintiff marked down the merchandise. (Docket Entry 17-3 at 8-10;
see also Docket Entry 17-4, ¶ 7 (“I also did not find it credible
that anyone other than [Plaintiff] would reduce the price of
merchandise
office.”).)

she

was

holding

for

herself

in

the

receiving

Finally, Hodge, the Human Resources Manager who
9

recommended Plaintiff’s firing, averred that he acted at least
partly based on the fact that “the merchandise’s price had been
improperly reduced on a markdown sticker, [and] that no adequate
explanation had been given by [Plaintiff] as to how the price had
been changed . . . .”

(Docket Entry 17-6, ¶ 4.)

He also testified

that he based his recommendation on the fact that Plaintiff “was
holding merchandise, . . . changed the price of the merchandise by
putting a marked down ticket on it, . . . and changing the price of
the ticket is basically defrauding the company because it impacts
our bottom line when you change the price of merchandise like
that.”

(Docket Entry 17-5 at 6.)

In the face of the foregoing

record, Plaintiff has failed to show that Defendant altered its
reasons for firing her after the fact.
Plaintiff has argued that Defendant “has not offered any
evidence that shows [Plaintiff] marked down the merchandise.”
(Docket Entry 28 at 6.)

The question, however, is not whether

Defendant’s reason for firing Plaintiff was well-founded; rather,
the issue is what the decisionmaker believed or understood at the
time of the decision.

See Price v. Thompson, 380 F.3d 209, 214 n.1

(4th Cir. 2004) (“We note that mere mistakes of fact are not
evidence of unlawful discrimination.”); Hawkins v. PepsiCo, Inc.,
203 F.3d 274, 279 (4th Cir. 2000) (affirming summary judgment for
employer

where

plaintiff,

discharged

for

poor

performance,

“fail[ed] . . . to supply evidence that [decisionmaker] actually

10

believed [plaintiff’s] performance was good”); Holder v. City of
Raleigh, 867 F.2d 823, 829 (4th Cir. 1989) (“A reason honestly
described but poorly founded is not a pretext, as that term is used
in the law of discrimination.”); Jordan v. Summers, 205 F.3d 337,
344 (7th Cir. 2000) (“Pretext is a lie, not merely a mistake.”).
In this case, the record reflects that Hodge (who made the
recommendation

to fire

Plaintiff)

understood

that

marked-down

merchandise had been found in Plaintiff’s possession and concluded
“that no adequate explanation had been given by [Plaintiff] as to
how the price had been changed . . . .”

(Docket Entry 17-6, ¶ 4.)

He further indicated that he “believed [Plaintiff] engaged in
fraudulent behavior.”

(Id.)

The law does not permit this Court to

assess the soundness of this decision.

See Mereish v. Walker, 359

F.3d 330, 339 (4th Cir. 2004) (“It is not our place to second-guess
the soundness of . . . managerial decisions under the guise of the
ADEA. . . . [W]e are concerned only with ensuring that decisionmakers are not improperly motivated by discriminatory animus.”);
Henson v. Liggett Grp., Inc., 61 F.3d 270, 277 (4th Cir. 1995) (“We
have recognized the importance of giving an employer the latitude
and autonomy to make business decisions . . . .”); see also Bacchus
v. Tubular Textile LLC, No. 1:01CV00621, 2003 WL 21796550, at *6
(M.D.N.C. Mar. 19, 2003) (unpublished) (“Employers retain the right
to make business decisions, even poor or inaccurate ones, so long
as they do not violate the law.” (citing Henson, 61 F.3d at 277)).

11

Although Plaintiff may view the decision to fire her as unfair, she
has

provided

no

evidence

to

suggest

Defendant

acted

with

discriminatory animus based on her age.
Defendant’s brief in support of its instant Motion points out
that, in her deposition, “Plaintiff admitted that he[r] claim of
age discrimination relies exclusively on the terminations of two
other employees at the [same] store who were over the age of 40,
Stephen Robar [] and Hencil Cannon [].”
(citing Docket Entry 17-1 at 65-71).)

(Docket Entry 18 at 12

Plaintiff did not know when

or under what circumstances these firings occurred.
17-1 at 68-69, 71.)

(Docket Entry

According to Defendant, these two individuals

had different job titles from Plaintiff (and from each other), had
different supervisors, and had their employment terminated after
Plaintiff following investigations by different people.
Docket Entry 18 at 13-14.)
assertions.

(See

Plaintiff does not dispute these

(See Docket Entry 28 at 1-7.)

Given the lack of any

commonality in position or supervision, the evidence of Defendant’s
termination of these individuals has no bearing on Plaintiff’s
case.

See, e.g., Sgro v. Bloomberg L.P., No. 05-731(FLW), 2008 WL

918491, at *10 (D.N.J. Mar. 31, 2008) (unpublished) (finding
testimony of non-party former employee irrelevant where his boss
had no supervisory role in plaintiff’s employment), rev’d in part
on other grounds, 331 F. App’x 932 (3d Cir. 2009).

Furthermore,

Plaintiff has presented no evidence of discrimination against Robar

12

or Cannon; although the record contains some testimony from each,
none of it references their firings. (See Docket Entries 17-8, 179, 28-3, 28-4.)
In sum, the evidence, viewed in a light most favorable to
Plaintiff, would not permit a reasonable factfinder to determine
that the reasons Defendant gave for firing Plaintiff represented
pretext for age discrimination.
Conclusion
Defendant has provided a non-discriminatory reason for its
firing of Plaintiff.

Plaintiff, in turn, has failed to show that

record evidence raises a material question of fact regarding
whether

Defendant’s

explanation

constitutes

pretext

for

age

discrimination.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment

(Docket

Entry

17)

is

GRANTED

and

that

Plaintiff’s

Complaint is DISMISSED, pursuant to a contemporaneously filed
Judgment.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 11, 2013

13