Ross v. County of Franklin, Virginia

Filing 112

MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 3/27/17. (sas)

CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE, VA
FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION

MAR 2 7 2017

JUI!~.
D
CLERK
.

BY:

SUBRENNA ROSS,
Plaintiff,

v.
FRANKLIN COUNTY BOARD
OF PUBLIC WELFARE,
Defendant.

CLERK

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Civil Action No. 7:14-CV-00512
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Chief United States District Judge

'

Plaintiff Subrenna Ross filed the instant action pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S;C. § 2000e et seq., and the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. This matter is currently before the court on defendant's motion for
summary judgment. For the reasons stated, the motion will be denied in part and granted in part.

Factual and Procedural Background
The following facts are either undisputed, or, where disputed, are presented in the light
most favorable to Ross. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Plaintiff Subrenna Ross is a 50-year-old African-American woman. She has been
employed with the Franklin County Board of Public We}fare (the "Board") and Department of
S.ocial Services (the "Department") since July of 1994. After several years, Ross was promoted
to the position of self-sufficiency supervisor. She was the only African-American supervisor, and
she kept the self-sufficiency supervisor position until

December-~'

2013, when she was demoted

to self-sufficiency worker. Ross was reinstated to the position of self-sufficiency supervisor in
late 2015.

·

The Board's Human Resources Manual provides for three types of office offenses: Group
I, the least severe, Group II, and Group III, the most severe. See Administrative/Human
Resources Manual for LDSS, Docket No. 91-5 at 41. The policy sets out the various disciplinary
procedures for each type of offense. Id. at 46-4 7. Two Group II offenses within a three-year time
period will result in a written notice and termination. A Group III offense will result in
termination. ld. The supervisor may take into account relevant mitigating factors in determining
the disciplinary action to take. Id.
In April of 2011, the Board hired Deborah Powell to serve as director of the Department.
At that time, the majority of the employees were Caucasian. Powell Dep. 120:7-8, Docket No.
91-1. During Powell's tenure, many of the older workers left. Ross alleges that they were
replaced with younger workers. Ross Dep. 30:18-24, Docket No. 91-4. Powell was Ross' direct
supervisor until November 1, 2013, when the Board promoted Anita Turner to the position of
assistant director. Powell Dep. 10:23-15:17. Once Turner took this position, Turner supervised
Ross.
In March of 2013, Powell issued Ross a Group II Written Notice, suspending Ross for
four days. The Written Notice indicates that Ross directed an employee to ignore certain policies
in relation to a benefits program administered by the Department. See LDSS Written Notice
Form March 3, 2013, Docket No. 91 ...2 at 48. On October 5, 2013, Ross married a Caucasian
man. Powell attended the wedding and knew prior to the wedding that Ross' husband is
Caucasian. Ross Dep. 8:11-9:2.
On October 18, 2013, Franklin County sponsored an employee appreciation luncheon, to
which Board employees were invited. A group of employees from a unit Ross did not supervise

2

went to the luncheon, which was located off-site, leaving their unit unstaffed. When the
employees returned to the building, Ross told them that they should not have left their unit
unstaffed. Powell Dep. 40:1-16. According to Powell, there is no policy that a unit cannot leave
together, provided there is coverage in the building. Id. 39:8-16. Employees later expressed to
their supervisors that they felt that Ross had handled the situation inappropriately. Id. 44:7-11.
Ross took leave for her honeymoon in early November. At some point in time, Powell
met with the other Department supervisors. Typically, these meetings included Ross. Powell
Dep. 55:11-22. At this meeting, the supervisors informed Powell that their employees had
complained about Ross' behavior in regards to the county luncheon. Powell then instructed the
supervisors to have employees contact Powell directly with any complaints. Id. at 54:15-19.
After November 7, 2013, Powell received several complaints regarding Ross' treatment
of other employees. Id. 43:6-22. Powell initiated a formal inquiry into these complaints,
following up with the complaining employees personally. Id. 53:5-14. On November 15, 2013,
Powell suspended Ross so that she could complete the investigation. Id. 31 :6-8. During this
inquiry, Powell received information from at least ten different employees regarding Ross and
the luncheon incident. See Docket No. 91-2 at 1-25. Written emails to Powell indicate that
employees "felt like Subrenna was greatly stepping over her boundaries ... [and] was very
unprofessional." See Docket No. 92-2 at 2. Many employees expressed that they were
intimidated by Ross and asked Powell not to disclose their complaints for fear of backlash from
Ross. Id. at 5.
However, one employee, Beulah Faye Brown, stated that she was coerced to "go against
Subrenna to try to get her to lose her job." Brown Dep. 9:22-24, Docket No. 103-5. Brown
testified that Kathleen Miles, a supervisor, tried to tell Brown what to say about Ross. Id. 12:17-

3

19. Brown further testified that Miles attempted to coerce others to speak poorly about plaintiff,
but they refused to do so. Id.

14:20~23.

Defendant notes that Brown conceded that when she first

met Ross, Brown felt intimidated by her. Id.

41:1~2.

However, Brown also testified that she felt

intimidated by Ross because of the things Miles said about Ross. Id. 41 :4~24.
Thelma Doss, another employee at the Department, declared that she never experienced
issues with Ross while they worked together, nor could she recall others complaining about Ross
or feeling like they were intimidated by her. Dec. of Thelma Lane Doss, Docket No.

103~7.

Powell testified that Doss "relayed to me that she was forced to partake in [watching plaintiffs
wedding video]." Powell Dep.

50:9~16.

Doss later asserted that she does "not recall watching

Ross' wedding video ... [or] any issues surrounding a wedding video." Docket No.
African~American

103~7.

An

employee supervised by Ross testified that she had no problems with Ross.

Arlaine Bryant Dep.

6:7~8,

Docket No.

91~8.

Powell also conceded that she received no

complaints about Ross from any African~American employees. Powell Dep.

50:22~51: 1.

Ross asserts that after she returned from her honeymoon, "everything just changed." Ross
Dep. 9:22. For example, Ross testified that there was an accusation that Ross kept her door to her
office closed. Other Caucasian supervisors would keep their door closed and not hear complaints
about it. Ross Dep.

16:1~9.

Ross also testified that she heard, from another employee, Maryanna

Haines, that Brownhad called Ross an "angry black woman." Id.

119:6~20.

Ross further recalled

a conversation she had with Linda Nesbit, another Department employee, in which Nesbit asked
why Ross had been with the Department for so long without getting promoted. Ross then pointed
to her skin. Ross testified that Nesbit's response was "well, [I] thought so." Id.

120:5~22.

Finally,

Ross alleges that she was excluded from one or two supervisory meetings sometime after
September of2013. Id.

10:11~11:1

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On November 21, 2013, Powell issued a Notice of Intent to Ross. The Notice advised
Ross that Powell was considering issuing a Group III Written Notice. See Notice of Intent,
Docket No. 91-2 at 26. Ross was afforded the opportunity to respond and present her
perspective. Id. However, Ross testified that she could not respond because she did not know
what she did wrong. Ross Dep. 85:4-10. On December 3, 2013, Ross received a Group II Written
Notice and was demoted from self-sufficiency supervisor to self-sufficiency worker. See Written
Notice Dec. 3, 2013, Docket No. 91-2 at 31. The record indicates that at least one Caucasian
supervisor was terminated for violating Department policy. Kathy Miles Dep. 7:4-14, Docket
No. 91-7.
After receiving the Group II Written Notice, Ross was transferred to another building,
moved from an office to a cubicle, did not have access to her computer for approximately one to
two months, and was assigned to do Job Club. Ross contends that Job Club is typically
contracted out on a part-time basis. Ross Dep. 18:4-23. Additionally, Ross testified that Powell
complained that Ross was not working hard enough as a self-sufficiency worker, despite being
delegated only part-time responsibilities. Id.
When Ross was demoted, Turner assumed Ross' supervisory responsibilities. As assistant
director, a position she had held for only two weeks, Turner's job description included filling
vacant supervisor positions. Turner Dep. 29:23-30:13, Docket No, 91-3. Ross had applied for the
position, and alleges that she was much more qualified than Turner. For example, Ross had
worked for the Department for twenty-two years; Turner had worked there for four. Moreover,
Turner's background was in insurance-not socia1 services. Turner Dep. 7:15-8:2. After Ross

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was demoted, the self-sufficiency supervisor position was not

formally~ filled,

as the Department

has a policy that it will not fill a supervisor position while the removed employee has the
opportunity to assert his or her grievance rights. Id.
Prior to her demotion, Ross asserts that she had received positive reviews from her
supervisors. Indeed, a June 2013 Employee Performance Evaluation Form notes Powell's
satisfaction with Ross' communication abilities, and the "Review of Performance Evaluation"
notes that Subrenna was "continuing to learn and develop her leadership style," that she "has
very strong values ... and implements these in her unit," and that Ross looked to improve the
efficiency of her unit. Docket No. 103-9 at 3. The form does mention that Ross had "encountered
some personnel issues and learned the importance of following policy." Id. Additionally, as Ross
was applying to the assistant director position, she submitted letters of reference from individuals
who stated that Ross was a leader, efficient and knowledgeable, and had always provided
exceptional customer service. See Letter from Ashley Rutter, Docket No. 103-1 0; Letter from
Katrina Davis, Docket No. 103-11. Just before being demoted, Ross received the Community
Advocate of the Year Award from Work Force Investments. Ross Dep. 12: 1-9. Powell testified
that she did not consider this information about Ross' positive reviews relevant for purposes of
investigating the complaints against Ross. Powell Dep. 76:6-10. She also did not attempt to
substantiate Ross' denial of any ofthe problematic behavior. Id. 80:15-24.
On April 7, 2014, Ross filed a charge of discrimination against the Board, the
Department, and the County of Franklin with the Virginia Council on Human Rights and the
Equal Employment Opportunity Commission ("EEOC"). She received her right-to..,sue letter
from the EEOC on June 26, 2014. Ross filed her initial complaint on September 18, 2014,
alleging claims of discrimination pursuant to 42 U.S.C. § 1981, Title VII, and the ADEA. The

6

court subsequently dismissed the Department and the County of Franklin in addition to Ross'

§ 1981 claim. The case is presently before the court on the Board's motion for summary
judgment.
Standard of Review
An award of summary judgment is appropriate when "the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). When deciding whether to grant a motion for summary judgment, the court must view the
record in the light most favorable to the non-moving party, and draw all reasonable inferences in
his favor. Anderson, 477 U.S. at 255; see also Terry's Floor Fashions, Inc. v.Burlington Indus.,
Inc., 763 F.2d 604, 610 (4th Cir. 1985). For a party's evidence to raise a genuine issue of
material fact to avoid summary judgment, it must be "such that a reasonable jury could return a
verdict for the non-moving party." Anderson, 477 U.S. at 248-49. "Conclusory or speculative
allegations do not suffice, nor does a 'mere scintilla of evidence' in support of the [nonmovant's] case." Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002)
(quoting Phillips v. CSX Trarisp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
Discussion
I. Title VII Claim
Ross alleges that she was demoted because of her race and that she was singled out
because she was the only African-American supervisor. Title VII prohibits an employer from
"discriminat[ing] against any of [its] employees ... with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual's race .... " 42 U.S.C.
§ 2000e-2(a). To survive summary judgment in a race discrimination case, the plaintiff must

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present sufficient evidence from which a jury could conclude that racial discrimination was one
of the employer's motives in taking the challenged adverse employment action. Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013). The plaintiff may do this by presenting
direct or circumstantial evidence of racial discrimination, or through the framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
The McDonnell Douglas framework is comprised of three steps: (1) the plaintiff must
first establish a prima facie case of discrimination; (2) the burden of production then shifts to the
employer to articulate a non-discriminatory reason for the adverse action; and (3) the burden then
shifts back to the plaintiff to prove by a preponderance of the evidence that the stated reason for
the adverse employment action is pretext for intentional discrimination. Guessous v. Fairview
Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (citing Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-56 (1983)). "[T]he plaintiffs burden to show pretext 'merges with
the plaintiffs ultimate burden of persuading the court that she was a victim of intentional
discrimination."' Guessous, 828 F.3d at 217 (citing Burdine, 450 U.S. at 256)). Accordingly, a
plaintiff can prove pretext by showing that the defendant's "explanation is unworthy of credence
or by offering other forms of circumstantial evidence sufficiently probative of discrimination."
Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 148 (2000) ("[A] plaintiffs prima facie case, combined with
sufficient evidence to find that the employer's asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated.").
Under the McDonnell Douglas framework, the plaintiff establishes a prima facie case by
demonstrating that "(1) she is a member of a protected class; (2) she suffered adverse
employment action; (3) she was performing her job duties at a level that met her employer's

8

legitimate expectations at the time of the adverse employment action; and (4) the position
remained open or was filled by similarly qualified applicants outside the protected class." Hill v.
Lockheed Logistics Mgmt, Inc., 354 F.3d 277, 285 (4th Cir. 2004). Here, defendant contends
that Ross cannot prove the third element of her prima facie case. Defendant further contends that
plaintiffs prima facie case requires that she prove that she was subject to "different treatment
from similarly situated employees outside the protected class" rather than that the position
remained open or was filled by an applicant outside the protected class. Coleman v. Md. Court of
Appeals, 626 F.3d 187 (4th Cir. 2010). Defendant argues that plaintiff cannot meet this last
element
As to the third element, defendant presents evidence demonstrating that plaintiff was
placed on a performance improvement plan ("PIP") in March of 2013 after receiving a Group II
Written Notice. As part of the plan, she received supplemental training on managing her
emotions, communication, and conflict management Ross Dep. 61:7-62:9. In November of
2013, after receiving complaints about Ross' behavior, Powell issued Ross a second Group II
Written Notice. The Board's written policy provides for demotion or termination if an employee
receives two Group II Written Notices within three years. See Docket No. 91-5 at 46-47.
Defendant also notes that Ross acknowledged that Powell received these complaints, and if the
complaints were true, they would be grounds for disciplinary action. Ross Dep. 36:7-11; 53:2454:7.
Ross argues that there is a genuine Issue of material fact as to whether she was
performing her job adequately. She had been with the Department for several years and had
previously received a promotion. She believes that this is sufficient to raise an inference that she

9

was performing her job adequately.

See,~,

Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 673

(1st Cir. 1996) (finding that thirty years with the employer and accompanying pay raises and
promotions supported an inference that an employee was performing his job adequately enough
to meet an employer's needs, "even when the evidence did not extend all the way to the time of
discharge"). Ross also notes that her burden here is not onerous. See Murry v. Jacobs Tech., Inc.,
No. 1:10-CV-771, 2012 U.S. Dist. LEXIS 48169, at *33 (M.D.N.C. Apr. 5, 2012) ("[T]he Fourth
Circuit has cautioned against the 'danger' that courts might apply the 'legitimate expectations'
element of the prima facie case 'too strictly."') (citing Warch v. Ohio Cas. Ins. Co., 435 F.3d
510, 516-17 (4th Cir. 2006)).
In further support of her case, Ross forecasts evidence that several individuals
characterized her as a competent supervisor. See Letter from Ashley Rutter, October 18, 2013;
Letter from Katrina Davis. Additionally, just prior to her demotion, Ross was a recipient of an
advocacy award. Ross Dep. 12:1-14. Ross also argues that Brown's testimony demonstrates that
the complaints against Ross were coerced and part of an effort to remove Ross from her position.
See Brown Dep. at 9:1-19. Moreover, Powell only investigated the complaints against Ross, not
the positive things others had to say. Powell Dep. 76:6-10.
Regarding the last prong of plaintiffs prima facie case, defendant argues that plaintiff
cannot demonstrate a genuine issue of material fact as to whether the Board treated her
differently than similarly situated employees outside of her protected class. Ross asserts that she
need only demonstrate that "the position remained open or was filled by similarly qualified
applicants outside the protected class." Hill, 354 F.3d at285. Here, Turner, a Caucasian woman,
assumed Ross' supervisory responsibilities. Ross' position, ultimately, remained unfilled until
Ross was reinstated. Powell Dep. 93:10-12.

10

Furthermore, Ross argues that she has produced sufficient evidence to survive summary
judgment even if she has to prove differential treatment. For example, Ross testified, "I'm the
only black supervisor here, and ... we have other workers that have supervisors that don't do
anything and nobody says nothing, but when it comes to me, everybody has something to say."
Ross Dep. 77:22-78:6. She explained that Caucasian supervisors could keep their office doors
closed, but if Ross did so, she would be told she could not keep her door closed. Id. 16: 1-9.
Additionally, Ross testified that at least one other worker, Nesbit, agreed with Ross that she had
not been promoted to supervisor sooner because of her skin color. Id. 120:5-22. Ross also heard
from another employee that Brown had called Ross an "angry black woman." Id. 119:6-20.
Finally, Ross claims she was excluded from supervisory meetings, but acknowledges that those
at the meetings had no decisionmaking authority over Ross' employment. Id. 13:16-14:13.
However, at a meeting of supervisors of which Ross was not a part, Powell learned of the
complaints lodged against plaintiff and started her investigation. Powell Dep. 54:15-19.
From the evidence Ross has forecast, the court believes there remains a genuine issue of
material fact as to whether plaintiff has established a prima facie case. Ross has presented
evidence that she was performing her job satisfactorily, that Powell knew of this evidence but
ignored it, that the complaints against her were both solicited and coerced, and that her position
remained unfilled. Similarly, from her testimony, a reasonable juror could understand that Ross
was treated differently than individuals outside of her class. This testimony is further bolstered
by the facts that Ross was the only African-American supervisor, and that the adverse
employment action occurred shortly after she returned from her honeymoon with her Caucasian
husband. Ross Dep. 29:4-5. Although defendant may dispute plaintiffs version of events at trial,
the court must credit plaintiffs testimony at summary judgment. See Croy v. Blue Ridge Bread,

11

Inc., No. 3:12CV00034, 2013 U.S. Dist. LEXIS 98734, at *14 (W.D. Va. July 15, 2013)
(Conrad, J.). Accordingly, plaintiff has demonstrated a genuine issue of material fact as to her
prima facie showing of racial discrimination.
Nevertheless, the court must determine whether defendant is entitled to judgment as a
matter of law under the second and third prongs of the McDonnell Douglas burden-shifting
analysis. Here, the Board asserts that it has met its burden of producing evidence of a legitimate,
non-discriminatory reason for demoting Ross. After a formal investigation into the written and
in-person complaints about Ross from at least ten individuals, plaintiff received her second
Group II Written Notice within a three-year period. See LDSS Written Notice Form March 3,
2013, Docket No. 91-2 at 48; LDSS Written Notice Dec. 3, 2013, Docket No. 91-2 at 3 L
Typically, the issuance of two Group II Written Notices within a three-year period results in
termination. See Docket No. 91-5 at 46-47. Furthermore, defendant argues that Turner never
replaced Ross. Theposition remained open because it is the Board's policy not to fill a position
while the removed individual still has grievance rights, which plaintiff was exercising. Turner
Dep. 29:23-30:12. Powell also testified that Ross was on leave for one of the supervisory
meetings from which plaintiff alleges she was excluded. Powell Dep. at 46:6-21.
The court believes that defendants have met their burden of articulating a legitimate, nondiscriminatory reason for the adverse employment action: other employees had complained
about plaintiff, these complaints were the basis for plaintiffs second disciplinary notice, and
plaintiffs position remained unfilled because of Department grievance policies. Upon this
showing, the burden shifts back to plaintiff to demonstrate that the proffered reason for the
adverse employment action is a pretext for discrimination. However, in analyzing the third prong

12

of the McDonnell Douglas framework, the court takes heed of the Fourth Circuit's recent
reminder that there is nothing "in the McDonnell Douglas burden-shifting framework that says 'a
plaintiff must always introduce additional, independent evidence of discrimination.'" Guessous,
828 F.3d at 220 (citing Reeves, 530 U.S. at 149). "To the extent that the evidence supporting a
plaintiff's prima facie case also undermines the employer's non-retaliatory justification, that
evidence may be called upon by the trier of fact in determining whether or not the proffered
justification is pretextual." Id.
In this case, the court recognizes that much of plaintiff's evidence is her own,
Uncorroborated testimony. It is plaintiff who alleges that she was called an "angry black
woman." The only source for the conversation with Nesbit about plaintiff's long tenure at the
Department without promotion is plaintiff herself. However, as the non-movant, the court is
constrained to accept plaintiff's testimony as true. See Anderson, 477 U.S. at 255.
Furthermore, plaintiff does forecast evidence outside of her own testimony, For example,
plaintiff's demotion occurred within temporal proximity to her wedding to a Caucasian man, of
which Powell testified certain employees complained Ross made them watch a video. Powell
Dep. 50:9-16. However, one employee who allegedly complained about being forced to watch
the video also declared that she did not watch the video. Dec. of Thelma Lane Doss. While
defendant produces evidence suggesting that plaintiff's supervisor knew that plaintiff's spouse is
Caucasian long before the adverse action and that Powell has two mixed-race children, whether
such facts are "not indicative of animus is of no moment [it] a reasonable jury would . . . be
entitled to a different conclusion." Guessous, 828 F.3d at 221.
Similarly, an employee testified that she was coerced by a supervisor into complaining
about Ross, and Powell told the supervisors to have complaining employees, none of whom were

13

of the same race as plaintiff, speak to Powell directly. Brown Dep. 11 :21-23; Powell Dep. 53:514. Powell also conceded that she ignored information about Ross that was positive. Powell Dep.
76:1-10. Like with plaintiffs prima facie case, this evidence is compounded by the fact that
plaintiff was the only African-American supervisor. Ross Dep. 29:4-5.
At this stage, Ross' "burden is only 'to produce sufficient evidence upon which one could
find that the protected trait ... actually motivated the employer's decision."' Guessous, 828 F.3d
at 221 (citing Hill, 354 F.3d at 286). Moreover, unlike plaintiffs age discrimination claim, she
need not demonstrate that race was the "but for" cause of the adverse employment action. See id.
at 216 ("For status-based discrimination claims, the employee must 'show that the motive to
discriminate was one of the employer's motives, even if the employer also had other, lawful
motives that were causative in the employer's decision."') (citing Nassar, 133 S. Ct. at 2523). In
sum, the court believes that plaintiff has demonstrated a genuine issue of material fact as to
whether the Board's proffered explanation for the demotion "is unworthy of credence" or
otherwise probative of a discriminatory motive. Plaintiff is entitled to have a jury determine
whether race motivated the decision to demote her. Accordingly, the court will deny defendant's
motion for summary judgment as to the Title VII claim.

II.

Age Discrimination in Employment Act Claim
Ross also claims that the Board discriminated against her because of her age, in violation

of the AD EA. To establish a prima facie case of age discrimination, a plaintiff must demonstrate
(1) that she is a member of a protected class; (2) that she suffered an adverse employment action;

(3) that she was performing her job in a satisfactory manner at the time of the action; and (4) that
the adverse employment action occurred under circumstances that raise a reasonable inference of
unlawful age discrimination. See Hill, 354 F.3d at 285 (4th Cir. 2004). Oftentimes, an inference

14

of discrimination arises when plaintiff is replaced by someone substantially younger. See
O'Conner v. Consolidated Coin Caterers, 517 U.S. 308, 312-13 (1996). There is no specific
number that makes an individual "substantially younger."
Here, even if there remains a genuine issue of material fact as to whether plaintiff was
performing her job in a satisfactory manner, the only evidence that the demotion occurred under·
circumstances that raise an inference of unlawful age discrimination is Ross' own speculative
and conclusory testimony that more seasoned workers left and were replaced by younger
workers, and that she, herself, was replaced by someone substantially younger. First, Turner,
Ross' alleged replacement, was three years younger, and the court, does not believe a reasonable
jury would find this difference substantial. See Gibbard v. Potter, No. 5:05CV44, 2009 U.S. Dist.
LEXIS 4031, at *19 (W.D.N.C. Jan. 20, 2009) (finding three- and four-year age differences
insubstantial); Robinson v. Greenwood Cnty., No. 8:10-02192, 2011 U.S. Dist. LEXIS 145031,
at *19 (D.S.C. Nciv. 22, 2011) ("Moreover, ... plaintiffs ... age claim[] [is] further undermined
by the fact that [her replacement], like the plaintiff, . . . is African-American and is
insignificantly younger (three years)."). Second, nothing corroborates Ross' understanding that
"

older workers were being replaced by younger individuals under suspect circumstances. When
asked about the demographics at the Department, Powell postulated, "I guess some of the more
senior people that were here and had spent their career here and have retired, but other than that,
there has not been any significant changes." Powell Dep. 12p:20-24. Nor does Ross provide a
single specific example of other older workers being replaced by younger individuals. Simply
put, plaintiff has not met her burden in demonstrating that there is a genuine issue of material
fact as to her prima facie case. of age discrimination. The court will grant defendant's motion for
summary judgment as to the ADEA claim.

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Conclusion
For the reasons stated, the court will deny in part and grant in part defendant's motion for
summary judgment. The Clerk is directed to send copies of this memorandum opinion and the
accompanying order to the defendant and all counsel of record.
DATED: This :;\ 1 l1ay of March, 2017.

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