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Smith v. Premier Property Management

United States District Court, M.D. North Carolina

March 4, 2019

PREMIER PROPERTY MANAGEMENT, d/b/a the Edge Flats and d/b/a Deacon Station Townhomes, Defendant.


          N. Carlton Tilley, Jr. Senior United States District Judge.

         This matter is before the Court on Defendant Premier Property Management's Motion for Partial Summary Judgment on claims of age discrimination and unfair and deceptive trade practices. (Mot. for Partial Summ. J. [Doc. #23].) Premier Property Management (“Premier”) argues that there is no evidence that Plaintiff Pamela H. Smith was terminated because of her age, while the undisputed evidence shows that she was terminated because she did not meet Premier's legitimate performance expectations, and the unfair and deceptive trade practices claim is merely a breach of contract claim. (Id. ¶¶ 1, 2.) For the reasons explained below, the Court agrees and grants the motion.


         In February 2016, Smith and her business Pam's Cleaning Company, LLC (“Pam's Cleaning”) were providing cleaning services at two apartment complexes in Winston-Salem, North Carolina, both owned by Premier - Edge Flats and Deacon's Station. (Decl. of Pamela Smith ¶¶ 3, 4 (Dec. 20, 2018); Decl. of Jen Allen ¶ 3 (Nov. 28, 2018).) While cleaning the front office of Edge Flats sometime after February 14, Smith began talking with Jennifer Allen, Vice President of Student Living for Premier. (Decl. of Smith ¶ 7; Decl. of Allen ¶ 1; Dep. of Jennifer Bass Allen 13:19-21, 28:12-16 (Oct. 17, 2018).) Although Allen was based in Florida, she was manning the front office after the property's manager and assistant manager quit abruptly. (Dep. of Allen 10:1-3, 13:19-21, 28:12-16.)

         Allen and Smith began talking about Edge Flats' need for a property manager and whether Smith would be interested in the position. (Decl. of Smith ¶ 7; Dep. of Allen 37:4-11.) They discussed the job responsibilities, including working with vendors and maintenance for property upkeep and other services. (Decl. of Smith ¶ 7.) Allen “assured [Smith] she could handle the job with [her] background and that she would support and train” her. (Id.)

         Ultimately, Smith (then age fifty-five), Anthony White (then age fifty-four), and LaRobb Billingsley (then age thirty-two) applied to be Edge Flats' property manager. (Dep. of Allen 11:3-15; Decl. of Allen ¶ 5; Decl. of Tracy G. Jones Walker ¶ 12 (Nov. 28, 2018); Dep. of Pamela Smith 23:3-6 (Sept. 20, 2018).) Although Smith had never worked as a property manager, Allen thought Smith was “perfect for it”. (Dep. of Allen 37:16-20, 47:10-11; Decl. of Smith ¶ 7.) She had successfully run her own company, Pam's Cleaning, for twenty-five years, and managed employees while doing so. (Dep. of Allen 38:10-11, 16-19; see also Decl. of Smith ¶ 7 (averring that Allen “appeared to be impressed by my experience in running a business for over 25 years” and “by the work my cleaning company performed at the Edge Flats”.) She had worked with Edge Flats' developers, with whom she was close. (Dep. of Allen 46:15-17.) This relationship, along with Smith's knowledge of “the building inside and out”, was “intangible and part of the reason she was the best candidate.” (Id. 46:18-20.) Allen also hoped that Smith would use her business experience and knowledge of Edge Flats to improve the property's occupancy rates, among other things. (Decl. of Allen ¶ 10.)

         On March 11, 2016, Allen offered Smith the job as Edge Flats' property manager. (Dep. of Smith 21:3-7, 20-21.) Smith accepted the position and began work on March 14, 2016. (Decl. of Allen ¶ 10; Decl. of Smith ¶ 8.) Smith had previously signed a lease with the property's prior owners, so when she decided to continue to live at Edge Flats as its property manager, she received a twenty-five percent rent reduction, a typical reduction for employees. (Decl. of Walker ¶¶ 18, 19; Dep. of Smith 141:12-17; Dep. of Allen 69:17-18.)

         Although it is disputed precisely when Allen gave Smith a written job description, Smith did receive one and discussed it with Allen. (Dep. of Smith 28:2-29:17, 29:23-30:9.) Smith understood the property manager's responsibilities to include the property's condition, staff, vendors, and residents. (Id. 30:13-31:6.) Smith's financial responsibilities included preparing leasing reports, vendor reports, and money flow reports for Allen. (Id. 31:7-12, 33:16-20.) Leasing reports were updated weekly, generated monthly, and detailed who was moving in and out. (Id. 31:16-25, 32:1-3, 33:2-8.) Money flow reports recorded cash flow, rent paid, delinquencies, and petty cash. (Id. 32:4-10.)

         To train Smith, the property manager from another of Premier's properties came to Edge Flats for two to three weeks, Tuesday through Thursday, “to help her with day-to-day procedures”. (Dep. of Allen 39:20-40:12; cf. Decl. of Smith ¶ 13 (averring that she received no formal training, but another property manager met with her two to three days per week for an hour each day to learn how to input data and how to read data).) Premier's trainer also came to Edge Flats for a week and trained Smith and others on software and “any of the issues that they may not have caught on from what [the other property manager] had provided.” (Dep. of Allen 43:5-9.) Premier then hired Malcolm Lindor as a marketing director who trained Smith on ways to market the property and lived there for free during this time, as he was expected to move to other properties and maintained a permanent residence elsewhere. (Id. 43:9-44:2; Decl. of Walker ¶¶ 22-24.) There were also weekly manager calls discussing policies and procedures during which managers could ask questions. (Dep. of Allen 44:4-6.)

         In addition to hiring Smith as Edge Flats' property manager, Allen hired Billingsley, who had applied to be property manager, as Edge Flats' leasing manager. (Id. 31:10-18, 32:3-4.) Billingsley, whose salary was half of Smith's, was permitted to live on site for free, based on his compensation and need. (Decl. of Walker ¶ 21; Dep. of Allen 69:13-18.) He was “required to facilitate leases with prospects that [came] in to sign them, make sure the documents [were] correct and entered, and process those” for Smith's approval. (Dep. of Allen 32:5-11.) A manager from Deacon's Station trained Billingsley on the online leasing program, training that Smith did not receive because she was not handling leasing. (Id. 33:9-19; Dep. of Smith 144:19-145:11.)

         “Occupancy rates are critical to the financial success and operating conditions of apartment-management companies like Premier.” (Decl. of Walker ¶ 4; see also Dep. of Smith 33:21-23 (testifying that “occupancy rate is a very important thing in any property”.) When Premier acquired Edge Flats in October 2015, the property was “in a distressed financial condition” because its occupancy rates were at fifty percent or less. (Decl. of Walker ¶¶ 3, 5.) There is a dispute about who bore primary responsibility for increasing the number of leases - Smith, Billingsley, or Lindor. (Decl. of Smith ¶ 15 (averring that Billingsley and Lindor were primarily responsible); Dep. of Allen 32:12-33:4 (testifying that “everyone's job is to lease”.) Smith knew that the occupancy rate was forty-three percent when she began as property manager, but she was unaware until several months later in August that Allen expected the rate to increase to ninety percent. (Dep. of Smith 53:4-7, 93:6-17.) Nevertheless, Smith understood that as the property manager, she oversaw leasing and was required to be at all of the events held for residents to ensure their continued enjoyment of the property. (Id. 33:24:-34:11, 67:22-68:5; Decl. of Smith ¶ 15.) Meanwhile, Lindor and the leasing staff went to restaurants or events to pass out Edge Flats flyers, cozies, and magnets to generate new leases. (Dep. of Smith 34:15-35:2.)

         In June 2016, admittedly worried about obtaining his bonus, Lindor emailed Allen with a list of concerns about Edge Flats - Billingsley's and Smith's failure to input a lease, Billingsley's and Smith's failure to resolve internet problems, and Smith's failure to address resident smoking and unauthorized use of the gym. (Email from Lindor to Allen (June 20, 2016); Dep. of Smith 76:13-15.) Allen was on vacation at the time and asked Tracy Jones, the Human Resources manager, to counsel Billingsley and Smith on Allen's behalf. (Email from Allen to Lindor (June 20, 2016); Email from Allen to Jones (June 20, 2016).) That same day, Jones called Smith to speak with her about these issues and told Smith she was there to help her. (Decl. of Walker ¶ 29; Dep. of Smith 40:19-25.) Until this incident, Smith avers that she “had performed [her] job well and had not received any complaints from Ms. Allen regarding [her] job performance.” (Decl. of Smith ¶ 10.) Although Smith was surprised by Lindor's complaints, she admitted the internet problems and her responsibility to contact vendors, difficulty managing Billingsley who was insubordinate at times, and non-residents' use of the gym despite community rules prohibiting them from doing so. (Decl. of Walker ¶¶ 29, 30; Dep. of Smith 43:3-22, 44:14-45:12, 46:5-11, 47:3-48:1.) She also acknowledged that Lindor had seen smokers in the stairwell and that she had left a note on the door after not being able to contact the resident. (Dep. of Smith 48:10-19.)

         After Jones' and Smith's telephone conversation, Jones reduced its substance to writing on an Employee Counseling Report. (June Emp. Counseling Report, Ex. 4 to Dep. of Smith; Decl. of Smith ¶ 10 (averring that “[i]n June 2016, I was given a ‘write up'”).) Jones wrote that Smith “asked questions, she listened, she took notes, and she immediately told me that she would follow up on all the issues we discussed.” (June Emp. Counseling Report.) They “discussed her ability to improve in the realm of employee and property management” and that both of them wanted her to address employee issues, “ask more questions, improve her leadership skills, follow up on every request, . . . communicate, . . . [and] use the resources around her.” (Id.) She was encouraged “to lean on her sister property . . . whenever necessary.” (Id.) Jones described Smith as “teachable” and told her that she wanted her to succeed. (Id.) The “Improvement Timetable” was “Immediate”, and the “Consequences for Failure to Improve” were “Discipline Up To/Including Termination”. (Id.)

         During her deposition, Smith agreed with Jones's assessment of their conversation, but disagreed with some of the issues that Lindor raised. (Dep. of Smith 50:11-51:8, 53:16-18.) She believed that Lindor complained to Allen because “he was working really hard to get his bonus.” (Id. 51:7-53:3; 76:10-15 (testifying that, to her knowledge, Lindor had no other motivation for making these complaints than earning his bonus).) Smith also did not realize the import of Jones's call, but instead thought it was a conversation to check on the property, which she understood Jones would do in Allen's absence. (Id. 54:16-22.) When Allen returned and gave the Employee Counseling Report to Smith, Smith understood that Allen was in the process of terminating Billingsley and the report was needed to facilitate his termination. (Id. 37:17-38:2; 55:8-16; Decl. of Smith ¶ 10 (“I was given the write up allegedly to support Malcolm Lindor's desire to terminate LaRobb Billingsley.”).) Indeed, Allen did terminate Billingsley following these events for insubordination toward Smith. (Dep. of Allen 34:17-22; Decl. of Allen ¶ 17.) He was thirty-three years old at the time. (Decl. of Allen ¶ 18.)

         After Smith's conversation with Jones and receipt of the Employee Counseling Report, Allen noticed that “Smith tried to improve her performance, including with her management and leadership duties.” (Id. ¶ 19.) However, in mid-August, Allen observed that “Smith's deficient management and leadership skills” began causing other problems at Edge Flats. (Id. ¶ 20.) On August 12, 2016, Premier's managing partner, Patrick Wable, emailed Smith, Lindor, and Allen asking for an explanation for inconsistent and conflicting information in leasing reports about occupancy rates and apparent lease cancellations. (Email from Wable to Smith, Lindor, Allen (Aug. 12, 2016); Dep. of Allen 70:24-71:2.) The discrepancies arose when Lindor removed several canceled leases that had remained in the system since February, before Smith's hire, which caused the occupancy rate to change, without notice or explanation to Wable or Allen. (Dep. of Smith 103:11-104:20.) According to Smith, Wable was “very upset” and Allen was concerned about the accuracy. (Id. 104:6-8.) Although Smith believed the issue to be Lindor's and his leasing staff, she was aware of the canceled leases in the program and was admittedly responsible for the accuracy of the reports. (Id. 104:21-106:1.) During her deposition, Smith ...

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