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Dutton v. Wal-Mart Stores East, LP

United States District Court, E.D. North Carolina, Eastern Division

February 25, 2014

MAX DUTTON Plaintiff,


TERRENCE W. BOYLE, District Judge.

This matter is before the Court on defendant's motion for summary judgment as to the claims of plaintiff Max Dutton. Plaintiff has responded, defendant has replied, and the matter is ripe for review. For the reasons discussed below, defendant's motion is granted.


A group of plaintiffs filed this action alleging unlawful employment practices by defendant as to themselves and other similarly situated individuals. Since the filing of the complaint, two plaintiffs' claims were transferred to different districts and several plaintiffs have stipulated to dismissal of their claims. Remaining before the Court is plaintiff Dutton and his claims for violations of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., intentional infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision and retention under state law.[1]


A motion for summary judgment may not be granted unless there are no genuine issues of material fact for trial and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the non-moving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). In determining whether a genuine issue of material fact exists for trial, a trial court views the evidence and the inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, "[t]he mere existence of a scintilla of evidence" in support of the nonmoving party's position is not sufficient to defeat a motion for summary judgment; "there must be evidence on which the [fact finder] could reasonably find for the [nonmoving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). "Conclusory or speculative allegations do not suffice, nor does a "mere scintilla of evidence" in support of his case." Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (citing Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir.1999) (per curiam)).

Plaintiff Max Dutton was hired by defendant in 1993 and was promoted to the position of store manager three years later. Dutton Dep. 162-63. For his entire career as a store manager, Dutton managed Store #2000 in Kitty Hawk, North Carolina. On the whole, Dutton received positive performance evaluations during his career with defendant. Dutton Dep. Exs. 13-15. Dutton's retirement took effect in February 2010. Battle Decl. ¶ 38.

In March 2009, an assistant store manager at Dutton's store filed a complaint against Dutton with human resources. Battle Dep. 5. The assistant store manager complained that Dutton had made inappropriate comments about her weight and personal appearance, that Dutton had treated other women inappropriately but that they were afraid to speak out, and that Dutton had violated defendant's policies by allowing an hourly-employee to engage in activities reserved for management-level employees, including answering Dutton's emails, maintaining keys to the building, and using Dutton's personal computer password information. Id. at 3-5.

Human resources determined that an expansive investigation would be necessary in light of the breadth of the allegations and concerns that employees would not feel comfortable speaking about Dutton's activities if he was present. Battle Dep. 6. Three of defendant's representative's arrived at Store #2000 on June 12, 2009. Dutton left the store with one member of the investigation team, Litchfield, and drove to Elizabeth City, North Carolina, where they had lunch and visited another of defendant's stores. Dutton Dep. 31-34. Dutton contends that he felt he had no choice but to leave the store and accompany Litchfield or else be fired. Id.

In September 2009, Litchfield submitted an investigation report. Litchfield Decl. Ex. 3. The report noted that Dutton had violated the following Walmart Policies: access control, global ethics, prizes and awards, volunteerism and charitable contributions, discrimination/harassment prevention, and workplace violence. Dutton then filed an "open door complaint, " alleging that he felt the investigation had been unfair. Mciver Dec. ¶ 5. Dutton met with a human resources director regarding his complaint upon his return from a planned paid leave of absence, wherein he voiced his concern about not being aware of the specific allegations against him. Id. ¶ 10. Dutton was reminded of the confidential nature of the investigation into his actions, Id. and the open door complaint filed by Dutton was ultimately determined to be without foundation and no wrongdoing was found to have taken place against him. Id. ¶ 23. The open door investigation further revealed that Dutton admitted knowing violations of defendant's policies. Id. Though, at the conclusion of the investigation it was recommended to Dutton's supervisor that Dutton be terminated, Dutton was instead issued the highest level of disciplinary action prior to termination, a decision-making day coaching and a performance improvement plan. Johnson Dec. ¶ 23. After meeting with human resources staff and being presented with a performance improvement plan, Dutton submitted a letter dated November 29, 2009, informing defendant's representatives who had led his investigation of his intent to retire effective February 1, 2010. Dutton Dep. Ex. 3. In his letter, Dutton stated that "I am happy and content to end my career at the store that has supported me throughout my Wal-mart career.... Wal-mart has become and always will be a part of my family." Id.

In December 2009, Dutton asked to rescind his retirement notification. Litchfield Dec. ¶ 36. This request was denied by defendant's regional team who had issued Dutton's decision-making day coaching and performance improvement plan discipline. Id. at ¶ 37. Dutton's retirement became effective on February 12, 2010. Battle Dep. ¶ 38. Dutton was fifty-five years old when his retirement took effect. Dutton was replaced at Store #2000 by a then forty-three year old male. Id. at ¶ 39. The current store manager of Store #2000 was also forty-three when selected to fill the position.


Summary judgment is appropriate for defendant on Dutton's ADEA claims. Dutton has alleged in his complaint that defendant harassed and discriminated against him due to his age, and in the alternative that his market manager's (Litchfield) conduct created a hostile work environment based on his age. Dutton further contends that he was ...

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