Opinion
1:02CV69-C
July 23, 2003
MEMORANDUM OF DECISION
THIS MATTER is before the Court on the motion of Defendants Collins Aikman Products Company ("Collins Aikman"), Harold Rogers, Millard King, and William Waters for summary judgment, filed in this matter on April 15, 2003. Upon consideration of the evidence presented by the parties, the parties' memoranda of law, and the arguments of counsel, the Court finds that Defendants' motion for summary judgment is due to be granted and judgment entered in favor of Defendants.
PROCEDURAL BACKGROUND
Plaintiff filed this action on March 18, 2002, alleging that Defendants discriminated against him on the basis of his age in violation of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. ("ADEA") and retaliated against him for engaging in protected activity in violation of the ADEA and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-1 et seq. ("Title VII"). Plaintiff also alleged that Defendants wrongfully terminated his employment because of his age in violation of North Carolina public policy as embodied in North Carolina's Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 et seq., and tortiously interfered with his contract with Collins Aikman in violation of North Carolina common law.
On May 17, 2003, Defendants filed a motion to dismiss, and on July 1, 2002, this Court granted Defendants' motion as to Plaintiffs claims for age discrimination and retaliation under the ADEA against the individual defendants, Plaintiffs Title VII claims, Plaintiffs wrongful termination claims against the individual defendants, and Plaintiffs claim of tortious interference with contract against Collins Aikman. Following discovery, on April 15, 2003, Defendants filed their motion for summary judgment and supporting memorandum. Plaintiff filed his response to Defendants' motion on May 13, 2003, to which Defendants filed a reply on June 2, 2003. The Court conducted a hearing on Defendants' motion on July 1, 2003.
FACTUAL BACKGROUND
This claim arises out of the termination of Plaintiff s employment with Collins Aikman on May 1, 2001. Plaintiff was hired by Collins Aikman, a manufacturer of automobile interior components, in July 1995 as the Human Resources Manager at its plant in Old Fort, North Carolina. At the time he was hired, Plaintiff was fifty-three years old. (Pl. Dep. at 12, 56). As human resources manager, Plaintiffs responsibilities included hiring, firing, training, discipline, safety, compensation, and workers' compensation administration. (Id. at 77, 82-83). Plaintiff was also responsible for the fair and consistent administration of Collins Aikman policy. (Id. at 75). At the time he was hired, Plaintiff was responsible for human resources at the Old Fort plant; in 1997, he also became responsible for human resources management at the Collins Aikman Engineering and Design Center located across a parking lot from the plant. (Id. at 141). At the time his employment was terminated, Plaintiffs direct supervisor was Plant Manager Steve Laton, but Plaintiff also reported to James Flood, plant manager at the Engineering and Design Center, and to William Waters, Senior Director of Human Resources, whose responsibilities included the supervision of human resources at five Collins Aikman plants. (See id. at 132, 141, 145).
From the beginning of his employment through March 1, 2000, Plaintiff consistently received a performance evaluation rating of "2," which rating meant that his performance was above average and exceeded expectations. (Waters Dep. at 50; Laton Dep. at 25). While certain Collins Aikman employees, including Mr. Laton, testified in their depositions to having knowledge of some complaints about Plaintiffs conduct as human resources manager, it appears that no one seriously questioned Plaintiffs competence as human resources manager prior to the fall of 2000.
In October 2000, William Waters was hired as Senior Director of Human Resources in carpets and acoustics and, in that position, had responsibility for the human resources departments in five of Collins Aikman's plants, including Old Fort. (Waters Dep. at 23). While Mr. Waters was not Plaintiffs direct supervisor, he was a "dotted line" supervisor, meaning that he had significant supervisory responsibilities over Plaintiff and input into his evaluations, and he was ultimately responsible for the effective operation of the human resources departments at his five plants. (Waters Dep. at 28; Laton Dep. at 6, 23). He was, therefore, regularly in contact with Plaintiff, answering Plaintiffs questions about the application of various Collins Aikman's policies or personnel issues and monitoring the performance of Plaintiff and his department at the Old Fort plant. (Waters Dep. at 28).
According to Mr. Waters, upon taking over the human resources responsibilities at the division level in October 2000, he spoke with his supervisor, Millard King, who stated that Plaintiff was one of two human resources managers about whom Mr. King had concerns. (Waters Dep. at 62). Mr. Waters visited each of the five plants over which he had been given responsibility, and stated that he encountered resistence from Plaintiff, in particular. (Waters Dep. at 60; see also Pl. Dep. at 161-62). Mr. Waters testified in his deposition that he began receiving complaints from various employees about the manner in which Plaintiff treated them soon after he visited the Old Fort plant. (Waters Dep. at 101, 115, 121, 149). Mr. Waters testified that he was especially concerned about Plaintiffs administration of workers' compensation policies and apparent resistence to Mr. Waters' scrutiny. (Waters Dep. at 123; see also Pl. Dep. at 166). With respect to Plaintiffs administration of the workers' compensation program, Mr. Waters testified in his deposition that Tammy Parece, the claims adjuster assigned to Collins Aikman, expressed particular concern about Plaintiffs ability to manage the workers' compensation program. (Waters Dep. at 70-71). Additionally, Mr. Waters testified that the company nurse, Rebecca Bruner, complained about Plaintiffs unprofessional behavior in telling inappropriate jokes or making offensive comments to her. (Id. at 91).
In support of summary judgment, Defendants submitted the declaration of Linda Gregory, Maintenance Clerk at the Old Fort plant, who stated that she complained to Mr. Waters in November 2000 and in January 2001 and that she found Plaintiff to be rude, ill-mannered, sexist, and inconsistent in his application and enforcement of company policies. (Gregory Decl. ¶¶ 3-5; see also Waters Dep. at 66-67). Defendant also submitted the declaration of Mr. Waters who stated that he was also concerned that Plaintiff was not computer literate and that his failure to use a computer "reflected poorly on his interest in improving his skills and keeping pace with his job." (William Waters Decl. f 11; see also Waters Dep. at 161; Pl. Dep. at 51). Mr. Waters stated further that he told Plaintiff about his concerns, both orally and in writing, on numerous occasions before April 2001. (Id.) Plaintiff, however, testified in his deposition that while Mr. Waters shared complaints he had heard from a couple of employees, he did not share other complaints from employees and expressed concerns only about Plaintiffs use of profanity, his department's use of the wrong 1-9 form, and some workers' compensation issues. (Pl. Dep. at 203, 207, 243, 246).
On January 16, 2001, Mr. Waters met with Plaintiff and discussed some of his concerns about Plaintiffs performance. (Waters Dep. at 123). Plaintiff disputed Mr. Waters' evaluation of his performance, and during this meeting, Mr. Waters acknowledged that he had spoken both to Mr. King and to Hal Rogers, who had been plant manager at the Old Fort plant when Plaintiff was hired and who, according to Plaintiff, had repeatedly made derogatory statements about his age during 1997 or 1998. (Waters Dep. at 105; PL Dep. at 239; see also Laton Dep. at 91). Specifically, Plaintiff testified in his deposition that Mr. Rogers had stated on one occasion when Plaintiff yawned in front of other employees that "the old man didn't have his Geritol last night or he didn't get in bed by 8 o'clock." (PL Dep. at 238). Plaintiff also testified that in response to Plaintiffs statement that he would not be able to attend a golf tournament, Mr. Rogers stated that the only reason Plaintiff could not attend was that he was too old. (Id.) Plaintiff testified further in his deposition that Mr. Rogers asked him if he had played basketball on dirt floors when he was younger and mentioned during a staff meeting that Plaintiff was the only one in attendance who could remember the Great Depression. (Id. at 238-39). Finally, Plaintiff testified to having heard Mr. Rogers tell his supervisor, Steve Laton, during a discussion about performance reviews, that Plaintiff was too old to go to any other job and that Mr. Laton should, therefore, save his "2" ratings for younger employees who could benefit from the higher rating through promotion and give Plaintiff a "3" rating, which would be for average work performance. (Id. at 310). According to Plaintiff, because of the close personal relationship between Mr. Rogers and Mr. King and because Mr. Waters acknowledged having spoken with both Mr. Rogers and Mr. King about Plaintiff, Plaintiff became worried that Mr. Waters was biased against him. Additionally, Plaintiff testified that on one occasion when he, Mr. Laton, and Mr. Waters were discussing the "no-fault" attendance policy and Mr. Laton noted that he and Plaintiff had been in the business thirty years, Mr. Waters "made a comment that age and experience wasn't all that important in all situations." (Pl. Dep. at 148, 249). Plaintiff testified that on another occasion, Mr. Waters told him that "the job had outgrown [Plaintiff]; that [he] had been doing it the old way too long." (Pl. Dep. at 236, 237).
In January or February 2001, David Pokora, Plant Controller/Accounting Manager at the Old Fort plant expressed to Mr. King that "something needed to be done with respect to Harry Waters." (Pokora Decl. ¶ 5). According to Mr. Pokora, Plaintiff was vindictive and not knowledgeable about company policies. (Id. ¶ 3). In February 2001, Dean Young, a Mold Finisher at the Old Fort plant, complained to Mr. Waters that Plaintiff was inconsistent and appeared to make up the rules as he went along. (Young Decl. ¶ 3). Mr. Young also stated that Plaintiff frequently belittled employees when they disagreed with him and was "one of the biggest liars at the Old Fort plant." (Id. Iff 4-5). Also, in March 2001, Jack Barnett, an employee at the Engineering Center, called Mr. Waters and complained about the way Plaintiff was conducting employee lay-offs. (Barnett Decl. ¶ 4). Mr. Barnett subsequently met Mr. Waters at the plant and opined that Mr. Waters could not be trusted. (Id.)
On or about March 11, 2001, Plaintiff called Gregory Tinnell, Executive Vice President of Human Resources, and expressed his concern that Mr. Waters was out to get him and that he believed that he was being singled out because of his age. (Pl. Dep. at 160, 248, 251; Tinnell Dep. at 16-17). Several days later, on or about March 14, 2001, Mr. Waters called Mr. Tinnell about another issue and, during that conversation, Mr. Tinnell told Mr. Waters that Plaintiff had telephoned him and asked Mr. Waters what was happening with Plaintiff. (Waters Dep. at 165-67). Mr. Waters testified in his deposition that he explained to Mr. Tinnell that he had concerns about Plaintiffs job performance, and Mr. Tinnell advised Mr. Waters to document the problems and give Plaintiff a performance improvement plan. (Id. at 167; see also Tinnell Dep. at 19). According to both Mr. Tinnell and Mr. Waters, Mr. Tinnell did not tell Mr. Waters about Plaintiffs claim of age discrimination. (William Waters Decl. ¶ 8). Nevertheless, according to Plaintiff, Mr. Waters confronted him that same day, charging him with having called Mr. Tinnell and instructing Plaintiff not to do it again:
The first thing he sad was, You called Gregg [sic] Tinnell on me, didn't you?
I said, Yes, I did.
And he says, Why?
I says, Because I fear for my job. I said, I'm afraid you're going to fire me. I said I don't deserve being fired. I'm trying my best to please you. I want to please you. But I don't seem to in your mind be able to.
I said, You're not giving me a chance. I said, I know for a fact that Steve Laton told you, . . . get to know him, William. Harry is a good guy. Get to know him.
William responded by telling me that I better not call Gregg [sic] anymore [sic] on him. And I perceived that as a threat. And the very next words out of his mouth was, You don't like me, do you?
I said, Not one bit. I said, You're trying to take away my farm, my home, my family.
(Pl. Dep. at 226-27). Mr. Waters and Plaintiff had a heated conversation, and Mr. Waters testified in his deposition that he felt physically threatened by Plaintiff, though it is undisputed that Plaintiff did not physically touch Mr. Waters. (Waters Dep. at 169; PL Dep. at 237). Additionally, either during this conversation or during an earlier conversation, Plaintiff mentioned that he had been asked to perform illegal acts in the past and that he had tape recordings of these requests. (Waters Dep. at 174-75).
Finally, on March 14, 2001, Mr. Waters spoke with a number of employees at the Old Fort plant, some of whom complained about Plaintiff and whose affidavits Defendants have filed in support of their motion for summary judgment. (See Pokora Decl. ¶ 6; Exh. 1 attached to Pokora Decl.; Cook Decl. ¶ 5; Exh. 1 attached to Cook Decl.). For example, Lucy Cook, a Mold Line Supervisor at the Old Fort plant, stated that she was approached by Mr. Waters in March 2001 and that she told Mr. Waters that employees were afraid of Plaintiff, that he had personally attacked her, that most employees did not trust Plaintiff, and that Plaintiff "played favorites" when applying company policies. (Cook Decl. ¶ 5). According to Mr. Waters, he spoke with these employees before calling Mr. Tinnell and learning about Plaintiffs call to him. (William Waters Decl. ¶ 8).
On or about March 15, 2001, Mr. Laton reported an initial evaluation of Plaintiff s performance for the year 2001 as a "3," which rating means that his performance is average and meeting expectations. (Exh. 3 attached to Laton Dep.; Laton Dep. at 148; PL Dep. at 281-82). This evaluation was not final, but rather, was a summary of how Mr. Laton intended to rate Plaintiffs performance. (PL Dep. at 282). According to Mr. Laton, during the time he supervised Plaintiff, he received complaints about him, but he also generally believed that he was effective and stated on at least one evaluation that he was "very good at handling people, policy issues and coaching both hourly and salaried people." (Laton Dep. at 40, 46, 65).
Following his confrontation with Plaintiff, Mr. Waters spoke with Steve Laton and Millard King, and on April 5, 2001, Mr. Laton and Collins Aikman counsel met with Plaintiff. (Waters Dep. at 174-75; Laton Dep. at 109). At this meeting, Plaintiff explained that the illegal acts to which he referred on March 14, 2001 were instances at least several years earlier when he had been instructed by Hal Rogers to terminate employees, which terminations Plaintiff believed would be unlawful. (Pl. Dep. at 276-78). Plaintiff shared notes from these encounters with Mr. Laton and the company's counsel, and they discussed preparing a list or description of job expectations Plaintiff believed to be necessary for him properly to perform his job.
Following this meeting, Plaintiff requested a week of vacation, and Mr. Laton, having been informed by Plaintiff that Plaintiff had all of his duties covered for the week, agreed. (Pl. Dep. at 283-84; Laton Dep. at 35). Plaintiff had scheduled interviews with job candidates during the week, however, which had to be re-scheduled or conducted by different personnel. (Pl. Dep. at 284-85; McClure Dep. at 20). According to Plaintiff, he was devastated by the meeting on April 5 and his fear of termination, and he had simply forgotten about the interviews when he requested the time off. (Pl. Dep. at 285).
On April 16, 2001, Plaintiff was called into a meeting with Mr. Waters, Mr. Laton, and Jim Flood. At this meeting, he was given a Statement of Expectations and Final Warning ("Final Warning"), which Mr. Waters had initially prepared. (Exh. 16 attached to Pl. Dep.; Waters Dep. at 181; Laton Dep. at 133). The Final Warning identified numerous areas needing improvement, including workers' compensation administration, employee relations, guidance to employees as to company policy, professionalism, and respect for superiors. (Id.) Under the section of the Final Warning entitled "Acknowledgement [sic]" the Final Warning provided that Plaintiff was to develop a plan of action to address the concerns identified. (Id.) Earlier in the Final Warning, under the heading of "Employee Relations," the Final Warning provided that Plaintiff was "expected to develop a plan of action, including direct contact and personal involvement, directed at regaining the confidence of the employees at the Old Fort plant and Engineering Center" and that such plan was to be developed within ten days of the date of the Final Warning and approved by the Plant Manager and Senior Director of Human Resources. (Id.) Mr. Waters and Mr. Laton also testified that Plaintiff was told that he would need to prepare the action plan but that they would be available to assist him in doing so. (Waters Dep. at 186; Laton Dep. at 140; Flood Dep. at 28).
Plaintiff admitted in his deposition that upon receiving the Final Warning, he got upset and raised his voice and that he did most of the talking in the meeting. (Pl. Dep. at 269-70; Laton Dep. at 135-36; Flood Dep. at 24). Plaintiff testified in his deposition, however, that he did not understand much of what was contained within the Final Warning and that the other attendees at the meeting agreed to provide clarification before he was expected to submit a plan of action. (Laton Dep. at 273, 280-81). Plaintiff refused to sign the Final Warning but submitted a handwritten note, also on April 16, 2001, in which he stated that he disagreed with ninety-percent of the contents of the Final Warning and believed it to be a prelude to his termination. (Exh. 17 attached to Pl. Dep.). Plaintiff stated further in this note that he did not understand "many things" contained in the Final Warning but was refused explanation. (Id.) On April 26, 2001, Plaintiffs counsel faxed a letter to counsel for Collins Aikman noting that Plaintiff had been told during the April 16 meeting that he would be provided with further detail of his performance deficiencies before he would be required to develop the plan of action described in the Final Warning. (Exh. 1 attached to Allan Root Aff.; see also Pl. Dep. at 288). Sharon McClure, a Human Resources Technician who worked directly with Plaintiff, testified in her deposition, however, that Plaintiff stated when he returned from the April 16 meeting that he was not going to respond to the requested action plan because "it wouldn't do any good." (McClure Dep. at 69).
On May 1, 2001, Collins Aikman terminated Plaintiffs employment, following a conference call several days earlier involving Mr. Waters, Mr. King, Mr. Laton, Mr. Tinnell, and counsel. (Waters Dep. at 191; Tinnell Dep. at 23-26). The decision was unanimous to terminate Plaintiffs employment. (Waters Dep. at 191; Laton Dep. at 145). In his deposition, Plaintiff testified that he believed he was terminated for "bucking" Hal Rogers and not fitting into the company image of young, attractive employees. (Pl. Dep. at 311-12). Plaintiff acknowledged that he had never heard Mr. King, Mr. Tinnell, Mr. Laton, or Mr. Flood make a derogatory statement about his age, nor had he heard anyone say that they wanted to terminate him because of his age. (Id. at 315, 317). With respect to his claim of retaliation, Plaintiff testified in his deposition that he believed he was retaliated against for refusing to fire employees in violation of employment laws, and he noted that Hal Rogers had told him that he would not forget his refusal to do as asked. (Id. at 332). Finally, in his deposition, Plaintiff acknowledged that he may have told an EEOC investigator that nothing had actually changed as a result of his call to Mr. Tinnell in March 2001. (Id. at 335). According to Plaintiff, Mr. Tinnell had told him not to worry about Mr. Waters and to continue to do his job, but nothing ever changed — "William was hard-driving, and it just kept on and on and on." (Id. at 336).
Also on May 1, 2001, Mr. Laton completed a final Evaluation of Service on the Termination of Employment form. (Exh. 10 attached to Laton Dep.). In this evaluation, he marked Plaintiff "below average" on quality of work, dependability, cooperation, and attendance and "unsatisfactory" on quantity of work. (Id.) Mr. Laton marked him "average" on knowledge of the job and accident record. (Id.) In explaining in his deposition why his evaluation of Plaintiffs performance decreased from a "3," or average, in March 2001 to below average or unsatisfactory for most categories just six weeks later, Mr. Laton testified that it related to the chain of events between April 5, 2001, when Mr. Laton met with Plaintiff and Collins Aikman counsel concerning the allegations of illegal acts, and May 1, 2001, when Plaintiffs employment was terminated. (Laton Dep. at 148).
On or about August 31, 2001, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), in which he alleged that his employment was terminated because of his age in violation of the ADEA and in retaliation for opposing practices prohibited under Title VII. (Exh. 19 attached to PL Dep.). On or about January 31, 2002, Plaintiff received a notice of right to sue from the EEOC and filed this action on or about March 18, 2002.
SUMMARY JUDGMENT STANDARD
The standard for summary judgment is familiar. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). In evaluating a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party. Id., 477 U.S. at 255, 106 S.Ct. at 2514. However, once the movant has shown an absence of any genuine issue of material fact, the nonmoving party must produce evidence demonstrating that a triable issue of fact exists. See id., 477 U.S. at 248, 106 S.Ct. at 2510; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554 (1986).DISCUSSION
I. Age Discrimination
The ADEA provides that it is "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). In proving a claim of age discrimination under the ADEA, a plaintiff may rely on direct evidence of discriminatory intent or on circumstantial evidence by using the framework of proof articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142, 120 So. Ct. 1097, 2105 (2000) (applying McDonnell Douglas framework in context of ADEA claim and noting that courts of appeals have routinely employed some variant of this framework to claims asserted under the ADEA); Dugan v. Albemarle County Sch. Bd., 293 F.3d 716, 721 (4th Cir. 2002) (applying McDonnell Douglas burden-shifting method of proof to claim of age discrimination under the ADEA). Under this framework, a plaintiff must first establish a prima facie case of age discrimination by showing: (1) at the time his employment was terminated, he was a member of the class protected by the ADEA; (2) he suffered an adverse employment action; (3) at the time the employer took the adverse employment action he was performing at a level that met his employer's legitimate expectations; and (4) he was replaced by someone substantially younger. See Dugan, 293 F.3d at 720-21; see also King v. Rumsfeld, 328 F.3d 145, 149 (4th. Cir. 2003) (articulating elements of aprima facie discriminatory discharge case). If a plaintiff produces sufficient evidence to establish aprima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. If the employer provides a legitimate, non-discriminatory reason for its action, the presumption of discrimination "drops from the case," and the burden shifts back to the plaintiff to demonstrate that the employer's stated reason for its action was a pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 10, 101 S.Ct. 1089, 1095 n.lO(1981).
At all times, the plaintiff "bears the ultimate burden of proving . . . intentional discrimination." Runnebaum v. NationsBank of Maryland, 123 F.3d 156, 164 (4th Cir. 1997) (en bane), overruled on other grounds, Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196 (1998). In terms of the quantum of proof necessary to avoid judgment as a matter of law, the Supreme Court made clear in Reeves that "a plaintiff 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." Reeves, 530 U.S. at 148, 120 S.Ct. at 2109 (emphasis added). Proof of pretext in addition to the prima facie case will not always be sufficient to avoid judgment as a matter of law, however, and summary judgment will still be appropriate where, for example, even considering a plaintiffs evidence of pretext, "no rational factfinder could conclude that the action was discriminatory . . . or [where] the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination occurred." Id.
In this case, Plaintiff does not dispute that there is no direct evidence that Collins Aikman discriminated against him on the basis of his age when it terminated his employment. Accordingly, Plaintiff must first establish aprima facie case of age discrimination. To that end, it is undisputed that Plaintiff was a member the class of persons protected by the ADEA, that he was fired and thereby suffered an adverse employment action, and that he was replaced by a substantially younger person. Defendant argues, however, that Plaintiff was not performing his job at a level that met his employer's legitimate expectation at the time of his termination.
The Fourth Circuit recently addressed the third prong of the prima facie case requirement in its decision in King.In King, the Fourth Circuit made clear that a plaintiff cannot satisfy the "legitimate expectations" prong of the prima facie case requirement, unless he offers proof as to (1) his employer's legitimate job performance expectations, and (2) analysis and evaluation of his performance in light of those expectations. See King, 328 F.3d at 149-50. Proof that a plaintiff or his co-workers believed the plaintiff to be meeting the legitimate expectations of their employer is not sufficient to satisfy this requirement. See id. at 149. Proof of positive performance evaluations by the employer is relevant, however, and can satisfy the third prong of the prima facie case requirement. See id. at 150.
In this case, Defendants have produced substantial evidence that Plaintiff was not performing his job at a level that met his employer's legitimate expectations at the time his employment was terminated. While Plaintiff has produced evidence suggesting that his performance was considered satisfactory and even more than satisfactory before Mr. Waters took over as Senior Director of Human Resources for Collins Aikman and that some of the persons who had supervisory responsibility over Plaintiff continued to believe his performance was satisfactory for some time thereafter, Defendants' evidence of numerous complaints about Plaintiffs performance and the deterioration of other supervisors' opinions of his performance throughout the spring of 2001 is strong. Nevertheless, because Plaintiff received good evaluations until at least the spring of 2001 and a "satisfactory" preliminary evaluation in March of 2001, the Court will assume for purposes of this decision that he can establish that he was meeting the legitimate expectations of Collins Aikman at the time his employment was terminated.
Assuming Plaintiff can establish aprima facie case of age discrimination, the burden shifts to Collins Aikman to articulate a legitimate, non-discriminatory reason for Plaintiffs discharge. Here, it is clear that Collins Aikman has done so. Specifically, Defendants have produced evidence of numerous complaints and concerns about Plaintiffs professionalism, his consistency or lack thereof in applying Collins Aikman policy, his management of the workers' administration program, and his general diligence.
Defendants having articulated a legitimate, non-discriminatory reason for the termination of Plaintiff s employment, the burden then shifts back to Plaintiff to produce sufficient evidence that Defendants' articulated reason is a pretext for age discrimination. While Defendant argues in his brief that the complaints on which Mr. Waters relied in forming his opinion about Defendant were not worthy of credence and that none of the other decision-makers stated concerns to Plaintiff about his performance until shortly before he was fired, he has failed to produce sufficient evidence from which a reasonable jury could conclude that Defendants' articulated reasons for firing Plaintiff were pretextual. It is undisputed, for example, that Plaintiff used profanity with some frequency, that numerous employees complained about him or his performance, and that Mr. Waters genuinely believed that Plaintiff was not performing his work in a diligent and appropriate manner. Additionally, with respect to discriminatory animus, the only evidence Plaintiff has produced of such animus were comments made three or four years earlier by an employee who did not participate in the decision to terminate Plaintiffs employment and comments made by Mr. Waters that "age and experience wasn't all that important in all situations" and that "the job had outgrown" Plaintiff. (Pl. Dep. at 148, 236). Neither of these sets of comments supports Plaintiffs claim of age discrimination. See Rowe v. Marley Co., 233 F.3d 825, 831 (4th Cir. 2000) (comments made by employee who was not decision-maker are not probative of pretext); Tinsley v. First Union Nat'I Bank, 155 F.3d 435, 444 (4th Cir. 1998) (motivation of decision-maker is most relevant to question of alleged retaliation); Dockins v. Benchmark Commun., 176 F.3d 745, 749 (4th Cir. 1999) (to be probative of discrimination, remarks must be more than stray, isolated comments); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511-12 (isolated comments made over two years before plaintiffs termination were too remote to be evidence of age discrimination). Thus, while Plaintiff asserts repeatedly in deposition that there were many employees supportive of his employment with Collins Aikman and that Mr. Waters appeared from the beginning unfairly to target Plaintiff, he has not produced sufficient evidence from which a reasonable jury could conclude that Defendants' proffered explanation for the termination of Plaintiff s employment is "unworthy of credence" and simply a pretext for age discrimination. See Reeves, 530 U.S. at 147, 120 S.Ct. at 2108; see also Dockins, 176 F.3d at 749 (plaintiffs own assertions of discrimination are insufficient to counter substantial evidence of legitimate non-discriminatory reasons for discharge). Accordingly, Defendants' motion for summary judgment as to Plaintiffs claim against Collins Aikman for age discrimination in violation of the ADEA is due to be granted.
II. Retaliation
Plaintiff also alleges that Defendants unlawfully retaliated against him in violation of the ADEA when they terminated his employment not long after he expressed his concern to Mr. Tinnell that Mr. Waters was discriminating against him on the basis of his age. Where there is, as in this case, no direct evidence that an employee was terminated in retaliation for engaging in protected activity, a plaintiff may prove retaliation with circumstantial evidence under a variant of the McDonnell Douglas burden-shifting analysis. See King, 328 F.3d at 150-51.
In order to establish aprima facie case of retaliation, a plaintiff must show: (1) that he engaged in protected activity; (2) that his employer took an adverse employment action against him; and (3) that a causal connection exists between the protected activity and the asserted adverse action. See King, 328 F.3d at 150-51. A close temporal proximity between the first two elements has been held to satisfy the third prong of the prima facie case requirement. See id. at 151. In this case, Defendants do not dispute that Plaintiff engaged in protected activity when he expressed concern to Mr. Tinnell on or about March 11, 2001, and it is further undisputed that Collins Aikman took an adverse employment action against Plaintiff when it terminated his employment. Because Plaintiffs termination occurred less than two months after Plaintiff spoke with Mr. Tinnell, Plaintiff has also established, for purposes of the prima facie case requirement, a causal connection between the protected activity and his termination. Cf id., 328 F.3d at 151 (finding causation prong of prima facie case requirement to be met where termination came two-and-a-half months after protected activity).
Because PlaintifF has produced sufficient facts to establish aprima facie case of retaliation, the burden shifts to Defendants to articulate a legitimate, non-retaliatory justification for his termination. See Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). As set forth above, Defendants have articulated legitimate reasons for the decision to terminate Plaintiffs employment. As these reasons in no way relate to Plaintiffs engaging in protected activity, the burden shifts back to Plaintiff to prove that the employer's reason is a pretext for unlawful retaliation. See King, 328 F.3dat 151.
While the close temporal proximity between Plaintiffs call to Mr. Tinnell and his termination is some evidence of pretext, it is the only evidence of pretext Plaintiff has produced and is not, therefore, sufficient to withstand Defendants' motion for summary judgment. Otherwise, an employee could continually engage in protected complaining and always get past summary judgment if ever fired for any reason. As discussed more fully above, Defendants have produced substantial evidence that Plaintiffs employment was terminated because of concerns about his job performance, particularly by Mr. Waters, not because he expressed some concern to Mr. Tinnell that he might be the victim of age discrimination. First, there is absolutely no evidence that Mr. Tinnell ever communicated that concern to any of the other decision-makers, and Mr. Tinnell was only one of five persons who, together, made the decision to terminate Plaintiffs employment. It is likely, therefore, that even if there were evidence that Mr. Tinnell voted in favor of Plaintiff s termination, at least in part, because Plaintiff complained about the alleged age discrimination, Plaintiffs employment still would have been terminated.
Second, even the reasons Plaintiff articulated for his termination have nothing to do with his complaining about potential age discrimination to Mr. Tinnell. Specifically, when asked in his deposition why he believed his employment was terminated by Defendants, Plaintiff responded that it was because he "bucked" Mr. Rogers when he refused, several years earlier, to fire two individuals Mr. Rogers requested that he fire and because he did not fit into the company image of young, attractive employees. (See Pl. Dep. at 311-12). Plaintiff did not assert, therefore, that he was terminated for having expressed concern to Mr. Tinnell that he was being discriminated against on the basis of his age.
Third, Plaintiff himself acknowledged in his deposition that nothing changed after he called Mr. Tinnell. According to Plaintiff, "[Mr. Waters] was hard-driving, and it just kept on and on and on." (Pl. Dep. at 336).
Finally, Plaintiff simply has not produced any evidence, other than his own self-serving statements, that Defendants' legitimate, non-retaliatory reasons for his termination are unworthy of credence. Defendants have produced evidence that numerous employees complained about Plaintiff between October 2000, when Mr. Waters took over responsibility at the division level for human resources, and March 2001, when the first steps were taken toward Plaintiffs termination. Without any evidence that contradicts Defendants' proffered motives for terminating Plaintiffs employment, no reasonable juror could conclude that these motives were a pretext for unlawful retaliation under the ADEA. See Tinsley, 155 F.3d at 444 (affirming summary judgment where plaintiff was terminated by new supervisor after eighteen years of employment and noting that opinions of co-workers and customers that plaintiff performed well could not establish pretext because such opinions "fail to address whether management honestly believed that [plaintiff] was doing a good job"). Defendants' motion for summary judgment as to Plaintiffs claim for retaliation under the ADEA will, therefore, be granted.
III. Wrongful Discharge in Violation of North Carolina Public Policy
With respect to Plaintiffs claim against Collins Aikman for wrongful discharge in violation of North Carolina public policy, the North Carolina Supreme Court has recognized that federal evidentiary standards apply to claims for wrongful discharge under state laws prohibiting employment discrimination. See North Carolina Dep't of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983); see also Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995). Since Plaintiff has not produced sufficient evidence from which a reasonable jury could conclude that Defendants violated either the anti-discrimination or anti-retaliation provisions of the ADEA, his state law claim for wrongful termination on the basis of his age fails as well.
IV. Tortious Interference with Contractual Relations
Finally, Defendants assert that they are entitled to summary judgment as to Plaintiffs claims against the individual defendants for their alleged tortious interference with Plaintiffs contract with Collins Aikman. Under North Carolina law, the tort of interference with contract has five elements: (1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) the defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) the defendant acts without justification; and (5) the defendant's conduct results in actual damages to the plaintiff. See United Lab., Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988); Reichhold Chem., Inc. v. Gael, 146 N.C. App. 137, 145, 555 S.E.2d281, 287 (2001), disc, review denied, 356 N.C. 677, 577 S.E.2d 634 (2003). With respect to the fourth requirement-that the defendant have acted without justification-the North Carolina Supreme Court has recognized that "[o]fficers, directors, shareholders, and other corporate fiduciaries have a `qualified privilege to interfere with contractual relations between the corporation and third party.'" Embree Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992) (quoting Wilson v. McClenny, 262 N.C. 121, 133, 136 S.E.2d 569, 578 (1964)). While this privilege is not absolute, it is overcome only by evidence that the insider's means or motives were improper. See Embree, 330 N.C. at 498, 411 S.E.2d at 924.
In this case, as to Plaintiffs tortious interference claim against Defendant Harold Rogers, there is no evidence that Mr. Rogers took part in the decision to terminate Plaintiffs employment, nor is there evidence that he exercised any influence in bringing that termination about. While Plaintiff states generally that he believes that Mr. Rogers was behind both Mr. King's and Mr. Waters' negative opinions about him, he has produced no evidence supporting this contention, and his bare allegation is not enough evidence to support a jury's finding that Mr. Rogers actually induced Mr. King or Mr. Waters to decide to terminate Plaintiffs employment. See Ennis v. National Ass'n of Business and Educ. Radio, 53 F.3d 55, 62 (4th Cir. 1995) ("Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.").
As to Plaintiffs tortious interference claims against Defendants Millard King and William Waters, Plaintiff has failed to produce sufficient evidence from which a reasonable jury could conclude that they acted without justification in voting to terminate Plaintiffs employment. Even if Plaintiff had produced such evidence, there is no evidence that Defendant King or Defendant Waters acted through improper means or as a result of an improper motive. See Embree, 330 N.C. at 498, 411 S.E.2d at 924. Accordingly, Plaintiff cannot satisfy the fourth requirement as to these defendants, and they are entitled to summary judgment.
CONCLUSION
While Defendants' decision to terminate Plaintiffs employment may or may not have been the correct decision, Plaintiff has not produced sufficient evidence from which a reasonable jury could conclude that his employment was terminated because of his age or because he engaged in protected activity under the ADEA. Defendants are, therefore, entitled to summary judgment as to his age discrimination and retaliation claims against Collins Aikman under the ADEA and as to his wrongful discharge claim under North Carolina law. Additionally, Plaintiff has not produced sufficient evidence to support his claims for tortious interference with contractual relations against Defendants Rogers, King, and Waters. Accordingly, Defendants' motion for summary judgment is due to be granted as to these claims as well. Judgment for Defendants will be entered contemporaneously herewith.