Lasure v. Wal-Mart Stores, Inc. et al
Filing
73
MEMORANDUM OPINION AND ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE CASE WITH PREJUDICE: It is ORDERED that Defendant's 48 Motion for Summary Judgment is hereby GRANTED and this case is DISMISSED WITH PREJUDICE. The Clerk shall enter a separate judgment order. This case is removed from the active docket of the Court. Signed by District Judge Irene M. Keeley on 12/11/15. (cnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CAROL LASURE,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:14CV127
(Judge Keeley)
SAM’S EAST, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
Pending before the Court is the motion for summary judgment
filed by the defendant, Sam’s East, Inc. (“Sam’s Club”) (Dkt. No.
48).1
For the reasons that follow, the Court GRANTS Sam’s Club’s
motion and DISMISSES the case WITH PREJUDICE.
BACKGROUND
This case concerns the employment and termination of plaintiff
Carol Lasure (“Lasure”), who worked as a club manager for Sam’s
Club.
The questions presented on summary judgment include:
1)
Whether Lasure would have been fired were it not for her
protected status as a person over the age of 40;
2)
Whether Sam’s Club had a legitimate, non-discriminatory
reason for Lasure’s termination; and,
1
Lasure originally named Wal-Mart Stores, Inc. and Wal-Mart
Associates, Inc., as defendants. She substituted Sam’s Club as the
proper defendant on October 31, 2014 (Dkt. No. 20), and dismissed
the Wal-Mart defendants on August 17, 2015 (Dkt. No. 46).
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
3)
Whether
Lasure
can
establish
that
Sam’s
Club’s
legitimate, non-discriminatory reason for terminating her
was mere pretext.
I.
Factual Background
As it must, the Court reviews all evidence “in the light most
favorable” to Lasure, the non-moving party.
Walker v. Mod-U-Kraf
Homes, LLC, 775 F.3d 202, 207 (4th Cir. 2014).
A.
The 2011 Reorganization
Lasure began working for Sam’s Club in 1991, and advanced
through the ranks until she was promoted to the position of club
manager at the Morgantown, West Virginia, store (Dkt. No. 48-1 at
2).
Lasure was supervised by Market Manager Michael Miller (“Mike
Miller”) until March, 2011, when Sam’s Club reorganized (Dkt. No.
48-3 at 2).
At that time, Market Manager Charles Miller (“Chuck
Miller”), the brother of Mike Miller, acquired the West Virginia
market, including Lasure’s store.
Jeffrey
Lencke
(“Lencke”)
oversaw
Id. at 3.
Lasure’s
Regional Manager
club
after
the
reorganization (Dkt. No. 48-8 at 3).
Mike Miller usually gave Lasure solid performance ratings,
although he indicated in her fiscal year 2011 mid-year evaluation
that
she
should
improve
her
associate
2
engagement
skills
and
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
increase sales of “Plus” memberships (Dkt. No. 48-2 at 2).2
March,
2011,
Chuck
Miller
gave
Lasure
a
performance
In
review
completed by Mike Miller, who had overseen Lasure for much of that
fiscal year (Dkt. No. 48-1 at 12).
While Mike Miller generally
rated Lasure as a solid performer, he noted that she needed to
develop associate engagement, maintain consistent standards around
the holidays, maintain consistent fresh execution, develop the Plus
membership program, and improve associate turnover (Dkt. No. 48-4).
During the evaluation meeting, Chuck Miller did not discuss
the
review
completed
by
his
brother
(Dkt.
No.
48-1
at
14).
Instead, he told Lasure that she didn’t know how to treat or talk
to people, and that it was “her way or the high way.”
Id.
Lasure
left “completely humiliated,” feeling like she was “no good at
anything.” Id.
During a follow-up telephone call in June or July,
2011, Chuck Miller told Lasure that he “would imagine, at your age
and with the tenure with the company that you have, that you can
take care of yourself should something happen; that you are
financially set.”
Id. at 16.
that she was “doomed.”
From that point on, Lasure believed
Id.
2
A “Plus” membership is the highest tier membership
available, affording members the most benefits (Dkt. No. 48-1 at
9).
3
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
B.
The Mid-Atlantic Region Meeting
In the Spring, 2011, Lencke held a meeting for management
associates from the Mid-Atlantic Region, which included Lasure’s
club, in Virginia Beach, Virginia (“the MAR Meeting”)(Dkt. No. 485).
Market
Managers
Chuck
Miller,
Mike
Miller,
and
Janice
Trelewicz (“Trelewicz”) attended, as did Market Asset Protection
Manager David Martin (“Martin”), and Regional Human Resources
Manager
Denise
Gilreath
(“Gilreath”).
Id.
Club
managers,
including Lasure, did not attend the MAR Meeting.
During that meeting, Lencke led a discussion on succession
planning and club managers’ performance (Dkt. No. 48-3 at 6).
Sam’s Club commonly employs a nine-quadrant grid during such
exercises, with each club manager ranked on the vertical axis for
performance (exceeds expectations, meets expectations, and below
expectations/in the job for less than 6 months) (Dkt. No. 48-6).
On the horizontal axis, club managers are ranked for growth
potential (high, solid, or low).
Id.
Lasure’s name was included
in quadrant 8 of the grid, which indicates the intersection of
performance that “meets expectations” and “low” growth potential.
Id.
Chuck Miller, Mike Miller, Lencke, Gilreath, and Trelewicz
testified that Lencke did not specifically identify managers,
4
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
including Lasure, for termination during the MAR Meeting (Dkt. No.
48-3 at 7; Dkt. No. 48-7 at 3; Dkt. No. 48-8 at 4; Dkt. No. 48-9 at
2; Dkt. No. 52 at 4).
Martin recalled differently.
On July 9, 2011, Martin called Lasure’s personal cell phone,
describing Lencke’s succession planning exercise during the MAR
Meeting (Dkt. No. 64-12 at 2, 3).
Martin informed Lasure that
Lencke had singled her out as one of three store managers he wanted
to fire; Martin told her that he would send her an “anonymous”
letter that she could use in a court of law.
Id.
In late July,
Lasure received an unsigned letter that matched the description of
the letter Martin had offered to send, with disguised handwriting
and misspelled words.
Id.
The text of the letter reads as
follows:
Concerned for you
In March of 2011 in Virginia Beach [sic] Virginia a
meeting was held for the MAR Team, Market Teams from
49,33 plus Jeff Hale, hosted by Jeff Lenke [sic]. During
the course of the meeting both Carol Lasure and Brenda
Ferrell were singled out as club managers that needed to
go.3 This was done in an open forum. Jeff Lenke [sic]
then stated to everyone in attendance that this was not
to be discussed outside of this meeting, he repeated it
3
Club Manager Brenda Ferrell later voluntarily resigned from
her position as club manager (Dkt. No. 64-3 at 16). Sam’s Club
believed that Ferrell resigned to live closer to her ailing mother
in Tennessee. Id.
5
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
several time [sic].
Anyone under oath would have to
swear that this took place.
(Dkt. No. 60-3).
The envelope of the letter, which was postmarked
in Charleston, West Virginia, misspelled Lasure’s last name (Dkt.
No. 60-4).
Martin, who suffers from seizures that limit his
memory, has no recollection of Lencke’s statements, of speaking
with Lasure on the telephone, or of sending her any letter (Dkt.
No. 60-1 at 5-7, 14-16).4
Importantly, Lasure admits that Martin
never told her that Lencke targeted her or any other manager based
on age (Dkt. No. 48-1 at 26; Dkt. No. 61-5 at 37).
C.
Lasure’s PIP and Coachings
On June 3, 2011, Chuck Miller placed Lasure on a performance
improvement plan (“PIP”), which is a tool Sam’s Club uses to
provide associates with a formal opportunity to understand specific
improvements expected of them (Dkt. No. 48-10).
PIPs, which
include follow-up dates to track improvement, are not disciplinary
events at Sam’s Club.
Id.
Lasure’s PIP reflects that she was not
4
The parties dispute whether Lasure’s account of Martin’s
telephone call and letter is admissible under the Federal Rules of
Evidence; this dispute is irrelevant to the outcome of the case,
however.
Even when the Court considers Martin’s statement and
letter, Lasure has failed to produce sufficient evidence to
convince a reasonable juror that Sam’s Club terminated her due to
her age.
6
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
meeting Chuck Miller’s expectations in the following areas:
(1)
respect for the individual; (2) standards and service guide; and
(3) developing talent. Id. During Chuck Miller’s first follow-up,
he noted that development was still needed, but that he expected
Lasure to be up to speed by his second follow-up (Dkt. No. 48-11).
On multiple occasions throughout the summer of 2011, Chuck
Miller and Trelewicz, a fellow market manager who was filling in
for Chuck Miller while he was on medical leave, evaluated Lasure’s
club through routine walk-throughs (Dkt. No. 48-7 at 4).
The
manager conducting the walk-through gives the club an overall
rating of green, yellow, or red, with red being the lowest possible
rating.
Id.
On August 5, August 16, and August 23, 2011,
Trelewicz rated Lasure’s club as “red”; these visits resulted in a
written coaching on September 22, 2011, for falling below company
standards (Dkt. No. 48-12).
On November 10, 2011, Chuck Miller
issued a second written coaching to Lasure for “issues causing
inconsistency with club standards,” including staffing, bakery, and
Plus performance (Dkt. No. 48-13).
Shortly after Lasure’s second coaching, she worked a 9 A.M. to
7 P.M. shift instead of an opening shift on Black Friday (Dkt. No.
48-14).
According to Sam’s Club’s 2011 “Day After Thanksgiving
7
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
Event” guide, the Club Manager was to work a shift beginning at
3:00 A.M. (Dkt. No. 48-20 at 4).
Lasure’s failure to work the
opening shift resulted in Shannon Athey (“Athey”), Market Human
Resources
Manager,
giving
Lasure
her
third
written
coaching
(referred to as a “Decision-Making Day” at the time) (Dkt. No. 4814).
Under Sam’s Club policy, another coaching over the following
year would result in Lasure’s termination.
48-18.
Id.; see also Dkt. No.
On January 27, 2012, after Lasure’s Decision-Making Day
coaching, Gilreath estimated in a succession planning e-mail that
Lasure’s position would be vacant in the second quarter of 2012
(Dkt. No. 64-6 at 2).
D.
Lasure’s Complaints
In Summer, 2011, Lasure utilized Sam’s Club’s open door policy
to complain about Chuck Miller.
The open door policy means that
employees can “talk with anyone in the company, including the
president, without fear of retaliation” (Dkt. No. 48-1 at 3).
Lasure called and then e-mailed Gilreath, complaining that Chuck
Miller was “personally attacking” her and her management team,
among other issues (Dkt. No. 48-15). Lasure also informed Gilreath
that Chuck Miller gave an associate in Lasure’s store his personal
e-mail address and cell phone number, and assured the associate
8
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
that Lasure would be gone within two weeks (Dkt. No. 63-2 at 4142). Gilreath never investigated this allegation (Dkt. No. 64-2 at
98-99).
On August 30, 2011, Lasure e-mailed Human Resources Manager
Andrea Walker, Trelewicz, Lencke, and Lance de la Rosa (“de la
Rosa”), Lencke’s boss, complaining that the market team in her
district “has never helped as needed” (Dkt. No. 63-5 at 1).
Trelewicz
asked
Lasure
to
call
her
to
discuss
the
issue,
admonishing Lasure for engaging in that type of conversation
through e-mail.
Id.
Although Trelewicz believed Lasure was using
the open door policy, she did not pursue Lasure’s concerns with an
investigation (Dkt. No. 63-8 at 18-22; Dkt. No. 63-2 at 39).
Lasure also utilized the open door policy to call Matt Walters
(“Walters”), a Human Resources Manager in the Pittsburgh market
(Dkt. No. 48-18 at 19).
Although Walters did not oversee Lasure’s
store, Lasure “respected him very much” and knew he would give her
an “honest answer.” Id. Walters informed Lasure that Chuck Miller
could be difficult to work with, and was very different from his
brother.
Id. at 20.
Although Lasure attempted to figure out why
Chuck Miller was treating her disrespectfully, she never told
Walters that she believed the treatment was based on her age.
9
Id.
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
On the day of Lasure’s Decision-Day coaching, she again
utilized the open door policy by calling the home office (Dkt. No.
48-1 at 29).
She “asked to speak to whoever was in charge of human
resources for the company at that time,” and spoke to an assistant,
Bill, whose last name is unknown.
Id. at 29.
Bill informed Lasure
that Sam’s Club consistently coached associates who failed to work
the proper shift on Black Friday.
Id.
Although Lasure told Bill
that she felt that she was being targeted, she never mentioned any
age-related animus.
E.
Id. at 30; Dkt. No. 72-1 at 8-9.
The Open Door Investigation
In Summer, 2012, Chuck Miller and Athey began investigating
Lasure
after
several
associates
complained
that
Lasure
had
retaliated against them for using the open door policy (Dkt. No. 52
at 3; Dkt. No. 70-1 at 2; Dkt. No. 64-2 at 35).
At one point,
Gilreath took over Chuck Miller’s investigation (Dkt. No. 52 at 3).
Lasure called Gilreath to complain about Chuck Miller, following
which Gilreath visited Lasure’s store (Dkt. No. 48-1 at 4).
Although Lasure initially believed that Gilreath was visiting to
investigate her open door complaint, Gilreath was actually visiting
to investigate several open door complaints made by the associates
regarding Lasure.
Id. at 4, 28; Dkt. No. 64-12 at 23.
10
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
During Gilreath’s investigation, she obtained many employee
statements.
Associates claimed that Lasure had threatened their
jobs if they failed to increase sales of Plus memberships, had
stated that she would threaten their jobs when hers was threatened,
and had warned them not to throw her under the bus (Dkt. No. 4816).
Some associates felt that Lasure abused her power, and
retaliated against them for using the open door policy to complain
about her.
Id.
On the other hand, associate Amanda Bright
reported that the market team was “out to get” Lasure, and that
“nothing is ever good enough” for the market team (Dkt. No. 64-2 at
94; Dkt. No. 64-10 at 1).
Longtime associate Albert Hill backed
Lasure “100%,” and associate Linda Robinson told Gilreath that
Lasure was the best manager she had ever had in her career at Sam’s
Club (Dkt. No. 64-7 at 1-3).
In her investigation report, Gilreath found that the following
allegations were substantiated: (1) that Lasure treated associates
who
used
the
open
door
policy
differently;
(2)
that
Lasure
intimidated associates; (3) that Lasure placed undue pressure on
associates by sharing her coaching situation; and, (4) that Lasure
was unfair and inconsistent with policy administration (Dkt. No.
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
48-17).
Gilreath recommended Lasure’s termination because she had
already received three coachings.5
F.
Id. at 8.
Lasure’s Termination
It is undisputed that Lasure was an at-will employee of Sam’s
Club (Dkt. No. 48-1 at 2).
who
actually
ordered
Although the record is unclear as to
Lasure’s
termination,
she
contends
that
Lencke, age 39, and Trelewicz, age 36, were responsible (Dkt. No.
70 at 6-7; Dkt. No. 65-9 at 1).
Lasure was 57 years old at the
time of her termination.
Lencke testified that regional managers like himself did not
make
decisions
about
firing
club
managers;
rather,
district
managers like Chuck Miller run their district (Dkt. No. 63-2 at
12).6
Lencke, however, did approve Chuck Miller’s request to move
forward with written coaching of Lasure on November 1, 2011 (Dkt.
5
Pursuant to Sam’s Club policy, any associate who already
received three coachings within the last year whose job performance
“warrants a level of coaching” “will be subject to termination.”
(Dkt. No. 48-18 at 1).
6
Lencke was later asked to resign following improper behavior
during an investigation (Dkt. No. 65-8 at 6). Lasure attempts to
argue that she was treated differently than Lencke, who was younger
than her, because he was given the opportunity to resign rather
than face termination (Dkt. No. 70 at 44). Lencke, however, was
two job grades above Lasure, and fired by different decision
makers, making him an improper comparator to Lasure (Dkt. No. 643). Monk v. Potter, 723 F. Supp. 2d 860, 877 (E.D. Va. 2010).
12
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
No. 63-19).
During Lencke’s deposition, the following exchange
occurred regarding his authority to fire Lasure:
Q: Did you decide to terminate Carol Lasure?
A: No.
Q: Who decided to terminate Carol Lasure?
A: To be honest with you, I can’t even tell you who
exactly because I was informed just a couple days before
it was going to happen by Denise Gilreath that the
investigation had concluded and that there was
overwhelming evidence . . . .
(Dkt. No. 63-2 at 15).
Lencke recalled that Lasure’s termination
“had to be approved by Lance [de la Rosa] and by Todd Harbaugh”
(Dkt. No. 63-2 at 16).7
Lencke concluded that Lasure should be
fired only after he saw Gilreath’s investigation report (Dkt. No.
63-2 at 18).
Gilreath testified that she had recommended Lasure’s
termination, but that Chuck Miller had made the ultimate decision
(Dkt. No. 65-2 at 39, 40).
Contrary to Gilreath and Lencke’s testimony, Chuck Miller
testified that Lasure’s termination “wasn’t up to [him] to approve”
(Dkt. No. 63-16 at 45).
According to Chuck Miller, a group of
people, including Lencke, made the decision to fire Lasure.
7
Id.
De la Rosa was 47 at the time of Lasure’s termination (Dkt.
No. 65-9 at 1).
Sam’s Club contends that de la Rosa had no
involvement in the decision to discharge Lasure (Dkt. No. 65-5 at
3).
13
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
On
July
6,
2012,
Chuck
Miller
informed
Lasure
of
her
termination and performed an exit interview (Dkt. No. 64-16 at 24,
49-50).
Lasure was replaced by Misty Ulderich, who was 35 years
old at the time (Dkt. No. 64-12 at 24; Dkt. No. 65-7 at 1; Dkt. No.
65-9).
Before Lasure’s termination she began seeing a counselor and
a psychiatrist to deal with work-related stress (Dkt. No. 61-5 at
25-26).
In August, 2012, after her termination, Lasure began
experiencing chest pain and went to the hospital, fearing that she
was having a heart attack.
Id. at 27.
In September, 2012, Lasure
advised psychologist Tina Yost that she felt like she had been
targeted because she was nearing retirement age (Dkt. No. 61-6 at
1).
II.
Procedural Background
Lasure filed suit in the Circuit Court of Monongalia County,
West Virginia, on July 1, 2013 (Dkt. No. 1 at 1).
Her complaint
included claims for disability discrimination, age discrimination,
and retaliation arising under the West Virginia Human Rights Act of
1967, W. Va. Code § 5-11-1 et seq. (West 2012).
2015,
Lasure
voluntarily
dismissed
Count
One,
On August 17,
her
disability
discrimination claim (Dkt. No. 46 at 1). On September 11, 2015, in
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
her response to Sam’s Club’s motion for summary judgment, Lasure
agreed to dismiss Count Three, her retaliation claim (Dkt. No. 70
at 5).
The Court therefore DISMISSES Count Three of Lasure’s
complaint (Dkt. No. 1-1 at 19).
On August 17, 2015, Sam’s Club filed a motion for summary
judgment, arguing that Lasure failed to present any evidence of a
nexus between her termination and her age (Dkt. No. 49).
Lasure
opposed the motion on September 11, 2015, contending that her
termination was the culmination of a long-standing scheme to fire
her fueled by age-related animus (Dkt. No. 70). Sam’s Club replied
on September 23, 2015, reiterating that Lasure (1) cannot establish
a
prima
facie
demonstrate
the
case
Sam’s
of
age
Club’s
discrimination,
reasons
to
and
(2)
terminate
cannot
her
were
pretextual (Dkt. No. 72). The motion is now fully briefed and ripe
for disposition.
STANDARD OF REVIEW
Summary
documents,
judgment
is
electronically
declarations,
stipulations
appropriate
stored
.
.
where
the
information,
.,
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
a matter of law.”
Fed R. Civ. P. 56(c)(1)(A), (a).
When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the non-moving party. Walker, 775
F.3d at 207.
determining
The Court must avoid weighing the evidence or
the
truth
and
limit
its
inquiry
solely
to
a
determination of whether genuine issues of triable fact exist.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court
of
the
basis
for
the
motion
and
nonexistence of genuine issues of fact.
477 U.S. 317, 323 (1986).
of
establishing
the
Celotex Corp. v. Catrett,
Once the moving party has made the
necessary showing, the nonmoving party “must set forth specific
facts showing that there is a genuine issue for trial.”
Anderson,
477 U.S. at 256 (internal quotation marks and citation omitted).
The “mere existence of a scintilla of evidence” favoring the
nonmoving party will not prevent the entry of summary judgment; the
evidence
must
be
such
that
a
rational
reasonably find for the nonmoving party.
trier
of
fact
could
Id. at 248–52.
APPLICABLE LAW
The West Virginia Human Rights Act of 1967 (“the WVHRA”),
prohibits employers from discriminating against any individual with
16
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MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
respect
to
“compensation,
privileges of employment.”
hire,
tenure,
terms,
conditions
or
W. Va. Code § 5-11-9(c) (West 2012).
Discrimination “means to exclude from, or fail or refuse to extend
to, a person equal opportunities because of . . . age. . . ,” which
is defined as “the age of forty or above.”
3(h), (k) (West 2012).
W. Va. Code §§ 5-11-
Discrimination claims brought under the
WVHRA are governed by the burden-shifting framework of Title VII of
the Civil Rights Act of 1964, as set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973).
See Shepherdstown
Volunteer Fire Dep’t v. State ex rel. State of W. Va. Human Rights
Comm’n, 309 S.E.2d 342, 352 (W. Va. 1983) (reaffirming use of the
McDonnell Douglas standard in West Virginia).
A plaintiff must establish the following to set forth a prima
facie case of impermissible employment discrimination:
(1) she is
a member of a protected class; (2) the employer made an adverse
employment decision affecting her; and (3) but for her protected
status, the employer would not have made the adverse decision.
Syl. pt. 3, Conaway v. E. Associated Coal Corp., 358 S.E.2d 423,
429 (W. Va. 1986).
In establishing the third element of the prima
facie case, the plaintiff must “show some evidence which would
sufficiently link the employer’s decision and the plaintiff’s
17
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1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
status as a member of a protected class so as to give rise to an
inference that the employment decision was based on an illegal
discriminatory criterion.”
Id. at 429-30.
The plaintiff can
establish this link by any of the following methods:
(1) an
admission from the employer; (2) unequal or disparate treatment
between
members
of
the
protected
class
and
others;
(3)
the
elimination of legitimate reasons for the decision; and, (4)
statistics showing that members of the protected class receive
substantially worse treatment than others.
Id. at 430.
Once the plaintiff establishes a prima facie case, the burden
shifts to the employer to advance a non-discriminatory reason for
the plaintiff’s dismissal.
Id.
“The reason need not be a
particularly good one.
It need not be one which the judge or jury
would have acted upon.
The reason can be any other reason except
that the plaintiff was a member of a protected class.”
Id.
After the employer explains its decision, the employee may
rebut the employer’s legitimate, non-discriminatory reason.
Id.
The burden then shifts back to the plaintiff to prove that the
facially legitimate reason given by the employer for the employment
decision was merely a pretext for a discriminatory motive. Eddy v.
Biddle, No. 1:11CV137, 2013 WL 66929, at *6 (N.D.W. Va. Jan. 4,
18
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
2013) (quoting Ford Motor Credit Co. v. W. Va. Human Rights Comm’n,
696 S.E.2d 282, 293 (W. Va. 2010)) (internal quotation marks
omitted). At that point, “the issue of whether the plaintiff [has]
established a prima facie case . . . [becomes] irrelevant.” Skaggs
v. Elk Run Coal Co., Inc., 479 S.E.2d 561, 583 (W. Va. 1996).
“To
get to the jury, the employee must offer sufficient evidence that
the employer’s explanation was pretextual to create an issue of
fact.”
Id.
ANALYSIS
The first step in the Court’s analysis is to determine whether
Lasure has sufficient prima facie evidence of age discrimination to
survive summary judgment.
Lasure contends that she can satisfy
this requirement because a substantially younger decision maker
decided to fire her, and she was replaced by someone outside the
protected class (Dkt. No. 70 at 6).
Under Barefoot v. Sundale
Nursing Home, 457 S.E.2d 152, 162 (W. Va. 1995), a plaintiff
alleging discriminatory discharge can satisfy the prima facie
requirement by establishing the following:
(1) that she is a
member of a protected class; (2) that she provided “competent,
capable, and loyal service” to her employer; (3) that she was
discharged; and, (4) that she was replaced by someone outside the
19
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
protected class.
457 S.E.2d at 162.
Conaway, which established a
“general test inclusive of the analyses” in older employment
discrimination cases, does not preclude a plaintiff from offering
the prima facie case explained in Barefoot.
See id.
Using the Barefoot standard, Lasure has established a prima
facie case.
She was 57 years old at the time of her termination,
and is, accordingly, a member of the protected class.
W. Va. Code
§ 5-11-3(k). Taking Lasure’s version of the facts as true, she was
a longstanding, loyal, competent employee.
Sam’s Club made an
adverse employment decision when it terminated her as Club Manager
and replaced her with Misty Ulderich, who was 35 years old at the
time.
One
of
the
decision
protected class at age 37.
makers,
Lencke,
was
outside
the
Other decision makers Trelewicz and
Chuck Miller were 36 and 49, respectively.
The burden shifts to Sam’s Club to establish a legitimate,
non-discriminatory reason for dismissing Lasure.
S.E.2d at 430.
Conaway, 358
Sam’s Club argues that it discharged Lasure
according to its uniform policy after four written disciplinary
events within one year and a thorough investigation into employee
allegations of misconduct (Dkt. No. 72 at 10).
Lasure received
written coachings on September 22, 2011, November 10, 2011, and
20
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
December 4, 2011.
After Gilreath’s investigation substantiated
allegations of misconduct and intimidation, Lasure was terminated
on July 6, 2012. Gilreath interviewed upwards of twenty associates
over a three-week period, and gave Lasure an opportunity to respond
before issuing her findings.
Although Lasure believes Gilreath
should have interviewed other associates, Gilreath testified that
she gave anyone who wanted to talk the opportunity to come forward.
The Court therefore concludes that Sam’s Club has offered a
legitimate,
non-discriminatory
reason
for
terminating
Lasure.
Conaway, 358 S.E.2d at 430.
Finally, Lasure bears the burden of establishing that Sam’s
Club’s reason for terminating her was pretextual.
Id.
Lasure
argues that Lencke hatched a scheme to get rid of her and two other
older managers at the MAR meeting (Dkt. No. 70 at 9).8
Following
that, Chuck Miller, Trelewicz, Gilreath, and Athey, all of whom
were present at the MAR meeting, teamed up to generate disciplinary
events in order to terminate Lasure.
Id. at 8, 20-21, 33.
Lasure,
who was not present at the MAR meeting, but heard about it from
8
Any argument that the other two managers were terminated as
part of such a scheme is unsupported by the facts. Brenda Ferrell
voluntarily resigned and James Schaner apparently still works for
Sam’s Club (Dkt. No. 65-10
21
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
Martin, admits that Lencke never mentioned getting rid of her due
to her age.
Rather, she was “given the impression” that she was
unable to do the job because of her age (Dkt. No. 48-1 at 17).
The bulk of her argument hinges on a few comments made by Chuck
Miller more than a year before her termination.
After Chuck Miller placed Lasure on a PIP, he stated during a
telephone call that he would imagine, “at your age and with the
tenure with the company that you have, that you can take care of
yourself should something happen and that you are financially set”
(Dkt. No. 48-1 at 16).
On another occasion, Chuck Miller made the
following comment to Lasure:
“Have you just completely given up?
Are you just tired of all of this?
position for a long time.
72-1
at
7).
It
is
You know, you’ve been in this
Are you just tired of it?”
undisputed
that
neither
(Dkt. No.
Gilreath,
who
investigated Lasure and recommended her termination, nor Trelewicz,
who initiated Lasure’s first coaching, commented on Lasure’s age
(Dkt. No. 48-1 at 5, 23).
When Lasure was asked whether she
recalled anyone on the market team making age-related comments, she
responded in the negative (Dkt. No. 48-1 at 18).
Chuck Miller’s comments bear on Lasure’s tenure with Sam’s
Club, rather than her age.
To the extent his comments can be
22
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
construed as age-related, they were immaterial to Sam’s Club’s
decision to terminate Lasure’s employment.
See Merrick v. Farmers
Ins. Grp., 892 F.2d 1434, 1438 (9th Cir. 1990) (distinguishing
“stray” remarks about age that were unrelated to the decisional
process from comments suggesting that the employer considered
impermissible factors).
Chuck Miller made his comments over the
telephone in a private meeting with Lasure sometime during the
summer of 2011, about one year before Lasure’s termination.
See
Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (4th Cir.
1994)
(finding
comment
made
two
years
prior
to
termination
irrelevant to issue of age discrimination due to remoteness in
time).
There is no evidence that Chuck Miller repeated his
comments at a later point in time, or that any other decision maker
made similar comments. Law in this circuit is clear that the “mere
existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary
judgment.”
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d
389, 300 (4th Cir. 2010) (emphasis in original) (quoting Anderson,
477 U.S. at 247-48) (internal quotation marks omitted)).
Factual
disputes “must be both material and genuine, and district courts
23
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
must ensure both conditions are satisfied before sending a case to
trial.”
Id.
Although Lasure goes into great detail about her exemplary
career at Sam’s Club and the alleged scheme that led to her
termination, the fact remains that she has failed to “set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 256 (internal quotation marks and citation
omitted); see also Biddle v. Fairmont Supply Co., No. 1:14CV122,
2015 WL 5634611, at *4 (N.D.W. Va. Sept. 24, 2015) (Stamp, J.)
(“[T]he fact the plaintiff believes she provided satisfactory work,
or that her coworkers thought the same, carries little weight.
Without more, such a self-assessment by the plaintiff is not enough
to
show
pretext,
or
frankly,
to
satisfy
any
of
the
other
requirements for a discrimination claim under the WVHRA”).
When taking the facts in the light most favorable to Lasure,
as the Court must, the most she can establish is that Sam’s Club
terminated her employment after concluding that she had intimidated
and retaliated against associates.
Lasure’s argument to the
contrary–essentially, that she was a good, valuable employee, and
therefore, her termination must have been based on her age–is
unsupported by the evidence and insufficient to survive summary
24
LASURE V. SAM’S EAST
1:14CV127
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 48]
AND DISMISSING THE CASE WITH PREJUDICE
judgment.
More is required.
The dearth of evidence that Sam’s
Club terminated Lasure based on her age leads to the inevitable
conclusion that Lasure has failed to “offer sufficient evidence
that the employer’s explanation was pretextual to create an issue
of fact.”
Skaggs, 479 S.E.2d at 583.
For the reasons discussed, the Court GRANTS Sam’s Club’s
motion for summary judgment (Dkt. No. 48) and DISMISSES the case
WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record, and to enter a separate judgment order.
It
further DIRECTS the Clerk to remove this case from the active
docket of the Court.
DATED:
December 11, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
25
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