Buford v. Ammar's Inc.

Filing 84

OPINION, ORDER denying 80 Motion to Strike Certain Evidence and granting 67 Motion for Summary Judgment Signed by Judge James P. Jones on 1/30/2015. (lml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
RONALD G. BUFORD,
Plaintiff,
v.
AMMAR’S, INC.,
Defendant.

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Case No. 1:14CV00012
OPINION AND ORDER
By: James P. Jones
United States District Judge

Terry N. Grimes and Brittany M. Haddox, Terry N. Grimes, Esq., P.C.,
Roanoke, Virginia, for Plaintiff. Michael N. Petkovich and Meredith F. Bergeson,
Jackson Lewis P.C., Reston, Virginia, for Defendant.
This action involves the plaintiff’s claims of race discrimination against his
employer under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e, et seq, and age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq.

Discovery has been

completed, and pending before the court is the defendant’s Motion for Summary
Judgment. 1
Based on the record, I conclude that summary judgment for the defendant is
proper.

Drawing all inferences in the plaintiff’s favor, the undisputed facts

demonstrate that the plaintiff has failed to raise a genuine issue of fact regarding
1

The motion has been fully briefed and is ripe for decision. I will dispense with
oral argument because the facts and legal contentions are adequately presented in the
materials before the court and argument would not significantly aid the decisional
process.

the defendant’s proffered legitimate reasons for reducing the plaintiff from a full
time employee to part time, with a resulting loss of benefits, namely, an
economically-motivated reduction in force and the plaintiff’s poor work
performance. Because the plaintiff has not shown that his employer’s reasons were
a pretext for discrimination, the defendant is entitled to summary judgment.
I.
Following a timely charge with the Equal Employment Opportunity
Commission (“EEOC”) and having received an issuance of the right to sue, the
plaintiff timely filed suit in this court on March 10, 2014. Jurisdiction exists
pursuant to 28 U.S.C. § 1343.
The facts contained in the summary judgment record, and viewed in the light
most favorable to the plaintiff, are as follows.
Ammar’s is a family-owned company that operates 19 Magic Mart stores in
southern West Virginia, eastern Kentucky, western Virginia, eastern Tennessee,
and central North Carolina.

In addition, Ammar’s operates a warehouse in

Tazewell County, Virginia. Ammar’s employs over 800 people.
The plaintiff has worked for 24 years as a receiving clerk in Ammar’s’
warehouse. Of approximately 100 warehouse employees, the plaintiff is the oldest,
and is one of three African-Americans. In February 2013, at age 68, the plaintiff’s

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hours were reduced from 40 to 20 hours per week, and his benefits were
eliminated.
The plaintiff’s job duties as receiving clerk have remained substantially
unchanged during his employment at Ammar’s’ warehouse, and include unloading
trucks, counting and sorting merchandise to be distributed to individual stores, and
processing invoices. For his work, the plaintiff received annual wage increases
until 2008, but has not received a wage increase since. Despite being the most
senior employee in his department, he currently earns the lowest annual salary due
to his part-time status and lack of wage increases. Ammar’s has a policy of issuing
yearly wage increases to hourly employees for good performance, although the
plaintiff claims that he was never informed of the reasons why he was not given a
raise.
In April 2009, the plaintiff was given a written warning for unsatisfactory
performance, on the basis that he had failed to improve his work pace and
attendance despite cautions from the warehouse and personnel managers. The
plaintiff received a second warning in August 2010 for failing to improve his pace
and quantity of production.
Beginning in 2011, Ammar’s fell on hard times. According to Ammar’s’
undisputed financial records, the business’s net income dropped precipitously
between fiscal years 2010 and 2011, and the business reported growing net losses
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between fiscal years 2012 and 2013.

In response, Ammar’s implemented a

company-wide reduction in expenses, including a mandatory reduction in work
force in early 2013. The records show that Ammar’s’ work force decreased from
759 full-time and 167 part-time employees in January 2012 to 525 full-time and
415 part-time employees in January 2014. In addition to the workforce reduction,
Ammar’s closed two of its 21 Magic Mart stores.
As a result of its financial difficulties, Ammar’s’ top official, K.A. Ammar,
Jr., mandated a reduced cap on working hours for each Magic Mart store and the
warehouse. The authority to decide which employees would be laid off or reduced
to part-time status, however, was delegated to the managers at each location. The
three warehouse managers selected the affected warehouse employees, and claim
that they based their decisions primarily on performance. Based on the plaintiff’s
two prior written warnings, his failure to obtain merit-based wage increases since
2008, and their observations that plaintiff’s work quality was the worst in the
warehouse, the managers selected the plaintiff for hourly reduction. The managers
claim, however, that out of deference to his seniority, they chose to reduce
plaintiff’s hours rather than terminating him. Instead, they chose to lay off a white,
36-year-old male. Ammar’s claims that the plaintiff was not replaced by any
single individual, but that his work was distributed among the remaining
warehouse workers.
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The plaintiff has a different perspective on these events. He questions the
scope of the February 2013 reduction in force, noting that it was not documented
as part of a formal policy, and contends that he was singled out for reduction in
hours and benefits based on his race and age. He asserts that the written warnings
used to justify his demotion were based on his performance of tasks that were
ancillary to his main job duties, and that they were in fact a pretext for
discrimination.
In support of these allegations, the plaintiff claims that after his first written
warning, one of his supervisors, Jimmy Belcher, instructed him not to mention his
reprimand to anyone. Further, the plaintiff’s immediate supervisor, John Lewis,
testified in his discovery deposition that he had expressed frustration after the
plaintiff had received the second written warning, because Lewis had received no
prior notice of the warning and had actually been trying to get the plaintiff a raise
at that time. The plaintiff disputes that the warehouse managers made the decision
to reduce his hours in February 2013, speculating instead that K.A. Ammar, Jr.
personally made the decision based on impermissible racial and age-based
prejudices in an effort to induce him to quit. He claims the warehouse employees
were assured that their hours and wages would not be cut despite the economic
downturn, and that he was never told that the reduction in hours and benefits had
anything to do with his performance.
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Although Ammar’s’ claims that the

plaintiff’s remaining work was distributed among a number of employees, the
plaintiff asserts that he was directly replaced by a 34-year-old white male. 2
In August 2014, after the plaintiff had filed suit, Ammar’s issued the
plaintiff a third written warning for poor performance, along with a mandated
“Performance Improvement Plan.” According to the defendant, the plaintiff had
the worst production record in his department at that time, and warehouse security
cameras revealed that the plaintiff was unproductive for long stretches at a time.
After this warning, however, the plaintiff apparently dramatically improved his
performance. The plaintiff believes that Ammar’s purposefully gave him projects
that took longer to complete prior to the 2014 warning in order to make him appear
less productive in comparison with other warehouse employees, and that the
production records do not accurately reflect his performance. According to the

2

In its Reply Brief, the defendant made factual assertions, supported by
affidavits, intended to respond to some of the claims made in the plaintiff’s Response in
Opposition to Summary Judgment. These claims related to Mr. Ammar’s salary, the
plaintiff’s work performance, and the delegation of work after the plaintiff was moved to
part-time status. The plaintiff has filed a Motion to Strike certain assertions raised in the
defendant’s Reply Brief, on the ground that these facts come from affidavits that were not
submitted with the defendant’s original Motion for Summary Judgment. Despite Rule
6(c)(2)’s general disfavor of reply affidavits, however, the Rule has a limited exception
when the affidavits “address new material issues raised in the opposition papers so as to
avoid giving unfair advantage to the answering party,” as happened here. Litton Indus.,
Inc. v. Lehman Bros. Kuhn Loeb Inc., 767 F. Supp. 1220, 1235 (S.D.N.Y. 1991), rev’d on
other grounds, 967 F.2d 742 (2d Cir. 1992). In any event, the plaintiff’s Motion to Strike
is inconsequential, because I do not rely on any new factual assertions made in the
defendant’s Reply Brief to conclude that summary judgment for the defendant is proper.
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plaintiff, his performance appeared to improve after the warning because he was
assigned easier projects.
In September 2014, the plaintiff was restored to full-time work for several
months to help with the busy Christmas season, but his benefits were not
reinstated. He was returned to part-time status on November 10, 2014.
II.
“The court 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.” Fed. R. Civ. P. 56(a). In determining whether a genuine issue of
material fact exists, the court must view the facts and draw all inferences in favor
of the non-moving party. Fiel v. Va. Emp’t Comm’n, 929 F. Supp. 972, 975 (W.D.
Va. 1995) aff’d, 86 F.3d 1149 (4th Cir. 1996). Although “[s]ummary judgment is
generally disfavored for claims of employment discrimination where issues of
intent are involved,” cases nonetheless exist where summary judgment may be
appropriate. Id. On a motion for summary judgment, the party who will carry the
burden of proof at trial must be able to show that there exists a genuine issue of
material fact as to every element of his claim. Id. “Conclusory or speculative
allegations do not suffice, nor does a ‘mere scintilla of evidence’ in support of [the
non-movant’s] case.” Thompson v. Potomac Electric Power Co., 312 F.3d 645,
649 (4th Cir. 2002) (citation omitted). If the evidence is “merely colorable, or is
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not significantly probative, summary judgment may be granted.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (internal citations omitted).
Title VII and the ADEA prohibit employers from discriminating “against
any individual with respect to his compensation, terms, conditions, or privileges of
employment” based on the individual’s race and age, respectively. See 42 U.S.C.
§ 2000e-2(a)(1) (barring discrimination based on race); 29 U.S.C. § 623(a)(1)
(prohibiting discrimination based on age). Since the plaintiff here does not claim
to have direct evidence of discriminatory intent, his claims under Title VII and the
ADEA are subject to the McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell
Douglas, the plaintiff has the initial burden of establishing a prima facie case of
employment discrimination, including that: (1) he is a member of a protected class;
(2) he was qualified for his position and his performance was satisfactory; (3)
despite his qualifications, he suffered an adverse employment action, namely,
reduction of hours and benefits; and (4) he was replaced by an individual outside
of the protected class. See id. at 802. Once the plaintiff establishes a prima facie
case, the burden shifts to the defendant to respond with evidence that it acted with
a legitimate, non-discriminatory reason. Love-Lane v. Martin, 355 F.3d 766, 786
(4th Cir. 2004). If the defendant is able to make this showing, the burden shifts
back to the plaintiff to present evidence that the defendant’s articulated reason was
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pretext for unlawful discrimination. Id. “Although the evidentiary burdens shift
back and forth under the McDonnell Douglas framework, ‘the ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against
the plaintiff remains at all times with the plaintiff.’” Id. (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Beginning with the elements of the prima facie case, the plaintiff here is
African-American and was 68 years old at the time of his demotion. Accordingly,
the plaintiff unquestionably belongs to protected classes based on his race and age.
See 42 U.S.C. § 2000e-2(a)(1); 29 U.S.C. § 631(a). Second, the plaintiff has raised
a genuine issue of fact as to whether he was qualified for his position and
performing his job in a satisfactory manner.

Although the defendant relies

primarily on the plaintiff’s poor performance record, the plaintiff has also
produced some evidence that his work was satisfactory. See Love-Lane, 355 F.3d
at 787 (finding genuine issue of fact as to plaintiff’s job performance where,
despite undeniable evidence of deteriorating performance, plaintiff also produced
evidence that she continued to perform at satisfactory level). The plaintiff notes
that he has a bachelor’s degree, 11 years experience working for a lumber
company, and 24 years of experience in the receiving department at Ammar’s. For
nearly two decades of employment, the plaintiff never received a complaint from
his supervisors. Even after his work performance apparently declined in recent
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years, the plaintiff received some positive feedback regarding his attendance and
work performance, and one of his supervisors tried to procure him a raise.
Although the company managers claim that they chose not to terminate the
plaintiff out of deference to his seniority, a reasonable jury could infer from the
evidence that the plaintiff was not terminated because he was competent at his job.
“Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions,” and are not for the court to
decide on summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150-51 (2000) (internal quotation marks and citation omitted).
Third, the parties do not dispute that the reduction of the plaintiff’s hours
and benefits qualifies as an adverse employment action. See Boone v. Goldin, 178
F.3d 253, 255 (4th Cir. 1999) (identifying demotion and decrease in pay or benefits
as “typical” evidence to support adverse employment action element of Title VII
claim).
Finally, the plaintiff has raised a genuine issue of fact that his position
remained open to other, similarly qualified applicants. The plaintiff has presented
evidence that he was replaced with white, younger male workers. Although the
defendant claims that the plaintiff was not directly replaced, but that his duties
were distributed among the remaining workers, it does not dispute that other white,
younger workers were restored to full-time status while plaintiff remained part10

time. Cf. Christmas v. Arc of the Piedmont, No. 3:12CV00008, 2013 WL 718812,
at *4 (W.D. Va. Feb. 27, 2013) (finding that plaintiff could not establish prima
facie case where plaintiff’s position, along with position filled by a white male,
were both eliminated and neither were replaced).
The plaintiff, then, has arguably established a prima facie case of
employment discrimination. Therefore, the burden shifts to the defendant to offer
a legitimate, nondiscriminatory reason for the plaintiff’s reduction in hours and
benefits.

Love-Lane, 355 F.3d at 787-88.

It is uncontested that Ammar’s

implemented a widespread reduction in force in February 2013, in response to its
declining financial condition. It is well-established that an employer’s effort to
reduce

expenses

due

to

economic

hardship

constitutes

a

legitimate,

nondiscriminatory reason for laying off employees or reducing their hours. See
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 513 (4th Cir. 1994) (noting that
antidiscrimination laws are “not intended to obstruct the ability of a commercial
enterprise to make necessary adjustments in the face of economic challenges”).
The plaintiff contests the extent of Ammar’s’ financial problems, noting that
executive compensation has remained stable, but does not dispute that the
company’s net income plummeted in the last several years. Despite the plaintiff’s
assertion that the reduction in force was not documented or part of any formal
policy, the defendant has produced records unequivocally demonstrating that the
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number of full-time workers drastically declined during this period while the
number of part-time workers commensurately increased, both in the warehouse and
throughout the company. Several workers were laid off completely, including a
36-year-old white male who was employed in the warehouse along with the
plaintiff.
Further, contrary to the plaintiff’s contention that the decisions regarding
affected employees were entirely subjective, the defendant has produced evidence
that the plaintiff’s performance was among the worst of warehouse employees.
There is no question that performance is a legitimate criterion by which to select
employees for layoffs or reduced hours. Ferris v. AAF-McQuay, Inc., No. 5:06CV-00082, 2007 WL 2437685, at *4 (W.D. Va. Aug. 22, 2007). Here, it is
undisputed that the plaintiff received two written warnings and that he had not
received a merit-based wage increase for five years prior to the reduction in force.
Further, his supervisors uniformly testified that the plaintiff’s performance was the
worst in the warehouse. The plaintiff does not contest these facts, but asserts
without supporting evidence that his write-ups were “ridiculous” and that he was
intentionally given assignments that would make him appear less productive. The
plaintiff is entitled to his opinion of his work product, but the Fourth Circuit has
“repeatedly explained that it is the perception of the decision maker which is
relevant, not the self-assessment of the plaintiff.” DeJarnette v. Corning Inc., 133
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F.3d 293, 299 (4th Cir. 1998) (internal quotation marks and citations omitted).
Further, while the plaintiff points to limited evidence indicating that his
performance may have been satisfactory at times, such evidence is insufficient to
raise a genuine issue of fact as to whether his supervisors’ decision to reduce his
hours was legitimate, given the undisputed evidence that the plaintiff’s
performance was among the worst of any warehouse employee prior to the
reduction in force.
The plaintiff argues that the defendant’s reasons for giving him warnings
for poor performance and ultimately moving him to part-time status were
pretextual, but his assertions amount to “mere unsupported speculation” that is
insufficient to defeat a summary judgment motion. Ennis v. Nat’l Ass’n of Bus. &
Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). The plaintiff offers no evidence
to support his claims that the warnings he received and lack of pay raises were
motivated by discrimination, and “there is nothing in the record to suggest as a
reasonable probability that [his supervisors] did not truly believe that [his] job
performance was poor and at a level below [his] co-workers.” Ferris, 2007 WL
2437685, at *4. Further, the plaintiff’s argument that his reduction in hours must
have been pretextual based on his supervisors’ purported reassurance that the
warehouse employees’ jobs would not be cut, and their neglect to inform him of
his poor job performance, is unpersuasive. Assuming the truth of these facts, they
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do not, in themselves, raise any sort of inference of discrimination. “The ultimate
question is whether the employer intentionally discriminated, and proof that the
employer’s proffered reason is unpersuasive, or even obviously contrived, does not
necessarily establish that [the plaintiff’s] proffered reason . . . is correct.” Reeves,
530 U.S. at 146-47 (internal quotation marks and citation omitted). “It is not
enough to disbelieve the defendants here; the fact-finder must believe the
plaintiff’s explanation of intentional . . . discrimination.” Love-Lane, 355 F.3d at
788. Here, as in Love-Lane, the record provides no basis by which a rational jury
could accept the plaintiff’s theory. Id.; see also Ferris, 2007 WL 2437685, at *4.
III.
For these reasons, it is ORDERED that the plaintiff’s Motion to Strike
Certain Evidence (ECF No. 80) is DENIED and the defendant’s Motion for
Summary Judgment (ECF No. 67) is GRANTED. A separate final judgment will
be entered herewith.

ENTER: January 30, 2015
/s/ James P. Jones
United States District Judge

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