VALCARCEL v. ABM INDUSTRIES/ DIVERSICO INDUSTRIES

Filing 47

MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 6/7/2019. ABM's motion for summary judgment (Doc. 40 ) is GRANTED and this action is DISMISSED WITH PREJUDICE. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PATRICK B. VALCARCEL,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ABM INDUSTRIES/DIVERSICO
INDUSTRIES,
Defendant.

1:17-CV-00735

MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, Chief District Judge.
Plaintiff Patrick B. Valcarcel, proceeding pro se, alleges
that his former employer, Defendant ABM Industry Groups, LLC
(“ABM”), discriminated against him in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”) and the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621 et seq. (“ADEA”).
for summary judgment.

Before the court is ABM’s motion

(Doc. 40.)

ready for consideration. 1

The motion is fully briefed and

For the reasons set forth below, the

motion will be granted and the action will be dismissed.
I.

BACKGROUND
The facts, viewed in the light most favorable to Valcarcel as

1

After filing his response, Valcarcel filed another letter (Doc. 45),
which the court will treat as a surreply. A surreply is not authorized
under the court’s local rules, see Local Rule 7.3, but can be allowed
“when fairness dictates based on new arguments raised in the previous
reply.” DiPaulo v. Potter, 733 F. Supp. 2d 666, 670 (M.D.N.C. 2010).
Here, Valcarcel does not note any new arguments to which he is
responding, and thus the court will not consider his surreply.

the non-moving party, are as follows:
Valcarcel is a white male, American-born, who worked as an
at-will employee of ABM from September of 2012 until he was
terminated in October of 2015 at approximately age 57. 2
1 at 46–48; Doc. 40-1 at 12, 39, 68.)

(Doc. 2-

ABM maintains policies

concerning discrimination in the workplace that are distributed to
new employees when they are hired and are posted in the workplace. 3

2

ABM and Valcarcel disagree over whether Valcarcel was employed as a
“Project Manager” or a “Quality Control Janitor.” The record is also
unclear as to his precise age at the time of his termination, with
references to both age 57 and 59. These disputes are not material to
resolution of this motion.
3

In his deposition, Valcarcel denied that the signature on a document
(marked as exhibit 7) entitled “Employee Instructions, Information and
Work Rules” was his. (Doc. 40-1 at 49, 50.) Whether Valcarcel signed
the form describing ABM’s nondiscrimination policies is not material and
does not alter the fact that ABM maintained this policy. In any event,
Valcarcel stated in his deposition that the document describes the
company’s prohibition on discrimination and that he knew of the company’s
policy:
Q. Prior to your employment beginning at ABM, do you remember
signing a number of documents?
A. Oh, I probably did. I probably signed a bunch of stuff
with Chad, you know. I don’t remember off the top of my head
what they were.
Q.
In looking — looking at paragraph one of this Exhibit
Seven, it talks about discrimination or harassment of
employees based on a number of different bases is strictly
prohibited —
A.

Right.

Q.

— at the company, correct?

A.

Oh, of course.

Q.

And you knew that, right?

2

(Doc. 40-1 at 80–85; Doc. 40-2 ¶ 4.) ABM’s “Employee Instructions,
Information, and Work Rules” states that discrimination against,
or harassment of any employee on the basis of race, color, national
origin or ancestry, amnesty, or any other consideration made
unlawful by federal, state, or local laws will not be tolerated
and is prohibited, as well as that “[f]ailure to observe any of
the above rules may be cause for termination.”
81.)

(Doc. 40-1 at 80–

ABM also maintains a toll-free hotline for employees to

report

complaints

retaliation.

of

alleged

discrimination,

harassment,

or

(Id. at 80; Doc. 40-2 ¶ 4.)

Valcarcel’s first supervisor was ABM Project Manager Chad
Chadwick, and after Chadwick left ABM, his supervisor was Project
Manager Nadia Moreno.

(Doc. 40-2 ¶ 5; Doc. 40-3 ¶ 2.)

Both

Chadwick and Moreno reported to Ben Dodds, Senior Regional Director
of Technology and Manufacturing for ABM’s operations in North
Carolina, who is sometimes referred to as the North Carolina branch
manager.

(Doc. 40-2 ¶¶ 1, 5.)

In September or early October 2015, Vanessa Zamora 4, an ABM
employee, reported to Moreno that Valcarcel had made statements

A. Oh, yes. Oh, yeah.
(Doc. 40-1 at 50.)

I didn’t have to sign it to know this.

4

The court earlier referred to this employee as “Samora” (Doc. 20) based
on Valcarcel’s incorrect spelling in his letter to the EEOC attached to
the complaint. (Doc. 2-1 at 19–20.)

3

that offended her. 5

(Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.)

Upon Moreno’s

request, Zamora wrote a written statement about the incident, and
Moreno sent the statement to Dodds, her supervisor.
¶ 3.)

(Doc. 40-3

Valcarcel’s comments, as reported in Zamora’s written

statement, accused Zamora of not being a citizen and referred to
marks on her back from crawling under a fence to enter the country:
[Valcarcel and a security guard] had a conversation
about voting elections. They started saying that they
were gonna vote for Donald Trump the [sic] explained
there [sic] reasons to me. But what made me feel really
bad was when Pat ask [sic] me a very rude question. He
ask [sic] me how did I get my papers?
[And] if they
were fake. That maybe [Moreno] had printed they [sic]
off the computer for me. . . . I told them they wasn’t
fake. [Valcarcel] replied with look at your back from
where you came under the fence. . . . I just really
dislike how they said it in the lobby in front of people
that were waiting to get on the elevator.
(Doc. 40-1 at 86; see Doc. 40-2 ¶ 6.)
representative

Loretta

Renteria,

Moreno, ABM human resources

and

Dodds

discussed

how

to

investigate and respond to the situation and decided that Moreno
should meet with Valcarcel to determine whether he had engaged in
the conversation described in Zamora’s statement.
Doc. 40-3 ¶ 3.)

(Doc. 40-2 ¶ 6;

Moreno informed Valcarcel that his employment was

terminated due to his inappropriate statements.

5

(Doc. 40-2 ¶ 6;

ABM has produced the statement Zamora prepared (Doc. 40-1 at 86), and
both Moreno and Dodds testified in their declarations that Zamora’s
report of Valcarcel’s statements were the reason that Valcarcel was
terminated. (Doc. 40-2 ¶ 6, Doc. 40-3 ¶ 3.) Valcarcel disputes that
he made comments to Zamora. (Doc. 40-1 at 52.) Nevertheless, he does
not dispute that he was informed by his supervisors that the matter was
being reviewed by Human Resources and that the alleged comments were
ABM’s stated reason for his termination. (Doc. 40-1 at 52–53, 55.)

4

Doc. 40-3 ¶ 3.)

Valcarcel testified at his deposition that Moreno

told him he was being fired for being a racist and making a
statement about President Donald Trump, and that he refused to
leave the building until he spoke with Dodds.
24, 26–27.)
his

(Doc. 40-1 at 23–

Moreno called Dodds, and Dodds told Valcarcel that

employment

was

terminated

because

of

statements Zamora reported he made about her.

the

inappropriate

(Doc. 40-1 at 23,

29; Doc. 40-2 ¶ 6; Doc. 40-3 ¶ 3.)
II.

ANALYSIS
A.

Legal Standard

Summary judgment is appropriate “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.”
56(a).

Fed. R. Civ. P.

“A genuine issue of material fact exists ‘if the evidence

is such that a reasonable jury could return a verdict for the
nonmoving party.’”

Basnight v. Diamond Developers, Inc., 146 F.

Supp. 2d 754, 760 (M.D.N.C. 2001) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).

In determining a motion

for summary judgment, the court views the “evidence in the light
most favorable to the non-moving party, according that party the
benefit of all reasonable inferences.”

Id.

Summary judgment

should be denied “unless the entire record shows a right to
judgment with such clarity as to leave no room for controversy and
establishes affirmatively that the adverse party cannot prevail
5

under any circumstances.”

Guessford v. Pa. Nat. Mut. Cas. Ins.

Co., 983 F. Supp. 2d 652, 659 (M.D.N.C. 2013) (quoting Campbell v.
Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)).
Valcarcel

proceeds

pro

se.

“When

reviewing

a

pro

se

complaint, federal courts should examine carefully the plaintiff's
factual

allegations,

determine

whether

no

they

matter
could

how

inartfully

provide

a

basis

pleaded,
for

to

relief.”

Armstrong v. Rolm A. Siemans Co., 129 F.3d 1258, *1 (4th Cir. 1997)
(citations omitted) (unpublished table opinion).

However, the

liberal construction of a pro se plaintiff's pleading does not
require the court to ignore clear defects in pleading, Bustos v.
Chamberlain, No. 3:09-1760, 2009 WL 2782238, at *2 (D.S.C. Aug.
27, 2009), or to “conjure up questions never squarely presented in
the complaint,” Brice v. Jenkins, 489 F.Supp.2d 538, 541 (E.D. Va.
2007) (internal quotation marks and citation omitted).

Nor does

it require that the court become an advocate for the unrepresented
party.

Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th

Cir. 1990).
B.

Title VII Race and National Origin Discrimination

The court will consider the race and national origin claims
at

the

same

time,

because

Valcarcel’s

deposition

frequently

conflated the claims and ABM briefed them together.
Title VII prohibits employment discrimination based on race
and national origin.

A plaintiff may prove discrimination under
6

Title

VII

“either

through

direct

and

indirect

evidence

of

[discriminatory] animus, or through the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”

Foster

v. Univ. of Md. - E. Shore, 787 F.3d 243, 249 (4th Cir. 2015),
abrogated on other grounds by Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338 (2013)).
Valcarcel

has

not

produced

any

direct

evidence

discrimination based on race or national origin.

of

In fact, he

admitted in his deposition that he has no proof of discrimination
based on any protected category, no one employed at ABM at the
time of his termination has information that would indicate that
he was terminated because he was white or American, he has not
spoken

with

any

circumstantial.

potential

witnesses,

and

his

(Doc. 40-1 at 6–7, 24, 55 (“Q.

evidence

is

Did anybody at

ABM ever tell you that any decision made about your employment had
to do with your race?

A.

Oh, no.”), 62, 63 (stating that no one

told him he was fired because of his national origin), 74.)

When

asked at his deposition whether he believes that Dodds made any
decisions about his employment because he was a white American,
Valcarcel responded that he had “no idea.”

(Doc. 40-1 at 24.)

When asked if he has any evidence at all to substantiate his
assumption that Moreno had a problem with him because he is a white
American, Valcarcel responded: “I have no proof of anything other
than she terminated me, but it — Ben Dodds did give her the okay,
7

and so did Human Resources.”

(Doc. 40-1 at 24.)

Thus, Valcarcel

can proceed, if at all, through the McDonnell Douglas burdenshifting framework.
To

establish

Foster, 787 F.3d at 249.
a

prima

facie

claim

of

discriminatory

termination based on race or national origin, a plaintiff must
present facts demonstrating (1) that plaintiff was a member in a
protected class, (2) that he was terminated, (3) that at the time
of the termination, he was performing at a level that met the
employer’s legitimate expectations, and (4) that the position was
filled

by

a

similarly-qualified

protected class.

applicant

from

outside

the

Chang Lim v. Azar, 310 F. Supp.3d 588, 601 (D.

Md. 2018) (citing King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.
2003)); see Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005).
If the plaintiff establishes a prima facie case, “‘the burden
shifts

to

the

employer

to

articulate

a

legitimate,

nondiscriminatory reason for the adverse employment action,’ and
this burden on the employer is one of production, not persuasion.”
Neal v. Green Ford, LLC, No. 1:17-cv-569, 2018 WL 6003547, at *5
(M.D.N.C. Nov. 15, 2018) (quoting Holland v. Wash. Homes, Inc.,
487 F.3d 208, 214 (4th Cir. 2007)), aff’d, 763 F. App’x 331 (4th
Cir. 2019) (per curiam).
Valcarcel clearly satisfies the first and second elements of
the McDonnell Douglas test.

ABM does not dispute that he is a

8

member of a protected class based on his race and national origin. 6
See Causey v. Balog, 162 F.3d 795 (4th Cir. 1998) (considering a
Title VII discrimination claim brought by a white plaintiff);
McMillian v. Lab. Corp. of Am., 399 F. Supp. 2d 670, 672 (M.D.N.C.
2005) (considering Title VII national origin discrimination claim
of an American-born plaintiff); Tansey v. Tex. A & M Int’l Univ.,
No. L-06-83, 2009 WL 801768, at *5–6 & n.3 (considering Title VII
national origin discrimination claim of an American-born white
plaintiff where defendants conceded that the plaintiff was a member
of a protected class).
was terminated.

The parties do not dispute that Valcarcel

Valcarcel has also likely satisfied the fourth

factor because ABM admitted in its response to Valcarcel’s EEOC
Charge of Discrimination that Valcarcel was replaced by a 30-year-

6

Courts have not been consistent in treating “Hispanics” as a national
origin or race class. Compare E.E.O.C. v. PBM Graphics, Inc., 877 F.
Supp. 2d 334, 344 (M.D.N.C. 2012) (treating “non-Hispanic” as a protected
national origin class), with Sanders v. Tikras Tech. Sols. Corp., 725
F. App’x 228, 230 (4th Cir. 2018) (noting, for a Title VII race
discrimination claim brought by an African-American female, that the
plaintiff was replaced by a Hispanic male, but finding that the two were
not similarly situated because the replacement had more experience than
the plaintiff), and E.E.O.C. v. Phase 2 Invs. Inc., 310 F. Supp. 3d 550,
567 (D. Md. 2018) (construing Title VII discrimination allegations for
a class described as “Hispanic” as a race discrimination claim instead
of a national origin claim, because “[t]he term ‘Hispanic’ does not
describe a nation. It is not even a clear geographical area. Unlike
say ‘European’ which could perhaps refer to a perceived racial class or
a continent of origin, ‘Hispanics,’ in the eyes of the Census Bureau at
least . . . can be of any race, any ancestry, any country of origin.”
(internal brackets and quotation marks omitted)).
Here, it does not
matter whether Hispanic describes a race or national origin, as Valcarcel
has failed to show that he was meeting ABM’s expectations and, even
assuming a prima facie case, he has no evidence that ABM’s legitimate
nondiscriminatory reason for terminating him was pretextual.

9

old Hispanic male. (Doc. 2-1 at 50.) 7
Valcarcel fails to establish a prima facie claim, however,
because he has not shown that at the time of his termination he
was performing at a level that met ABM’s legitimate expectations.
In determining whether he was performing satisfactorily, “it is
the perception of the decision maker which is relevant, not the
self-assessment of the plaintiff.”

Hawkins v. PepsiCo, Inc., 203

F.3d 274, 280 (4th Cir. 2000) (brackets omitted); King, 328 F.3d
at

149

(“[The

plaintiff’s]

own

testimony,

of

course,

cannot

establish a genuine issue as to whether [plaintiff] was meeting
[the employer’s] expectations.”)

There were several incidents

leading up to Varcarcel’s termination showing unsatisfactory job
performance.

Valcarcel improperly attempted to reprimand and

terminate another employee and was told by his supervisor, Moreno,
that he did not have the authority to reprimand or terminate other
employees 8 (Doc. 40-1 at 48, 56; Doc. 40-2 ¶ 5, Doc. 40-3 ¶ 2);

7

ABM argues, citing to Hurst v. District of Columbia, 681 F. App’x 186,
191–93 (4th Cir. 2017), that Valcarcel’s prima facie case fails because
he has failed to show that the was treated differently from others
outside the protected class through the use of similarly situated
comparators. (Doc. 41 at 17.) Hurst was a Title VII case based on the
enforcement of employee disciplinary measures, and thus the prima facie
elements of discrimination differed from the elements of a discriminatory
termination claim. Hurst, 681 F. App’x at 190. If the court applied
this factor, Valcarcel’s prima facie case would fail on this element,
because he has not produced evidence of similarly situated employees who
were disciplined differently for similar conduct. Id. at 190–93. In
any event, his claim fails because he has not produced evidence that
ABM’s legitimate nondiscriminatory reason for terminating him was
pretextual.
8

In his deposition, Valcarcel asserted that he had the authority to fire

10

employees and stated that when Moreno explained to him that he lacked
the authority to hire, fire, or discipline people, he disputed it:
Q. And in regards to hiring, firing, and disciplining your
people, Nadia Moreno explained to you that you didn’t have
the authority; is that correct?
A.
She said I didn’t, and I said I do have it.
I said,
unless this is something new that has changed, I do have that
authority.
You can ask — again, I revert back to Chad
Chadwick, who is the one who told me all this. If I didn’t
have it, he wouldn’t have said hire people, if you want them.
If you don’t want them, don’t hire them, and fire the people
that you want to fire. Even when I fired the two people I
did, I didn’t fire them from the company. I said I think
they’re burned out here, and I said hire them somewhere else,
and they, as far as I know, were working not only at that
company that makes that — Corning — but they also — I had
them come back and fill in for me at my building again.
. . .
Q.
At any rate, regardless of whether Chad Chadwick was
there, Nadia Moreno was your supervisor at that time, correct?
A.

Well, I believe so.

(Doc. 40-1 at 48–49; see id. at 56–59.) The declarations of both of
Valcarcel’s supervisors, Moreno and Dodds, state that his position lacks
the authority to hire, fire, or alter the terms and conditions of
employment at ABM. (Doc. 40-2 ¶ 5; Doc. 40-3 ¶ 2.)
Valcarcel acknowledges that his supervisor told him that his
position lacked the authority to fire individuals. (Doc. 40-1 at 48.)
Valcarcel claims that Chadwick, his former boss who was replaced by
Moreno, told him he had such authority (id.); but this is obviously
inadmissible hearsay, and Valcarcel did not provide any admissible
testimony from Chadwick. Valcarcel further argues in his response brief
that the “Job Offer Confirmation” page attached to his deposition (as
exhibit 5) was “obviously altered by a third party” because the “Job
Working Title” section has “Project Manager” crossed out and “Quality
Control Janitor per email” is written in the “Job Type” section in
seemingly different handwriting. (Doc. 43 at 3, 6; Doc. 40-1 at 78.)
Notwithstanding, he testified that the signature at the bottom of the
page is “probably” his, although he also said that he had never seen the
form with “Quality Control Janitor per e-mail” written in. (Doc. 40-1
at 46–47.)
Whether his job title was “project manager” or “quality control
janitor” and whether he actually had the authority to reprimand or fire
other employees is not material to whether Valcarcel was performing
satisfactorily.
It is the perception of the employer that matters.
Hawkins, 203 F.3d at 280.
It is undisputed that he was told by his

11

when told by Moreno that he could not terminate anyone because he
lacked authority to fire employees, Valcarcel emailed Moreno to
tell her he was going to terminate the employee anyway (Doc. 2-1
at 43; Doc. 40-1 at 48, 56–58); Moreno received a complaint that
he made race-based comments to another employee that violated ABM’s
policy against discrimination (Doc. 40-2 ¶¶ 4, 6; Doc. 40-3 ¶ 3);
Valcarcel admits in his deposition that he made an inappropriate
comment at work, exclaiming in the lobby of a building, “I don’t
do anything, I guess if I was Black I’d be fired!,” and that this
statement generated a complaint from ABM’s client (Doc. 40-1 at
66–67,

87).

These

incidents

are

sufficient

to

show

that

Valcarcel’s job performance was not satisfactory at the time he
was terminated.

See Baqir v. Principi, 434 F.3d 733, 743–44 (4th

Cir. 2006); Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 517–18 (4th
Cir. 2006).
Moreover, even if Valcarcel could establish a prima facie
case, ABM has produced a legitimate nondiscriminatory reason for
his termination, and there is no evidence that this reason was
pretextual.

An employer need not demonstrate that its reasons for

terminating the employee were “‘wise, fair, or even correct,’ but
simply that its reasons for taking the action were truly the reason

supervisor, Moreno, that he lacked the authority to discipline or fire
others, he argued about this with her, and he told her he would not
listen to her. (Doc. 40-1 at 48, 56–58.)

12

for the plaintiff’s termination.”

Neal, 2018 WL 6003547, at *6

(quoting DeJarnette v. Corning, Inc., 133 F.3d 293, 298–99 (4th
Cir. 1998) (stating that courts do “not sit as a kind of superpersonnel

department

weighing

the

prudence

of

employment

decisions” (quotation marks omitted)); citing Hawkins, 203 F.3d at
279.)

According

to

the

sworn

declarations

of

both

of

his

supervisors, Dodds and Moreno, Valcarcel was terminated pursuant
to ABM’s zero-tolerance nondiscrimination policy for inappropriate
statements

he

citizenship.

made

to

his

coworker,

Zamora,

regarding

(Doc. 40-2 ¶¶ 6, 7; Doc. 40-3 ¶¶ 3, 4.)

her

In his

deposition, Valcarcel acknowledges that ABM terminated him based
on its belief that he had made these comments.
(“Q.

(Doc. 40-1 at 55

But ABM believed that you had said these things to Jessica

[sic] Zamora, correct?

A.

I guess they did.

They terminated me

for it without speaking to me.”).)
Valcarcel has not pointed to any evidence to suggest that
ABM’s reason for terminating him was pretextual.
F.3d at 801.

Valcarcel claims that ABM fired him because of his

race or national origin are purely speculative.
40-1

at

See Causey, 162

22–24,

33–35,

60,

74.)

His

mere

(See, e.g., Doc.
supposition

of

discrimination, absent proof, is insufficient to survive summary
judgment.
Valcarcel’s

Therefore, ABM’s motion for summary judgment as to
Title

VII

claims

for

discrimination will be granted.
13

race

and

national

origin

C.

Age Discrimination

The

ADEA

makes

it

“unlawful

for

an

employer . . . to

discharge any individual or otherwise discriminate against any
individual . . . because

of

such

individual is at least 40 years old.

individual’s

age”

when

29 U.S.C.§§ 623(a), 631.

the
An

employee who alleges that his employer violated this prohibition
“must prove by a preponderance of the evidence (which may be direct
or

circumstantial),

that

age

challenged employer decision.”

was

the

‘but-for’

cause

of

the

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 177–78 (2009). When considering ADEA claims grounded
in circumstantial evidence, the court uses the McDonnell Douglas
burden-shifting framework.

Westmoreland v. TWC Admin. LLC, No.

18-1600, 2019 WL 2195164, at *3 (4th Cir. May 22, 2019).
As

there

is

no

direct

evidence

of

age

discrimination,

Valcarcel must proceed pursuant to the burden-shifting framework.
(See Doc. 40-1 at 31, 63 (stating in his deposition that no one
told him he was fired because of his age), 75 (“Q.

And of the

people identified on Exhibit 12, who would have information to
substantiate your claim that ABM terminated you because of your
age?

A.

Nobody.”).)

To establish a prima facie case of age discrimination under
the ADEA, a plaintiff must show (1) he was a member of the protected
age group (i.e., over the age of forty); (2) he was discharged or
demoted; (3) at the time of discharge or demotion he was performing
14

his job at a level that met his employer’s legitimate expectations;
and (4) following his discharge or demotion, he was replaced by
someone of comparable qualifications outside the protected class
or substantially younger. 9

Burns v. AAF-McQuay, Inc., 96 F.3d 728,

731 (4th Cir. 1996); Westmoreland, 2019 WL 2195164, at *4.

Upon

a showing of a prima facie case, the burden shifts to the employer
to produce a legitimate nondiscriminatory reason for its decision.
Westmoreland, 2019 WL 2195164, at *4 (quoting Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981); Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).
employer

produces

a

legitimate

nondiscriminatory

When the

reason,

the

burden shifts to Valcarcel to “prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant[employer] were not its true reasons, but were a pretext for
discrimination.”

Id. (quoting Burdine, 450 U.S. at 253).

“The

ultimate burden of persuading the trier of fact remains with the
employee at all times.”

Id. (quotation marks omitted).

There is no dispute that Valcarcel has established the first
two elements of a prima facie case: he was over 40 years old 10 at

9

“In an ADEA case, the plaintiff need not be replaced by someone outside
the protected class (i.e., someone under 40), provided that the
replacement is younger than the plaintiff.” Neal, 2018 WL 6003547, at
*6 n.9 (citing Burns v. AAF-McQuay, Inc. 96 F.3d 728, 731 n.1 (4th Cir.
1996); Laprise v. Arrow Intern., 178 F. Supp. 2d 597, 605 n.8 (M.D.N.C.
2001)).
10

In its brief, ABM states that Valcarcel was 57 at the time of his
termination. (Doc. 41 at 1, 7.) But Valcarcel lists his date of birth

15

the time of termination and thus falls within the ADEA’s protection
for “individuals who are at least 40 years of age,” 29 U.S.C.
§ 631, and he was discharged from his employment.

ABM also does

not dispute that following his discharge, he was replaced by
someone outside the protected class.

(Doc. 2-1 at 50; Doc. 40-1

at 31.)
For the same reasons noted for Valcarcel’s race and national
origin claims, Valcarcel fails to establish the third element of
a prima facie case, because the evidence shows that he was not
performing his job at a level that met his employer’s legitimate
expectations at the time he was terminated.

Moreover, even if he

could establish a prima facie case of age discrimination, ABM has
produced the same legitimate nondiscriminatory reason for his
termination - that he was terminated based on Zamora’s complaint
that he made inappropriate comments about her.

There is no

evidence to suggest that this reason was pretextual.
40-1 at 30–31, 63, 75.)

(See Doc.

Therefore, ABM’s motion for summary

judgment as to Valcarcel’s claim for age discrimination will be
granted. 11

in his EEOC Charge of Discrimination and in his complaint as September,
1956, and his date of termination as October 2015, which would make his
age 59 at the time of his termination. (Doc. 2 at 4; Doc. 2-1 at 13.)
As noted earlier, either way Valcarcel was over the age of 40 at the
time of his termination, and thus any dispute over his exact age does
not preclude the court from deciding the present motion.
11 Because the court grants ABM’s motion for summary judgment as to
Valcarcel’s Title VII and ADEA claims, it need not reach ABM’s alternate

16

III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that ABM’s motion for summary judgment
(Doc. 40) is GRANTED and this action is DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
June 7, 2019

argument that Valcarcel is not entitled to back pay.
21.)

17

(Doc. 41 at 20–