United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
This matter is before the Court on Defendant's Motion for Summary Judgment [Doc. #18] on Plaintiff's claims of age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA") and North Carolina's Equal Employment Practices Act ("NCEEPA"). For the reasons that follow, Defendant's Motion for Summary Judgment will be granted.
Defendant Burlington Coat Factory is a limited liability company in the business of selling consumer goods, including clothing, shoes, coats, and jewelry. On September 16, 1999, Defendant hired Plaintiff, then sixty-six years old, as a Department Manager over coats at Defendant's Concord Mills location. (Cannon Dep. 20 [Doc. #18-2 at 4].) In early 2009, when Plaintiff was seventy-six years old, Defendant eliminated the Department Manager position as a result of restructuring, and Plaintiff became the Area Manager over the youth clothing, linens, and shoes departments. In that role, Plaintiff supervised seven to ten employees. ( Id. at 28-30 [Doc. #18-2 at 9-11].) His primary responsibilities were the supervision of those employees, managing merchandise, serving customers, and sales in his departments. ( Id. at 30-31 [Doc. #18-2 at 11-12].) Plaintiff reported to Angela Williams, the Merchandise Manager, and Reginald Felder, the Store Manager over Plaintiff's store. ( Id. at 22-23 [Doc. #18-2 at 5-6]; Cawley Decl. [Doc. #18-5] ¶ 5.) Mr. Felder was supervised, in turn, by District Manager Bozena Jenc and Regional Vice President Norma Wilson. (Canon Dep. 23 [Doc. #18-2 at 6]; Cawley Decl. [Doc. #18-5] ¶¶ 6-7.)
On or about December 2 or 4, 2009, Angel Guzman, Defendant's Senior Vice President for the southeast region, visited the Concord Mills store. (Cannon Dep. 64 [Doc. #18-2 at 22]; Guzman Decl. [Doc. #18-7] ¶ 4; Cawley Decl. [Doc. #18-5] ¶ 8.) After his December visit, Mr. Guzman left a "to-do" list with the managers of the store detailing work that needed to be performed in each department, including Plaintiff's. (Cannon Dep. 64 [Doc. #18-2 at 22].) With respect specifically to Plaintiff, Mr. Guzman told Mr. Felder, the Store Manager, that Plaintiff's three departments had the lowest sales in the entire store. (Guzman Decl. [Doc. #18-7] ¶¶ 4-5.) On December 7, 2009, Mr. Guzman sent an email to Glenn Hodge, the Regional Human Resources Manager, and Louis Ansara, Senior Vice President of Human Resources for Burlington, with the subject line "RE: Hensil [sic] Cannon Store # 318" stating:
This guy should have being [sic] addressed long ago and now we will move forward with the proper documentation. His depts were the worst in the stores and I told them he needs to be documented on the visit.
The reason the store is broken down by area managers is due to the volume. The three areas he is responsible for produce the lowest volume in the stores so he really does not have a leg to stand on.
(Guzman Decl. Ex. 1 [Doc. 18-7 at 5].)
At least partly in response to Mr. Guzman's visit, on December 9, 2009, Mr. Felder and Ms. Williams, the Merchandise Manager, issued Plaintiff a Notice of Corrective Action detailing alleged problems with his departments, including, among other things, floor presentation, merchandise guidelines, signage, item sizing, and an excessive amount of shoe "mis-mates" (i.e., when a shoe is missing its match). (Cannon Dep., Ex. 5 [Doc. #18-4 at 13].) The Notice further provided that Plaintiff had a "hard time communicating expectations to his team to execute and enforce" the guidelines. (Id.) Plaintiff disputed the violations and refused to sign the Notice. (Cannon Dep. 66, 70-72 [Doc. #18-2 at 24, 28-30].) Also on December 9, 2009, Plaintiff met with Jill Taddeo, the Merchandise Coordinator for the Southeast Region for Shoes (Cawley Decl. [Doc. #18-5] ¶ 11; Cannon Dep. 81 [Doc. #18-2 at 35].) Ms. Taddeo outlined issues that needed to be fixed in the shoe department, provided guidance on how to maintain the area, and reviewed the shoe department procedure manual with Plaintiff. (Cannon Dep. 82-83 [Doc. #18-2 at 36-37].)
On December 15, 2009, Plaintiff wrote to Defendant's Human Resources Department asking for "inquiries that relate to retaliation, discrimination and equal opportunities" and asserting that Mr. Felder, the Store Manager discriminated against "older white employees." (Cannon Dep. Ex. 6 [Doc. #18-4 at 16].) In support of that contention, Plaintiff alleged that he was given fewer days off than other managers; that he was forced to work despite an injury he suffered on the job; that he was given less help in his department than a "female friend" of Mr. Felder received; and that his employees were taken from their proper areas in order to run the store's cash registers. (Cannon Dep. Ex. 6 [Doc. #18-4 at 16-17].) In his letter, Plaintiff also stated that, during Ms Taddeo's visit on December 9, 2009, she said, "You know that we are bringing in younger and new employees." (Cannon Dep. Ex. 6 [Doc. #18-4 at 16].) Furthermore, Plaintiff noted that he was the only manager who had received a Notice of Corrective Action after Mr. Guzman's visit, despite the fact that, according to Plaintiff, Mr. Guzman's to-do list noted fewer problems with Plaintiff's departments than with other Area Managers' departments. (Id.) Regional Human Resources Manager Glenn Hodge investigated Plaintiff's complaints and concluded, on December 29, 2009, that they were "unfounded." (Hodge Decl. [Doc. #18-9] ¶ 5.)
In February 2010, the Concord Mills store prepared for its annual inventory of stock (Cannon Dep. Ex. 8 [Doc. #18-4 at 26]), which required the stock in each department to be ticketed. (Cannon Dep. 116 [Doc. #18-3 at 8].) Because Plaintiff could not match many of the shoes in his department, Plaintiff was unable to ticket all of the stock in the shoe department. ( Id. at 108, 116 [Doc. #18-3 at 2, 8].) Shortly thereafter, on February 25, 2010, Mr. Felder issued a Final Written Warning to Plaintiff for "Poor Performance." (Canon Dep. Ex. 8 [Doc. #18-4 at 26].) In relevant part, that Warning provides:
[Plaintiff] has demonstrated a lack of improvement and response to serious concerns with his job performance as an Area Manager for shoes, youth and linens department. Merchandise and recovery standards continue to be below expectations as follows:
*floor presentation, merchandise guidelines not executed
*categories not in compliance
*recovery below standards
*shoe department consistently for seven months failed Shoe Checklist conducted by store ...