Opinion
Civil Action No. 2:19-02702-RMG-MGB
06-09-2021
Donald Bruno, Plaintiff, v. Publix Super Markets, Inc., Defendant.
REPORT AND RECOMMENDATION
Plaintiff Donald Bruno ("Plaintiff"), through counsel, filed this lawsuit alleging age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). (Dkt. No. 1.) This matter is currently before the Court upon Defendant's Motion for Summary Judgment (Dkt. No. 24.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(g), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration. For the reasons stated below, the undersigned recommends granting Defendant's Motion for Summary Judgment (Dkt. No. 24.)
BACKGROUND
This civil action arises from Defendant's alleged age discrimination against Plaintiff. (Dkt. No. 1.) Plaintiff was employed by Defendant from March 5, 2005 to January 23, 2018. (Id. at 3; Dkt. No. 24-2 at 6-7.) Throughout his employment, Plaintiff worked as a stock clerk, team leader, assistant grocery manager, grocery manager, and grocery replenishment specialist. (Dkt. No. 1 at 3-4.)
Plaintiff was a grocery replenishment specialist at all times relevant to this Report and Recommendation. (Dkt. No. 1 at 4.) Although Plaintiff's Complaint includes allegations of age discrimination that purportedly occurred prior to his role as a grocery replenishment specialist, (Dkt. No. 1 at 3-4), Defendant notes in its Motion for Summary Judgment that "[n]one of these allegations are relevant because they all involved management officials other than the management officials involved in the decision to terminate Plaintiff's employment" and that "[t]hese allegations are further time barred as they all occurred more than 300 days prior to the filing of Plaintiff's Charge of Discrimination" (Dkt. No. 24-1 at 4). Plaintiff does not respond to Defendant's contentions in his response brief, nor does he make any arguments with respect to the allegations at issue. As such, the undersigned has not addressed such allegations in this Report and Recommendation.
While working as a grocery replenishment specialist, Plaintiff was asked to assist with a shoplifter. He was later terminated for violating Defendant's policies while doing so. (Dkt. No. 1 at 5-6; Dkt. No. 24-2 at 25-27.) More specifically, Plaintiff's coworker asked him to assist with a suspected shoplifter on December 22, 2017. (Id. at 4; Dkt. No. 24-2 at 17.) Plaintiff watched this coworker (Abraham Patterson) talk to the alleged shoplifter for several minutes. (Dkt. No. 24-2 at 18.) Plaintiff contends that Mr. Patterson then proceeded to move a shopping cart out of the alleged shoplifter's path, so that Mr. Patterson could escort the shoplifter to the store's office. (Dkt. No. 1 at 4; Dkt. No. 24-2 at 18.) When he did this, the shoplifter "immediately bolted toward the exit." (Dkt. No. 1 at 4; Dkt. No. 24-2 at 18.) Plaintiff explains that he "had a quick, knee jerk reaction to the alleged shoplifter lunging towards him [and] tackled the suspect and brought him to the ground," where he held the shoplifter until an off-duty police officer took over. (Dkt. No. 1 at 5; Dkt. No. 24-2 at 18.)
Immediately following this incident, Plaintiff's supervisor, Donald Calabrese, called Plaintiff into his office and gave him a verbal warning. (Dkt. No. 1 at 5; Dkt. No. 24-2 at 19.) Several weeks later, Mr. Calabrese called Plaintiff back into his office and terminated him for violating Defendant's policies during the shoplifting incident. (Dkt. No. 1 at 5-6; Dkt. No. 24-2 at 25-27.) Plaintiff appealed his termination through Defendant's internal grievance process. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 29-30.) In doing so, Plaintiff reported to Defendant's Human Resources Investigator that he believed he was being discriminated against on account of his age. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 31.) Plaintiff explained that he knew of several other younger employees who had similar interactions with shoplifters but had not been terminated or disciplined. (Dkt. No. 1 at 6; Dkt. No. 24-2 at 31.) After investigating Plaintiff's complaints, Defendant's Human Resources Investigator recommended upholding Plaintiff's termination. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 41.)
Plaintiff's Complaint alleges that he requested a second appeal, but he testified that he did not. (Dkt. No. 1 at 7; Dkt. No. 24-2 at 42.)
On September 23, 2019, Plaintiff filed the instant civil action alleging age discrimination in violation of the ADEA. (See generally Dkt. No. 1.) Now before the Court is Defendant's Motion for Summary Judgment, which was filed on October 16, 2020. (Dkt. No. 24.) After requesting and receiving an extension of time to respond, Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment on November 13, 2020. (Dkt. No. 27.) On December 2, 2020, Defendant filed a timely reply to Plaintiff's response. (Dkt. No. 28.) As such, the motion before the Court has been fully briefed and is ripe for disposition.
LEGAL STANDARD
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
"As the moving party, Defendant[] [is] required to identify those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which [it] believe[s] demonstrate the absence of genuine issues of material fact." Perez v. Arnold Transportation, No. 3:15-cv-3162-TLW, 2018 WL 2301850, at *3 (D.S.C. Feb. 12, 2018) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). "As the nonmoving party, Plaintiff[] must then produce specific facts showing that there is a genuine issue for trial." Id. (citing Celotex Corp., 477 U.S. at 317). "Plaintiff[] may not rest on mere allegations or denials; [he] must produce 'significant probative evidence tending to support the complaint.'" Id. (quoting Anderson, 477 U.S. at 248). In other words, "the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial." Crawford v. Newport News Indus. Corp., No. 4:14-cv-130, 2018 WL 4561671, at *2 (E.D. Va. Mar. 2, 2018) (citing Celotex Corp., 477 U.S. at 317), adopted in part, 2018 WL 2943445 (E.D. Va. June 11, 2018), appeal dismissed sub nom. Kershaw v. Newport News Indus. Corp., 2018 WL 8058614 (4th Cir. Oct. 25, 2018).
In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson, 477 U.S. at 255); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990). Although the Court must "draw all justifiable inferences in favor of the nonmoving party, the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence." Sandlands C & D LLC v. County of Horry, 737 F.3d 45, 54 (4th Cir. 2013) (citing Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013)). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248.
DISCUSSION
Defendant claims that it is entitled to summary judgment because Plaintiff "cannot establish a prima facie case of age discrimination in violation of the ADEA" and because Plaintiff cannot show pretext. (Dkt. No. 24-1 at 14, 16.) For the reasons set forth below, the undersigned agrees. The undersigned therefore recommends that Defendant's Motion for Summary Judgment (Dkt. No. 24) be granted and that this case be dismissed in full.
The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When, as here, the plaintiff lacks direct evidence of discrimination, he must satisfy the three-step burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), to prevail on a claim under the ADEA. Jeffers v. Lafarge N. Am., Inc., 622 F. Supp. 2d 303, 315 (D.S.C. 2008). Under the McDonnell Douglas paradigm, the plaintiff must first establish the elements of a prima facie discrimination claim.
Plaintiff has failed to present any convincing direct evidence of discrimination. See, e.g., Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (holding that direct evidence is "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision"); see also Martin v. Alumax of S.C., Inc., 380 F. Supp. 2d 723, 728 (D.S.C. 2005) (noting that "statements by nondecisionmakers," and "statements by decisionmakers unrelated to the decisional process itself" do not constitute direct evidence). Accordingly, the undersigned analyzes Plaintiff's claim pursuant to the McDonnell Douglas pretext framework.
Plaintiff can establish a prima facie case of age discrimination by showing that: (1) he is at least 40; (2) he was performing his job to the legitimate expectations of his employer; (3) his employer took an adverse employment action against him; and (4) the adverse employment action occurred under circumstances that raise a reasonable inference of unlawful discrimination (e.g., younger similarly-situated employees received more favorable treatment). See Wakefield-Brace v. Greenwood Sch. Dist. 50, No. 8:16-cv-2750-MGL-KFM, 2017 WL 9286975, at *8 (D.S.C. May 25, 2017), adopted, 2017 WL 2569846 (D.S.C. June 14, 2017) (referencing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). In short, the plaintiff must prove that age was the "but for" cause of the adverse action at issue. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009); see also Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725 (4th Cir. 2019) (noting that "the employee must prove that the employer would not have fired her in the absence of age discrimination" (emphasis in original)).
If the plaintiff can set forth the elements of a prima facie case of discrimination, the burden then shifts to the employer to show "a legitimate, nondiscriminatory reason" for the alleged adverse action. Westmoreland, 924 F.3d at 725. If the employer provides a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff "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" See id. at 726 (referencing Tex. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.
Here, the undersigned finds that Plaintiff's discrimination claim falls short under the second element of his prima facie case. With respect to the second prong, the plaintiff must demonstrate that he was performing his job duties at a level that met the employer's legitimate expectations at the time of the adverse employment action. See Dinda v. CSC Gov't Sols., LLC, No. 2:17-cv-03171-DCN-MGB, 2019 WL 4280370, at *7 (D.S.C. Mar. 21, 2019), adopted, 2019 WL 3244186 (D.S.C. July 19, 2019) (referencing Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005)). In evaluating satisfactory job performance, it is well-established that the self-assessment of Plaintiff and the assessments of his coworkers are irrelevant to the analysis. See, e.g., King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003); Stevens v. Del Webb Communities, Inc., 456 F. Supp. 2d 698, 729-30 (D.S.C. 2006). Instead, the court must look to the perception of the decisionmaker. King, 328 F.3d at 149; see also Thompson v. Rock Hill Sch. Dist. III, No. 0:13-cv-1889-JFA, 2014 WL 5369775, at *9 (D.S.C. Oct. 22, 2014) (noting that the decisionmaker's perception applies to discrimination claims under Title VII and the ADEA). The term "legitimate" means that expectations cannot be a "sham designed to hide the employer's discriminatory purpose." Addison v. CMH Homes, Inc., 47 F. Supp. 3d 404, 419-22 (D.S.C. 2014) (internal citations omitted).
It is undisputed that Plaintiff was over 40, that his termination was an adverse action, and that he was replaced by a significantly younger employee. (See generally Dkt. No. 24-1; Dkt. No. 27; Dkt. No. 28.)
Defendant contends that "[t]he record conclusively shows that Plaintiff violated Publix's established policies related to violent acts and physical contact with shoplifters," and that "[a]n act of violence is the epitome of an employee not meeting reasonable employer expectations." (Dkt. No. 24-1 at 15.) More specifically, Defendant explains that Plaintiff violated company policy when he tackled a suspected shoplifter who was attempting to leave the store. (Id. at 5-7, 15.) Defendant describes:
On December 22, 2017, Abraham Patterson (Publix's Meat Manager) observed an individual suspiciously grab four packs of steak from the meat case. (Patterson 89.) . . . Plaintiff recalls being paged to come to the front of the Store and was told that Patterson was on aisle 10 and needed help with a suspected shoplifter. (Pl. 95.) Plaintiff approached Patterson and the suspected shoplifter and began to observe the interaction. (Pl. 95-96.) Plaintiff heard the suspected shoplifter deny that he had taken any other items. (Id.) Plaintiff heard Patterson asking the suspected shoplifter to move out of the shopping aisle so that they could talk further without embarrassing the suspected shoplifter. (Id.) Plaintiff heard the suspected shoplifter agree to move out of the aisle and toward the front of the Store with Patterson. (Id.) Plaintiff never said anything to Patterson or the suspected shoplifter and just stood by and observed the situation. (Pl. 94.) As Patterson and the suspected shoplifter began to move away to the front of the Store (the vestibule area where the cash registers are located), the suspected shoplifter began to run toward the exit. (Pl. 98-100; Pl. Dep. Ex. 14; Patterson 90-91.) Plaintiff immediately pursued, tackled the individual from behind to the ground and then held him on the ground until an off duty police officer offered to assist. (Pl. 96-97; Patterson 90-91.)(Id. at 5-7.) Defendant contends that Plaintiff's conduct in this instance demonstrates that he was not performing his job duties at a level that met Defendant's legitimate expectations because his actions were in direct violation of the legitimate expectations Defendant set out in its policies. (Id. at 7-9, 14-16.) Such expectations include that Defendant's employees "never make physical contact with a shoplifting suspect in an attempt to get him or her to cooperate," "[n]ever put . . . customers or associates in a situation where their safety is jeopardized," never "obstruct[], restrain[], or block[] the movement of another person," and "never try to apprehend a shoplifter." (Dkt, No. 24-2 at 90, 92; Dkt. No. 24-8 at 40, 69.)
In response to Defendant's assertions, Plaintiff states that he was aware of these policies and admits that he violated them. (Dkt. No. 24-2 at 13-16; Dkt. No. 27 at 5.) However, Plaintiff contends that Defendant had no issues with Plaintiff's job performance prior to the aforementioned incident and that "it is disingenuous for Publix to now argue that Mr. Bruno was not performing his job [] duties at a level that met his employer's legitimate expectations" solely because of that incident. (Id. at 13.)
In reply, Defendant cites to a recent case in which this Court concluded that a defendant could rely on a termination event alone to show that the plaintiff was not meeting the defendant's legitimate performance expectations at the time of the plaintiff's discharge. (Dkt. No. 28 at 2-3, citing to Sanders v. McLeod Health Clarendon, No. 2:18-cv-01344-DCN-MGB, 2020 WL 3467886, at *6 (D.S.C. June 25, 2020), appeal dismissed sub nom. Sanders v. Clarendon, No. 20-1812, 2020 WL 8261641 (4th Cir. Dec. 1, 2020)). In that case, the Court explained:
Sanders asks the court to consider whether he was meeting McLeod's expectations by turning a blind eye to the events that led to his firing. Of course, the source of an employee's failure to meet his employer's expectations is often the events that led to the employee's firing. Sanders's interpretation of law would all but eliminate the burden of the plaintiff with respect to the third element of the prima facie case because it would preclude the court from considering the very reason that the employee failed to meet the employer's legitimate expectations.Sanders, 2020 WL 3467886, at *6. The Court in Sanders also explained that "the law is clear that the court considers whether a plaintiff was fulfilling his employer's legitimate expectations 'at the time of discharge', not prior to the events that led to the plaintiff's firing." Id. (citing Chauncey v. Life Cycle Eng'g, Inc., 2013 WL 5468237, at *9 (D.S.C. Sept. 30, 2013).
Although Sanders dealt with an ADA claim, the same legal standard and reasoning applies to Plaintiff's ADEA claim. See McFadden v. Stahl Crane Sys., Inc., No. 2:13-cv-03039-DCN, 2017 WL 1190870, at *4 (D.S.C. Mar. 31, 2017) (explaining that "the prima facie cases required for ADEA and ADA claims are essentially the same, except that each claim addresses a different type of discrimination").
Based on the above, the undersigned must agree that Plaintiff cannot demonstrate that he was fulfilling Defendant's legitimate expectations at the time of his discharge. Plaintiff admittedly violated Defendant's policies when he tackled a suspected shoplifter. See Jones v. Dole Food Co., 827 F. Supp. 2d 532, 547 (W.D.N.C. 2011), aff'd, 473 F. App'x 270 (4th Cir. 2012) ("When an employee is aware of an employer's policy and violates it, he has not met the employer's legitimate expectations."). Defendant's expectation that its employees refrain from making physical contact with customers—including suspected shoplifters—can only be considered legitimate. See Wigger v. CVS Pharmacy, No. 2:15-cv-01122-DCN-MGB, 2017 WL 9471790, at *7 (D.S.C. July 21, 2017), adopted sub nom. Wigger v. CVS Pharmacy, Inc., 2017 WL 4296724 (D.S.C. Sept. 27, 2017) (referencing Hill v. Se. Freight Lines, Inc., 877 F. Supp. 2d 375, 391 (M.D.N.C. 2012), aff'd, 523 F. App'x 213 (4th Cir. 2013)) ("When determining whether an employee is meeting her employer's legitimate expectations, courts do not sit as a 'superpersonnel department weighing the prudence of employment decisions.'"). Thus, Plaintiff cannot establish the third prong of his prima facie case for age discrimination.
However, even assuming arguendo that Plaintiff could demonstrate satisfactory job performance, the undersigned finds that Plaintiff still fails to raise a genuine question of material fact as to whether Defendant's legitimate, nondiscriminatory reason for terminating his employment was pretext for discrimination because he fails to present any evidence from which a reasonable jury could find that Defendant did not believe that Plaintiff's violative conduct was a sufficient reason for termination. Plaintiff's primary argument to show pretext is that "several younger employees . . . had similar interactions with alleged shoplifters, [but were not] terminated or even disciplined." (Dkt. No. 1 at 6; Dkt. No. 27 at 16.) In support of this assertion, Plaintiff identifies Jared Lott, David Kennedy, and George Newkirk as comparators. (Dkt. No. 24-2 at 31.) However, the record does not reflect that any of these proffered comparators were similarly situated, undermining Plaintiff's claim of disparate treatment. (Id. at 31-37.)
Throughout his Response in Opposition, Plaintiff makes various arguments regarding employees who purportedly violated Defendant's shoplifting policy without being disciplined. (Dkt. No. 27 at 2-3, 7-10, 16-20.) However, none of the situations referenced by Plaintiff involved physical contact with a customer (except for those addressed herein). (See id.) Because such violations are incomparable to Plaintiff's violation of tackling a shoplifter, the undersigned declines to address them. See Cox v. Lowe's Home Centers, LLC, No. 3:14-cv-00679-MOC-DCK, 2015 WL 7288689, at *5 (W.D.N.C. Nov. 17, 2015), aff'd, 667 F. App'x 405 (4th Cir. 2016) ("Generally, the compared employees must have dealt with the same decision-maker and engaged in conduct of comparable seriousness . . . an employee need not show complete identity in comparing himself to the better treated employee, but he must show substantial similarity.").
"If a plaintiff wishes to prove that a defendant's legitimate, non-discriminatory explanation is pretext by pointing to other employees who were treated differently, '[t]he similarity between comparators . . . must be clearly established in order to be meaningful.'" Ryan v. Wolf, No. CV ELH-19-1968, 2021 WL 409747, at *16 (D. Md. Feb. 5, 2021) (quoting Swaso v. Onslow Cty. Bd. of Educ., 698 F. App'x 745, 748 (4th Cir. 2017), as amended (Aug. 11, 2017)). In other words, "[c]omparator evidence is useful in assessing pretext only when the comparator employees 'were similarly situated to the plaintiff (but for the protected characteristic).'" Cole v. Fam. Dollar Stores of Maryland, Inc., 811 F. App'x 168, 173 (4th Cir. 2020) (quoting Laing v. Fed. Exp. Corp., 703 F.3d 713, 719 (4th Cir. 2013)). "[I]t is the plaintiff's 'task to demonstrate that the comparator is indeed similarly situated.'" Davis v. Centex Homes, No. 4:09-cv-830-RBH-SVH, 2011 WL 1525764, at *3 (D.S.C. Apr. 1, 2011), adopted sub nom. Davis v. Centex Int'l II LLC, 2011 WL 1526928 (D.S.C. Apr. 20, 2011) (internal citations omitted). To do so, Plaintiff must demonstrate that he is similar in all relevant respects to his alleged comparators. Hurst v. D.C., 681 F. App'x 186, 191 (4th Cir. 2017). Such a showing includes evidence that the individuals dealt with the same supervisor, were subject to the same standards and engaged in the same conduct "without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992)).
Here, the record reflects that none of Plaintiff's proffered comparators served in the same role or shared the same responsibilities as Plaintiff. See Sherman v. Westinghouse Savannah River Co., LLP, No. 1:00-1649-26AJ, 2004 WL 5578724, at *3 (D.S.C. Sept. 29, 2004), aff'd sub nom. Sherman v. Westinghouse Savannah River Co., 263 F. App'x 357 (4th Cir. 2008) (finding no true comparators where the identified employees had different job responsibilities); Lightner v. City of Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008) (rejecting comparison evidence as "too loose" because plaintiff and comparator held different job positions). Moreover, Plaintiff's conduct is distinguishable from that of his proffered comparators.
For instance, Plaintiff contends that Mr. Lott and Mr. Kennedy "took down" a shoplifter just a few months prior to the December 2017 incident. (Dkt. No. 24-2 at 34-36.) In response to this contention, Defendant submits a declaration from Kelsey Ramirez, the Human Resources Investigator assigned to investigate Plaintiff's termination. (See generally Dkt. No. 24-8.) Ms. Ramirez's declaration confirms that Mr. Lott and Mr. Kennedy made physical contact with a shoplifter. (Id. at 3.) However, the declaration also states that they did so in self-defense. (Id.) Mr. Lott's deposition testimony reiterates that the customer attempted to attack him before he and Mr. Kennedy made any physical contact. (Dkt. No. 24-7 at 11.) Thus, from an objective standpoint, their conduct is sufficiently different from Plaintiff's because Plaintiff never claimed that he tackled the shoplifter at issue here in order to protect himself. (Dkt. No. 24-2 at 19-20.) Rather, Plaintiff tackled the shoplifter from behind after the shoplifter "made a sudden and unexpected attempt to flee." (Dkt. No. 24-2 at 16, 22; Dkt. No. 27 at 17.)
In addition, the record reflects that Mr. Calabrese was the ultimate decisionmaker with respect to Plaintiff's termination, but he was "not involved in or aware of" the incident involving Mr. Lott and Mr. Kennedy. (Dkt. No. 24-3 at 8; Dkt. No. 24-5 at 19; Dkt. No. 24-5 at 11; Dkt. No. 24-8 at 3.) As such, Plaintiff cannot use Mr. Lott and Mr. Kennedy as comparators for purposes of his disparate treatment claim. See Hurst v. District of Columbia, 681 F. App'x 186, 193 (4th Cir. 2017) (referencing Stanback v. Best Diversified Prods., Inc., 180 F.3d 903, 910 (8th Cir. 1999)) ("When different decision-makers are involved, two decisions are rarely similarly situated in all relevant respects.").
With respect to Mr. Newkirk, Plaintiff alleges that he tackled a customer who fled after attempting to rob the store. (Dkt. No. 24-2 at 33.) However, Plaintiff also states that Mr. Newkirk was the same age as Plaintiff. (Id. at 37.) Accordingly, Plaintiff cannot use Mr. Newkirk as a comparator to support his age discrimination claim because Mr. Newkirk is not outside of Plaintiff's protected class.
Other than this insufficient comparator evidence, Plaintiff offers nothing to suggest that Defendant's reason for terminating him was pretextual. Laber v. Harvey, 438 F.3d 404, 430-31 (4th Cir. 2006) ("[T]he plaintiff must do more than simply show the articulated reason is false; he must also show that the employer discriminated against him on the basis of age."). Instead, the record reflects that Defendant thoroughly considered whether to terminate Plaintiff and did not consider Plaintiff's age in making the decision to do so. (See generally Dkt. No. 24-3; Dkt. No. 24-4; Dkt. No. 24-5; Dkt. No. 24-6; Dkt. No. 24-7; Dkt. No. 24-8.) For example, Mr. Calabrese conferred with multiple human resources employees before deciding to terminate Plaintiff. (See generally Dkt. No. 24-3; Dkt. No. 24-4; Dkt. No. 24-5.) When Plaintiff contested Mr. Calabrese's decision, Defendant's human resources department conducted a full investigation into the incident. (See generally Dkt. No. 24-8.) While Plaintiff may not agree with Defendant's decision, he simply has not provided sufficient evidence for the Court to conclude that Defendant terminated him because of his age, even when considering the facts in the light most favorable to him. (See generally Dkt. No. 24-3; Dkt. No. 24-8.)
For instance, Plaintiff does not contend that any of Defendant's employees made comments or insinuations about his age, nor does he point to inconsistent statements or testimony in the record that might suggest age-related bias. (See generally Dkt. No. 24-2; Dkt. No. 27.)
Further, the undersigned emphasizes that the fairness of Plaintiff's termination is not relevant to the pretext inquiry. Indeed, "[an employer's] failure to adhere to common notions of fairness in the termination process is not probative of discriminatory intent and cannot show pretext." Addison, 47 F. Supp. 3d at 421. Federal discrimination statutes are not vehicles for "substituting the judgment of a court for that of the employer." Thompson, 2014 WL 5369775, at *12 (citing Jiminez v. Mary Washington College, 57 F.3d 369, 377 (4th Cir. 1995); see also Malghan v. Evans, 118 F. App'x 731 (4th Cir. 2004) ("[T]he law does not require an employer to make, in the first instance, employment choices that are wise, rational, or even well-considered, as long as they are nondiscriminatory.") Thus, it is not this Court's place to decide whether Defendant's reasoning "was wise, fair, or even correct, ultimately, so long as it truly was the reason for [Plaintiff's] termination." Hawkins v. Pepsico, 203 F.3d 274, 279 (4th Cir. 2000) (citing DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Because Plaintiff has failed to present evidence that intentional discrimination was the "but for" reason for his termination, the undersigned is constrained to recommend that the Court grant Defendant's Motion for Summary Judgment (Dkt. No. 24) as to Plaintiff's claim of age discrimination in violation of the ADEA. See Merritt v. Old Dominion Freight, 601 F.3d 289, 294-95 (4th Cir. 2010) (noting that the purpose of the McDonnell Douglas proof scheme is to "facilitate determination of the ultimate question of discrimination vel non"); see also Henson v. Liggett Grp., Inc., 61 F.3d 270, 275 (4th Cir. 1995) (referencing Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir. 1994)) ("Despite the 'minutiae of the various proof schemes set forth in McDonnell Douglas,' . . . the 'straightforward' question to be answered in discrimination cases is whether the plaintiff has successfully demonstrated that she was the victim of [] discrimination on the part of the employer.")
CONCLUSION
Based on the foregoing, the undersigned recommends that Defendant's Motion for Summary Judgment (Dkt. No. 24) be granted.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE June 9, 2021
Charleston, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).